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Bradley D. Jesson, Chief Justice.
This contempt proceeding, an original action, follows our ruling on December 5, 1994, in which this court, on de novo review, issued an injunction against Jennings and Mitzi Osborne, enjoining them from placing massive Christmas light displays on and about their home on Cantrell Road in Little Rock. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994). We ordered the Osbornes to abate the nuisance, and remanded the case to the chancellor for enforcement of the injunction.
Thereafter, the Osbornes filed a motion for stay of mandate, in which they stated their intentions to file a petition for a writ of certiorari with the United States Supreme Court, and suggested that the injunction was extremely broad and vaguely worded. In a per curiam opinion delivered on December 16, 1994, we denied the stay and reiterated our earlier directives, noting that the injunction was “short, concise, and readily understandable.” Osborne v. Power, 319 Ark. 52, 890 S.W.2d 574 (1994). We once again explained that “massive commercial lighting displays generated by commercial transformers are not appropriate in quiet residential neighborhoods and violate express provisions of bills of assurances.” Id. at 53.
Three days later, on December 19, 1994, the appellees filed a motion for contempt, alleging that Jennings Osborne had violated our orders by illuminating displays on December 17,18, and 19, 1994. Upon considering this motion, we ordered Osborne to appear on December 27, 1994, to show cause why he should not be held in contempt of court for willfully disobeying the injunction. Osborne v. Power, 319 Ark. 177, 890 S.W.2d 575 (1994). Osborne appeared with counsel at the show-cause hearing and pleaded not guilty.
On January 9, 1995, we denied the Osbornes’ petition for rehearing on the merits of the original appeal, and appointed the Honorable George Cracraft as master to conduct an evidentiary hearing for the limited purpose of determining (1) whether Osborne reduced substantially the size and extravagance of the display at or about his home to a level which would not attract the large crowds that had been drawn to the neighborhood in the past; (2) whether Osborne continued massive Christmas light displays on and about his home that are calculated and do attract large numbers of visitors to the neighborhood; and (3) whether Osborne reduced the volume of any sound accompanying the display so that it is not audible from within the closest homes of neighbors. Osborne v. Power, 319 Ark. 239, 890 S.W.2d 577 (1995). In referring these questions to the master, we gave him the power to allow the parties to produce evidence “including, but not limited to, the comparative differences in the size, construction, and electrical energy used in the displays of 1993 and 1994, as well as the comparative foot and vehicular traffic involved.” Id. at 241. (Emphasis added.) We specifically reserved for our ultimate determination the question of whether Osborne, by lighting his display on December 17, 18, and 19, 1994, willfully disobeyed our prior December 5 and 16, 1994, orders.
Following a hearing on March 13 and 14, 1995, the master submitted his report, which included findings of fact that Osborne had substantially reduced the size and extravagance of his display; that the 1994 display was not calculated to and did not attract unusual numbers of visitors to the neighborhood; that there was little or no sound generated by the display; and that all of Osborne’s actions, if contemptuous, were taken on advice of counsel.
The appellees filed a notice of appeal of the master’s findings, to which the Osbornes responded by filing a motion to strike the notice of appeal. In a per curiam opinion delivered May 8, 1995, we stated that we would treat the appellees’ notice of appeal as an objection to the master’s report, see Ark. R. Civ. P. 53(e)(2), and Osborne’s motion to strike the notice of appeal as a motion to strike the objection. Osborne v. Power, 320 Ark. 466, 896 S.W.2d 905 (1995). We asked the parties to brief their respective positions, which have been filed and are currently before us for consideration on the issue of whether Osborne is guilty of criminal contempt. The United States Supreme Court denied Osborne’s petition for writ of certiorari on June 19, 1995.
Pursuant to Ark. R. Civ. P. 53(e)(2), this court must accept the master’s findings of fact unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made by the master. Casteel v. McCuen, 310 Ark. 568, 838 S.W.2d 364 (1992). See also Reporter’s Note to Rule 53. It is thus appropriate to examine the master’s findings on each of the referred questions.
I. Whether Osborne reduced substantially the size and extravagance of the display at or about his home to a level which would not attract the large crowds that had been drawn to the neighborhood in the past
Jennings Osborne erected Christmas light displays in 1993 and 1994 on three lots of approximately equal size which front on Cantrell Road. At the hearing conducted by the master, these lots were referred to as the “east lot,” the “main” or “residential lot,” and the “west lot.”
In finding that Osborne substantially reduced the size and extravagance of his 1994 Christmas display, the master relied on the testimony of Richard McCormac, a full-time employee of Osborne, who was in charge of hanging the lights. McCormac testified on his employer’s behalf that in 1993, 265,480 lights were included in the display on the west lot, as compared to 89,760 lights in 1994, representing a 69 percent reduction. On the east lot, 268,080 lights were included in the 1993 display, as compared to 84,280 in 1994, representing a reduction of 67 percent. On the main or residential lot, 2,642,000 lights were included in the 1993 display, while only 560 lights were illuminated on this lot in 1994. According to McCormac’s calculations, in 1994 the overall reduction of lights on all three lots as compared to 1993 was approximately 95 percent.
The master also made specific reference to the expert testimony of Steve Menhart, a professor of electronics at the University of Arkansas at Little Rock, who stated that in 1993, over 1600 KWH per hour of use in electrical energy was expended in the displays. In 1994, the consumption of energy was reduced to 124 KWH per hour. The energy consumption in 1994 was less than 7.7% of the energy required in previous years.
While we expressly did not limit the master to conducting inquiry into the comparative differences in the size, construction, and electrical energy used in the displays of 1993 and 1994, his finding on this question appears to be based in large measure on the relative differences in the number of lights used and the amount of electrical energy expended. Even so, we cannot say that this finding was clearly erroneous.
II. Whether Osborne continued .massive Christmas light displays on and about his home that are calculated to and do attract an unusually large number of visitors to the neighborhood
The master answered this question in two parts: (1) whether the number of visitors to the neighborhood was reduced in 1994; and (2) whether Osborne’s conduct was calculated to reduce the number of visitors to be drawn to the neighborhood. The master resolved each part of the question in Osborne’s favor. While recognizing that there was conflicting testimony on the issue of whether unusual numbers of visitors were attracted to the neighborhood in 1994, the master concluded that the video cassettes introduced and exhibited at the hearing indicated a reduction over 1993.
In our order appointing the master, we stated that the master could allow the parties to present evidence of “the comparative foot and vehicular traffic involved.” 319 Ark. at 241. Each of the appellees’ two witnesses testified at the hearing that traffic was backed up during the 1994 display. Particularly, Sgt. Tom Bernard of the Little Rock Police Department stated that cars were lined up for 3/4 mile to the east, and 1/2 mile to 1-430 to the west. This testimony, however, was contradicted by that of several defense witnesses, none of whom experienced or observed vehicular traffic problems, and all of whom observed few pedestrians during the 1994 display. When considering this testimony and viewing the videos presented, we do not conclude that the master’s finding as to the decrease in pedestrian and vehicular traffic in 1994 was clearly erroneous.
However, this is not the complete answer. Reductions over 1993 are not enough to resolve the question of whether the 1994 display attracted unusually large numbers of visitors to the neighborhood. The 1994 traffic on the three nights in question must be compared to “usual” Cantrell Road traffic, not to the mass congestion occasioned by the 1993 Osborne display. In short, the master used the wrong measuring stick with regard to the 1994 traffic.
The master recognized in his report that the more difficult question was whether Osborne’s 1994 display was calculated to attract unusually large numbers of visitors. In answering this part of the second question, the master in effect rephrased the question again into a comparison of the 1994 display and the 1993 display. That was not the issue. The question referred was whether the 1994 display was calculated to attract an unusually large number of visitors to the neighborhood. The master found that Osborne relied upon advice of his counsel with regard to the 1994 display and that by resolving any doubts in Osborne’s favor, “it would be a reasonable inference that his conduct was calculated to reduce the number of visitors to the neighborhood.” Again, reduction is not the issue. Calculation is. Osborne might well have calculated to reduce the number of visitors as compared to 1993. The question, however, is whether the 1994 display constituted a massive Christmas display calculated to attract an unusually large number of visitors to the neighborhood. This question was really not addressed by the master except in terms of a reduction in visitors from prior years.
We accept the findings of the master on question two as they relate to the reduction in traffic generated by the 1994 display as compared with previous years and as to Osborne’s inferred intention to reduce such traffic in comparison with past Christmas displays. Insofar as his findings on these questions exceed those issues, we hold that they are clearly erroneous.
III. Whether Osborne reduced the volume of any sound accompanying the display so that it would not be audible from within the closest homes of the neighbors
Again, the master answered this question in Osborne’s favor. The only evidence presented at the hearing was that there was little or no sound generated by the 1994 display. Even appellee Fiser testified that he did not recall any sound flowing from the 1994 display. Thus, we cannot say that the master’s finding on this issue was clearly erroneous.
Holding on contempt
The master recognized that the advice Osborne’s attorney gave his client in five areas appeared to have been designed to reduce the number of visitors as compared to 1993:
(1) The size and density of the display was reduced by 95 percent;
(2) The public and media were given no advance notice of when the display would be illuminated;
(3) Visitors were not permitted to enter the residence compound as they had in the past;
(4) Osborne and his wife did not make any appearance during the display; and
(5) The display was illuminated for only three nights rather than seven nights as in previous years.
As the master and Osborne correctly note, we have recognized that, although acting on advice of counsel is not a complete defense to contempt, it is a strong mitigating factor. Folsom v. State, 216 Ark. 31, 224 S.W.2d 44 (1949) However, as this court said in the Folsom case:
The fact that petitioner acted on advice of counsel is of course not a defense to the charge, but it does lessen the seriousness of the offense. The penalty in a case of this kind, however, serves a dual function. Not only is the contemnor to be punished for his conduct, but, as we said in Poindexter v. State, 109 Ark. 179, 159 S.W. 197, 46 L.R.A., N.S. 517, the dignity and authority of the court must be vindicated. Reliance upon the advice of counsel affects the first consideration, but it is nevertheless true that in the eyes of the general public the court’s order has been flouted.
Id. at 35.
We have no hesitation in concluding that our December 5 and 16 orders have been flouted. Osborne maintained massive Christmas lights displays in 1994 after we expressly forbade him to do so. Undisputed evidence at the hearing indicated that the displays on the east and west lots were indeed of massive stature. The 1994 display contained some 174,000 lights. The “west wall” of lights was 30 feet high. The “east wall” of lights was 55 feet high. The strings of lights on these walls were separated by one inch in 1993, and four inches in 1994. The overall dimensions or “framework” of the displays on the east and west lots were unchanged. The only difference was fewer lights were illuminated. From a review of all the evidence, we hold that the 1994 display was calculated to and did attract an unusually large number of visitors to the neighborhood. With regard to calculation, two factors stand out. The placing of 174,000 lights illuminated over three adjacent lots in itself is a call for attention. It remained in 1994 a massive display, albeit on a smaller scale than previous years. It constituted a massive commercial lighting display which we deemed not to be appropriate in a quiet residential neighborhood with restrictive covenants. Osborne v. Power, 319 Ark. 52, 53, 890 S.W.2d 574, 575 (1994). In the recent motion picture Field of Dreams, it was said, “If you build it, they will come.” Mr. Osborne built it, and they did come. He recognized that would occur as evidenced by the fact that he hired eight off-duty deputy sheriffs to control the traffic before the lights were turned on. This action demonstrates willful and intentional calculation to attract an unusually large number of visitors to the neighborhood. These eight off-duty officers were joined by sixteen Little Rock Police Department Officers to control the traffic. In light of the evidence, we conclude that Jennings Osborne is in contempt of court for willfully and intentionally illuminating massive displays on December 17, 18, and 19, 1994, in violation of the orders of this court.
Punishment
In our February 20, 1995, mandate, we stated that the contempt proceedings were to be considered criminal in nature with a possible range of punishment as set forth in Ark. Code Ann. § 16-10-108 (Repl. 1994). This statute provides in part that every court of record shall have the power to punish, for criminal contempt, the “willful disobedience of any process or order lawfully issued or made by it,” § 16-10-108(a)(3), and allows for punishment up to fifty dollars ($50.00) and a ten-day jail sentence. We also referred the parties to our decision in Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). In Carle, we recognized that § 16-10-108(a)(3) was not a limitation on the power of the court to impose punishment for disobedience of process. We observed that the term “process” in the sense of the statutes is a comprehensive term that includes “all writs, rules, orders, executions, warrants, or mandates issued during the progress of an action.” Id., citing Arkansas Dep’t of Human Servs. v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991). (Emphasis added.) Thus, Osborne’s actions in violating our December 5 and 16 orders fall within the inherent power of the court to punish for contempt, and we are not bound by the limitations set forth in § 16-10-108(a)(3).
Accordingly, we assess fines of $500.00 for each violation of our December 5 and 16 orders on December 17, 18, and 19. We sentence Osborne to ten days in the county jail, with ten days suspended.
We further order Osborne to pay $3500.00 in costs for the fee of the master, and $3500.00 in attorney’s fees to the attorney for the appellees.
Case remanded to chancellor for enforcement of injunction.
Special Justice Ernie E. Wright joins in this opinion.
Newbern and Brown, J.J., not participating. | [
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Tom Glaze, Justice.
This appeal is a companion one to Regional Care Facilities, Inc. v. Rose Care, Inc., No. 95-458, which is also decided today. While these two cases have not been consolidated, the procedural events in each are the same and are important in deciding the respective appeals. While not mentioned in case no. 95-458, a brief discussion of the statutory history giving rise to these cases might be helpful.
In 1987, the General Assembly enacted statutes forming the Arkansas Health Services Commission and the Arkansas Health Services Agency to evaluate the availability and adequacy of health facilities and health services related to long-term care facilities and home health care service agencies. Through Act 422 of 1989, the General Assembly imposed a moratorium on the construction of new home health care agencies or nursing homes from March 8, 1989, until June 1, 1989. As part of that Act, the Commission was empowered to remove “any and all of the moratoria any time after June 1, 1989 , provided the Commission has duly adopted and promulgated standards for the review of the health facility for which the moratorium is removed.” Ark. Code Ann. § 20-8-106(a)(1) (Repl. 1991). Subsequently, the Commission promulgated the “Arkansas Health Services Commission Policies and Procedures for Permit of Approval Review.”
As is factually set out in companion appeal no. 95-458, the Health Services Agency in February 1992, published notice that a permit of approval (POA) would be issued by the Health Services Commission for one 70-bed nursing home facility in Benton County. Four applications to construct the facility were submitted. Regional Care Facilities, Inc. (Regional), filed two applications, one for a 70-bed unit in Rogers and one for a 70-bed facility in Bentonville. Rose Care applied to build a 70-bed facility in Bentonville. The other application was filed by Innisfree for a 70-bed nursing home in Rogers.
The Agency “in considering the need for only one facility” recommended to the Commission that the POA be awarded to Innisfree. Included in the Agency recommendation, however, was the statement that the Commission “might consider approving a second facility.” The Agency recommended that a second POA be granted to Regional for the construction of a 70-bed unit in Bentonville.
The Agency then notified the applicants of its recommendations and published notice of a Commission hearing on “Proposals for new 70-bed nursing homes.” At the hearing, each of the applicants discussed its application. The Rose Care representative voiced concern over the possibility of the approval of a second POA and referred to the lack of notice concerning the second POA.
The Commission followed the Agency recommendations and awarded one POA to Innisfree for a 70-bed facility in Bentonville and endorsed the Agency’s recommendation to award an additional POA for seventy beds to Regional. Notice of the decision was sent to the applicants, and Rose Care filed an appeal with the Commission seeking, in effect, reconsideration of its decision. The Commission set a hearing for September 30, 1992, to consider Rose Care’s review requests. However, while the administrative review hearing was still pending before the Commission, Rose Care filed its complaint against the Agency and Commission on September 28, 1992, in circuit court, wherein it alleged it anticipated the Commission would grant the second POA to Regional at the scheduled September 30, 1992 hearing unless the court enjoined the permit’s issuance. On September 28, 1992, the circuit court granted Rose Care’s request for injunctive relief by entering an ex parte order. Regional later was allowed to intervene, and among other things, it contended Rose Care’s lawsuit was premature because no final Agency (Commission) decision had been made at the time the court’s ex parte restraining order was issued. In sum, Regional, the Agency, and the Commission requested summary judgment be granted, contending Rose Care had failed to exhaust its administrative remedies, and the circuit court was without jurisdiction to have issued its ex parte order. We agree.
Citing Ark. Code Ann. § 25-15-207(d), Rose Care submits it was not required to exhaust its administrative remedies before seeking a declaratory order from the court. That statute provides as follows:
(d) A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.
It is important to emphasize at this point that declaratory actions are intended to supplement rather than replace ordinary causes of action. Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 344, 687 S.W.2d 840 (1985). In Rehab,, the Arkansas State Health Planning and Development Agency granted a certificate to Rehab Hospital to construct a hospital in Jonesboro. Delta-Hills Health Systems Agency filed a motion for reconsideration after conducting a telephone poll of its executive committee and before any action was taken on the motion, Rehab filed suit in circuit court alleging the reconsideration motion should be voided since Delta-Hill’s telephone poll violated the Freedom of Information Act. In upholding the trial court’s decision refusing to void the motion, this court stated:
It seems to be now a recognized doctrine that requires administrative relief to be sought before resorting to declaratory procedure, wherever administrative relief is afforded and this requirement is not one merely requiring the initiation of administrative procedure, but the administrative procedure must be pursued to its final conclusion before resort may be had to the court for declaratory relief
The Rehab decision is consistent with prior law on this subject. For example, the court in Boyett v. Boyett, 296 Ark. 36, 598 S.W.2d 86 (1980), stated that declaratory relief is not proper when the identical questions involved in the declaratory judgment proceeding are already at issue between the parties in a pending action. The court further said that declaratory judgment procedure is not proper as a means of trying a case, or various issues involved in it, by piecemeal. In Consumers Co-op Assn. v. Hill, 233 Ark. 59, 342 S.W.2d 657 (1961), this court held that failure to seek a rehearing before an administrative agency was failure to exhaust administrative remedies where rehearing could have cleared up a confusing ruling. See also Arkansas Motor Vehicle Comm’n v. Cantrell Marine, Inc., 305 Ark. 449, 808 S.W.2d 765 (1991).
This court in Barr v. Arkansas Blue Cross & Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988), recognized that the exhaustion of administrative remedies is not required where no genuine opportunity for adequate relief exists or where irreparable injury will result if the complaining party is compelled to pursue administrative remedies. That is not the situation here. Although Rose Care argues the Arkansas Health Planning statutes do not provide administrative procedural redress for review of the Commission’s approval of a permit to construct a nursing home facility, we must disagree.
To support its argument, Rose Care cites Ark. Code Ann. § 20-8-106(d) (Repl. 1990) and contends the statutes only contemplate review of the Commission’s denial, not approval, of a POA. Rose Care’s argument totally ignores Ark. Code Ann. § 20-8-103(f) and (h) which provide as follows:
(f) The commission shall review the recommendations of the agency concerning action on applications by long-term care facilities or home health care service agencies for permits of approval and endorse or reject the same.
* * *
(h) The commission, upon appeal by the applicant, shall conduct hearings on permits of approval by the agency within thirty (30) days of receipt of the notice of appeal. The commission shall render its final decision within forty-five (45) days of the close of the hearing. Failure of the commission to take final action within these time periods shall be considered a ratification of the agency decision on the permit of approval and shall constitute the final decision of the commission from which an appeal to circuit court may be filed.
As is evident by reading the foregoing provisions, the General Assembly has provided for the review of agency recommendations and the Commission may endorse or reject them. And while provision (h) provides that the Commission, upon appeal by the applicant, must conduct hearings on permits of approval by the Agency, we find nothing in this language, or that in provision (f), that would prevent Rose Care from requesting the review of the Agency’s recommendations or the approval of a permit. Moreover, as is specifically provided in provision (h), the Commission’s decision is then appealable to circuit court.
Here, Rose Care was an applicant and had every right to pursue the statutory procedures discussed above. In fact, Rose Care requested a review of the Agency’s recommendation that a second POA should be issued to Regional and was granted a review.
In conclusion, we mention Rose Care’s argument in this case that the Agency and Commission failed to give proper notice that a second POA would be considered prior to making its recommendations to the Commission. This notice issue is addressed and decided in Rose Care’s favor in companion case no. 95-458 where we point out that the Commission’s regulations require that the notice of a proposed review of applications for a POA be given, but the Agency failed to comply. As we state in case no. 95-458, we hold the trial court was correct in reversing and remanding this matter directing the Commission to take further steps in connection with the approval of the second POA. In the event of an adverse ruling, an appeal would be to circuit court.
For the reasons stated hereinabove, we reverse and dismiss the trial court’s order.
Corbin, J., not participating.
1989 Act 422 § 6 specifies June 1, 1988, as the date after which the commission may lift the moratoria, but that is a mistake and should read “June 1, 1989.” The trial court correctly read the Act as specifying June 1, 1989, and not 1988.
Although the order was entered, the Commission subsequently approved and issued Regional the second POA. Regional raises this point on appeal, but it is unnecessary to discuss and decide it.
Section 20-8-106(d) provides any applicant seeking review of the agency denial of a permit of approval shall file a written appeal. | [
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Andree Layton Roaf, Justice.
Appellant Ricky Louis Harris was convicted and sentenced to sixty years imprisonment for attempted rape. He asserts the trial court erred by: 1) allowing his prior conviction for sexual assault to be used for impeachment, 2) excluding relevant exculpatory evidence of the victim’s prior sexual conduct, 3) not allowing him to waive the habitual offender bifurcated trial procedure, 4) limiting his closing argument, and 5) admitting evidence without proper chain of custody. We find all five points to be without merit, and affirm.
On the night of February 25, 1994, appellant met the victim, who had just arrived from Texas, at a Fort Smith bar. The bartender was to be her host on the visit, and she remained at the bar, drinking and playing pool with appellant and others, until closing time. The victim and appellant both had a substantial amount to drink during the evening; the victim felt she was unable to drive, gave her keys to her bartender friend, and accepted appellant’s offer of a ride to the home of her host. Instead of following the victim’s friend to his home, appellant drove to his parent’s home, where he lived, and parked his jeep in their driveway. The victim testified that she repeatedly asked appellant to take her to her friend’s home but he refused. She stated that while they were parked in the driveway, appellant began to attack her, forced her down on the car seat, ripped her shirt, pulled her brassiere up around her neck, ripped her pants, put his hand down her throat, threatened to get out a knife if she continued to resist, bit her breast and penetrated her vagina with his hand. During the struggle, which continued “for the longest time” according to the victim, she screamed for help and was able to repeatedly sound the horn of the jeep.
At trial, four witnesses testified to hearing a young woman scream for help and the sound of a car horn. Two young men went to investigate the disturbance, saw that the screams were coming from appellant’s jeep, and witnessed the jeep moving back and forth as if “somebody was being raped or being beat up in the car.” They and another neighborhood resident summoned the police by calling 911. The first officer to arrive on the scene saw appellant leave the jeep and walk toward his house; the officer also saw the victim tumble out of the passenger side with her clothes tom and in disarray and her jeans and underpants down around her thighs. He testified that she was hysterical and screaming “help me.” Appellant was arrested at the scene, and the victim was taken to the hospital. Appellant testified at a pretrial hearing that he and the victim engaged in consensual “making out and petting” earlier that evening and while they were parked in his parent’s driveway but he denied all allegations of the victim. He did not testify or put on any evidence at trial.
1. Prior conviction.
Appellant argues the trial court erred in denying his motion in limine to prohibit a 1985 sexual assault conviction from being used for impeachment. His motion was overruled and the defendant elected not to testify at trial.
In Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989), we reiterated the rule that:
In future cases, to preserve this issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.
We further in Smith chose to adopt the doctrine promulgated in Luce v. United States, 469 U.S. 38 (1984), which states that in order to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.
The Arkansas Rules of Evidence Rule 609 states in pertinent part:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
A.R.E. Rule 609(a).
To accomplish the weighing of the prior conviction’s probative value against its prejudicial effect, the reviewing court must know the precise nature of the defendant’s testimony, which is unknowable when the defendant does not testify. Smith at 336. Smith goes further to state:
Any possible harm flowing from a trial court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. Moreover, when the defendant does not testify, the reviewing court has no way of knowing whether the State would have sought so to impeach, and cannot assume that the trial court’s adverse ruling motivated the defendant’s decision not to testify. Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. If in limine rulings under Rule 609(a) were reviewable, almost any error would result in an automatic reversal, since the reviewing court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring a defendant to testify in order to preserve Rule 609(a) claims enables the reviewing court to determine the impact any erroneous impeachment may have in light of the record as a whole, and tends to discourage making motions to exclude impeachment evidence solely to ‘plant’ reversible error in the event of conviction. (Citation omitted).
Appellant argues that his proffered testimony at the pretrial hearing sufficed to let the trial court know the precise nature of his testimony. Although the proffered testimony may be sufficient to allow for the necessary balancing contemplated in Rule 609, the defendant did not testify, and we have no way of knowing whether the State would have sought so to impeach, and cannot assume that the trial court’s adverse ruling motivated the appellant’s decision not to testify. Consequently, appellant has not preserved this issue for review because of his failure to testify at trial.
2. Victim’s prior sexual conduct.
During an in-camera hearing prior to trial, appellant’s counsel sought to “proffer” that the physician who examined the victim would testify that the victim reported she had sex within a week prior to the incident, and the prior sexual encounter could have caused the bruising and abrasion noted by the doctor during his exam. Appellant’s counsel admitted he had not talked to the doctor and did not actually know what his testimony would be. The trial court ruled that appellant could ask the doctor if the bruises on the victim’s legs were old, but could not mention the prior sexual conduct.
At trial, appellant’s cross-examination concerning the bruises was as follows:
Q: Now, the history as you mentioned, the history that she gave you with these various bruises, that could be consistent with a lot of things, could it not?
A: The bruising and such?
Q: Yes.
A: Yes, sir.
Q: It could be consistent with a fall or it could be consistent with just a number of other things, couldn’t it?
A: Some of them could.
Appellant did not ask the physician if the bruises were old or if they could have been produced prior to the rape. In fact, the doctor testified during direct examination that all the bruising he noted was fresh, or within twenty-four to forty-eight hours old.
The Rape Shield Statute, Ark. Code Ann. § 16-42-101 (Repl. 1993), states in pertinent part:
(b) In any criminal prosecution under § 5-14-103 through § 5-14-110, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
(c) Notwithstanding the prohibition contained in subsection (b) of this section, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:
(Emphasis added)
Ark. Code Ann. § 16-42-101(b) & (c).
The statute does not totally bar evidence of a victim’s sexual conduct but instead makes its admissibility discretionary with the trial judge. The trial court is vested with a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and we do not overturn the trial court’s decision unless it constituted clear error or a manifest abuse of discretion. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).
In evaluating the admissibility of such evidence under the statute, the trial court determines whether the probative value of the evidence outweighs its inflammatory or prejudicial nature. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). We have held that our Rape Shield Statute is intended to protect victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Gaines at 567.
In Lackey v. State, 288 Ark. 225, 703 S.W.2d 858 (1986), the trial court denied appellant’s motion to question the victim about her prior sexual conduct. Appellant argued it was relevant because of the doctor’s statement that the sperm he found was non-motile and that sperm could remain motile up to five days in the vagina. We determined it was within the discretion of the trial court to determine the relevancy of the question and balance it against the possibly prejudicial effect.
In Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995), the appellant was allowed to bolster his claim of consent by showing that the victim had a black eye before the rape occurred. However, we upheld the trial court’s exclusion of testimony that the victim’s husband had struck her because she was having an affair with someone else; the trial court found this testimony was only minimally relevant, and its prejudicial effect substantially outweighed its probative value.
In the instant case, we cannot say the trial court abused its discretion in allowing the appellant to ask how old the bruises were without reference to the victim’s prior sexual conduct.
3. Waiver of bifurcated trial.
Harris argues that the bifurcated procedure deprived him of a fair trial in violation of the Fourteenth Amendment, because the jury was required to decide his guilt without knowledge of the consequences to him of a conviction and without regard to the punishment which would result.
Appellant presents no authority for his due process argument, and our bifurcated sentencing procedure has been upheld for habitual criminals. Griffin v. State, 307 Ark. 537, 823 S.W.2d 446 (1992); Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984).
4. Limitation of closing argument.
The trial court granted the State’s motion to prevent appellant from bringing up certain matters in closing arguments, including reference to a chain of custody issue and the victim’s character. Appellant objected to this limitation. However, as appellant has failed to abstract any of his closing argument, we cannot determine whether or how he was prejudiced; this failure precludes us from considering this issue. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994).
5. Chain of custody.
Appellant asserts that items of the clothing worn by the victim during the attempted rape were introduced without a proper chain of custody. He primarily argues that a pair of jeans could have been torn by doctors or nurses who examined the victim after the incident or could have been tampered with, and alleges the jeans did not appear to be the same pair he witnessed at a preliminary hearing. However, the victim testified that appellant tore her jeans during the attack, identified the clothing as hers and testified the items were in the same condition as when they were removed from her at the hospital immediately after the incident. A police officer also testified that he took the clothing from the victim at the hospital and that the condition of the clothes admitted into evidence was the same as the night that he received them. Although there was conflicting testimony from officers concerning whether the clothing had been sent to the state crime lab for testing, minor uncertainties in the proof of chain of custody are matters to be weighed by the jury and do not render evidence inadmissible as a matter of law. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).
Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). We have consistently agreed that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993). However, the trial court must be satisfied that, in reasonable probability the evidence has not been tampered with; it is not necessary that the State eliminate every possibility of tampering. Gardner v. State, supra; White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).
The trial court found the items of clothing to be admissible; we cannot say there was abuse of discretion in this instance.
The conviction is affirmed. | [
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Per Curiam.
Because appellant Pamela F. Skokos was unable to obtain a hearing and ruling below in her ARCP Rule 60 motion, she filed her notice of appeal and lodged a partial record with this court with the intent to request us later to remand the cause so her motion could be adjudicated below. Her action was taken in these special circumstances to insure she did not waive her right to an appeal. She now requests that remand, but also asks this court to disqualify the trial judge pursuant to Ark. Const, art. 7, § 20.
Both appellees Theodore C. Skokos and Chancery Judge Alice S. Gray deny that any reasons exist to require the chancellor’s recusal and further argue the appellant should not be permitted a remand for Rule 60 purposes, since the matter has been appealed. Nonetheless, in this appeal, Judge Gray responds to appellant’s motions, and in doing so, announces her decision to recuse.
Because of Judge Gray’s decision to recuse, we acknowledge her recusal by this per curiam, and pursuant to Ark. Code Ann. § 16-10-101 (Repl. 1994), assign Chancery Judge Jim R. Hannah to hear or rule on any matters required to be settled upon the remand of this cause. Rule 6(e) of the Rules of Appellate Procedure. In addition, appellant and appellee Theodore C. Skokos ask that the records previously filed in two prior cases considered by us, Skokos v. Gray, case no. 94-952, and Hodges v. Gray, case no. 94-1191, be consolidated and chronologized in the present cause. We grant that request. Accordingly, we remand this case with directions to Chancery Judge Jim R. Hannah to proceed consistent with the court’s opinion.
Brown and Roaf, JJ., not participating. | [
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Per Curiam.
Petitioner Pamela Danice Baxter moves the Arkansas Supreme Court to affirm or adopt the authorization for recertification of her license to practice law made by the Chairman of the State Board of Law Examiners. Baxter surrendered her law license on March 3, 1986, but now has submitted an application for reinstatement of her law license. The Chairman of the State Board of Law Examiners has apparently concluded that she is eligible for readmission under Rule XIII of the Rules Governing Admission to the Bar but that reinstatement is contingent on her taking and passing the required bar examinations.
It is premature for this court to take any action concerning Baxter’s application for reinstatement of her law license until all of the conditions for reinstatement have been satisfied. That is not yet the case, as is evidenced by the fact that the bar examinations remain to be taken. The motion is denied. When the application for reinstatement is complete, a motion to the court will be appropriate. | [
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Per Curiam.
The state moves to complete the record on appeal, requesting the opening statement and closing argument be included. The state has had numerous extensions to file its brief — one on December 4, 1995, one on December 11, 1995, and another on January 10, 1996. To grant the state’s present motion will require another extension.
The state offers no explanation for its delay in requesting the record be made complete, and we discern none, since appellant’s notice of appeal filed on March 20, 1995 clearly excluded opening statements and closing arguments. The necessity for additional record should have been evident either before or at the time appellant filed his brief on October 30, 1995.
Because appellant is said to voice no objection to the state’s motion, we grant it. We also stay brief time until thirty days after the record is completed, but we admonish the state that no further extensions will be approved. | [
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David Newbern, Justice.
Judy Briscoe is the mother of John W. Briscoe who was born in 1986. Ms. Briscoe appeals from a decision terminating her parental rights with respect to her son. She argues the Trial Court erred by failing to notify her of her right to representation by an attorney and by failing to provide an attorney upon her request to be represented. We agree it was error for the Trial Court to have failed to honor Ms. Briscoe’s request for an attorney at one of the several review hearings, but we affirm the decision because she was represented by counsel in the hearing which resulted in the decision now on appeal.
The case originated in June 1991 when John Briscoe was taken to a hospital with a laceration and puncture wounds. He reported that his mother had pushed him, causing him to fall and sustain the injuries. The Department of Human Services (DHS) obtained an order for emergency custody based on its allegation that John was a dependent-neglected child. See Ark. Code Ann. § 9-27-303(12) (Supp. 1995). Thus began a long series of hearings, and reviews with the development by DHS of a case plan, the object of which was to reunify John and his mother while custody remained with DHS and John was placed in foster care.
John’s father, Tyrone Briscoe, lived apart from the family and played a part in the proceedings but ultimately conceded that he was not capable of caring for his son and consented to the termination of his parental rights. The Briscoes were divorced prior to the termination hearing, and Tyrone Briscoe is not a party to this appeal.
The original emergency custody order which named Judy and Tyrone Briscoe as defendants specified that they had the “right and opportunity to obtain legal counsel” and that a request could be made to the Court to appoint legal counsel “if indigent.” The Briscoes were represented at the outset by an attorney who appeared on their behalf through the issuance of a review hearing order dated October 14, 1991. The attorney thereafter asked to be relieved of representation because of a conflict which had arisen between the Briscoes. He was relieved by the Court in December 1991.
The case proceeded as a dependency-neglect matter. The Briscoes were allowed supervised visitation. At a hearing held in September, 1992, there was testimony from the DHS family services worker assigned to the case that in his opinion Ms. Briscoe would not be able to care for John despite the efforts being made through counseling and parenting skills education. Ms. Briscoe was asked if she wished to testify, and she replied, “I’d like to have an attorney.” She confirmed that she did not want to testify, but she was put on the witness stand and questioned by counsel for DHS. The social services worker, through testimony, asked the Court to be allowed to change the case plan to one seeking guardianship of John with a termination-of-parental-rights hearing as the final object. The Court agreed.
Review hearings continued through 1993 and 1994, and Ms. Briscoe appeared at them without an attorney. There was testimony about attempts by DHS to counsel both Mr. and Ms. Briscoe as well as reports on John who was making slow progress, through medication and counseling, toward overcoming serious behavior problems resulting from his hyperactivity and attention deficit symptoms. Evidence developed that, despite her refusal to acknowledge it, Ms. Briscoe had at least five other children who were in the custody of the Texas counterpart of DHS.
A termination hearing began in December 1994 but was stopped when the Court realized that Ms. Briscoe was with out counsel. The hearing was rescheduled for January 1995 with counsel appointed for Ms. Briscoe. At this final hearing, all the evidence, beginning with the 1991 incident, was presented. Arkansas Code Ann. § 9-27-316 (Repl. 1993) provides in part:
(f)(1) In all proceedings to terminate parental rights or remove custody of a juvenile from a parent or guardian, the parent or guardian shall be advised at his first appearance before the court of the right to be represented by counsel at all stages of the proceedings and the right to appointed counsel if indigent.
(2) Upon request by a parent or guardian and a determination by the court of indigency, the court shall appoint counsel, and if an attorney other than the public defender is appointed, the court shall award a fee and costs from the Juvenile Court Representation Fund in an amount not to exceed the amounts provided by law for appointment of counsel for indigent defendants in criminal cases.
* * *
(h) Appointment of counsel shall be made at a time sufficiently in advance of the court appearance to allow adequate preparation by appointed counsel and adequate consultation between the appointed counsel and the client.
The proceedings began as proceedings to “remove custody,” and the hearings had to do with whether Ms. Briscoe should remain without custody of her son. We have no doubt the statute applied, and Ms. Briscoe was entitled to notice of her right to counsel. The record does not show that Ms. Briscoe was advised at the “first appearance” of her right to counsel other than through the emergency order of which she may or may not have been aware, but the notice point is moot due to the fact that she appeared with counsel at the first two hearings.
Of far greater concern is the Trial Court’s allowing a hearing to proceed and holding later ones after Ms. Briscoe had asked to have an attorney represent her. The statutory provision of the right to an attorney, and to the appointment of one for an indigent person, is obviously mandatory. It was error to allow the hearing at which she asked for an attorney to proceed and to require Ms. Briscoe to testify absent representation. We con- elude, however, that the error was harmless.
The final termination hearing aired all the evidence which had been presented in the earlier dependency-neglect hearings and the hearings leading up to the termination. Ms. Briscoe was represented in the termination hearing and given an opportunity to challenge the evidence against her and to present evidence on her own behalf with the full assistance of counsel. Her counsel had an opportunity at the final hearing to challenge any of the evidence against Ms. Briscoe and to present any evidence she might not have thought to present in previous hearings when she was not represented.
We emphasize that the statutory requirement that counsel be provided when the issue is termination of parental rights is mandatory. We decline to reverse only because we conclude that, in the limited circumstances of this case, the error of failing to provide counsel in earlier hearings was cured by the provision of counsel in the final hearing in which the entire case against Ms. Briscoe was presented.
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Donald L. Corbin, Justice.
Appellant, Alan Willett, appeals the judgment of the Johnson County Circuit Court convicting him of two counts of capital murder and two counts of attempted capital murder. Appellant was tried by a jury and received two sentences of death by lethal injection and two sentences of thirty years in prison, all of which were to run consecutively. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant asserts nine points for reversal. We affirm the judgments of conviction for capital murder, but hold there was reversible error in the penalty phase of the bifurcated trial and remand to the trial court for resentencing pursuant to Ark. Code Ann. § 5-4-616 (Repl. 1993).
Appellant does not challenge the sufficiency of the evidence, so there is no need to recite the evidence in detail. All charges against appellant were the result of a single incident occurring at approximately 5:00 a.m. on September 14, 1993, when, apparently in anticipation of the possibility that his three minor children and mentally handicapped adult brother would be removed from his custody by the Department of Human Services, appellant attempted to kill them and himself in their home. Appellant beat the heads of his children and brother with an eight-pound iron window weight, and cut his own wrists and neck with a sharp object. Appellant succeeded in killing his thirteen-year-old son, Eric, and his brother, Roger Willett. Appellant’s then seventeen-year-old daughter, Ruby, and then six-year-old son, Johnny, survived their injuries when Ruby escaped appellant’s attention, grabbed Johnny, and went to a neighbor, who was an auxiliary deputy, for help. The neighbor, Donald Bradley, and a Johnson County Sheriff’s Deputy, Robert Thompson, found appellant at the crime scene. Appellant was hospitalized thereafter, where he confessed to the murders and attempted murders.
Of his nine points for reversal, four are based on alleged errors that occurred during the guilt phase of the trial, two are based on alleged errors in the penalty phase, and three are constitutional challenges to our death penalty statutes. We address the four points pertaining to the guilt phase first.
Appellant’s first assignment of error in the guilt phase is the admission of his confession. Appellant contends his uncounseled video-taped confession should not have been admitted into evidence because he gave it after he had invoked his right to counsel. The trial court held a hearing on appellant’s motion to suppress the confession and later denied the motion, ruling that appellant had been advised of his rights and the confession was voluntary. At trial, the state introduced appellant’s confession into evidence during the testimony of Dan Short of the Arkansas State Police Criminal Investigation Division.
This court has previously stated that, after invoking the right to remain silent or the right to counsel, an accused in custody may change his mind, initiate further communication with law enforcement officials and waive those rights. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988) (citing Edwards v. Arizona, 451 U.S. 477 (1981) and Michigan v. Jackson, 475 U.S. 625 (1986)); Coble v. State, 274 Ark. 134, 624 S.W.2d 421, cert. denied, 456 U.S. 1008 (1981). The admissibility of statements obtained after a person in custody has requested an attorney or decided to remain silent depends upon whether the accused knowingly and intelligently waived the right or rights he had invoked, whether his right to cut off questioning was scrupulously honored, and whether it is the accused who initiates the further communications with law enforcement officials. Id. On appeal, we determine whether such initiation and waiver has occurred from the totality of the circumstances, viewing the evidence in the light most favorable to the state. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994). We will not reverse the trial court’s determination unless it is clearly erroneous. Id.
There is no doubt appellant invoked his right to counsel while in police custody at approximately 10:00 a.m. on September 15, 1993 when Johnson County Sheriff Charles Nicklas and Investigator Short visited appellant in the hospital. Both law enforcement officials testified at the suppression hearing that they advised appellant of his Miranda rights, and that when they presented appellant with a waiver of rights form for his signature, appellant wrote on the signature line, “I want a lawer [sic] first.” Both officials testified they did not ask any further questions of appellant.
Appellant does not dispute that, on the following day, September 16, he gave the prosecuting attorney’s business card to a nurse and asked her to call the prosecuting attorney. The nurse, Sue McCarley, testified at the hearing that she could not reach the prosecutor and upon informing appellant of such, he asked to speak with a deputy. Nurse McCarley stated appellant knew what he was doing when he asked her to contact the authorities.
Sheriff Nicklas and Investigator Short both testified that they, together with the prosecutor, returned to appellant’s hospital room on September 16. At that time, appellant signed a written waiver of his rights to remain silent and to counsel. He also signed a written statement acknowledging that he asked the hospital to contact the law enforcement officials, that he initiated the contact with the officials, that he desired to give a statement to them, and that his decision to do so was voluntary. Investigator Short then video-taped appellant’s confession, wherein appellant admitted striking all four victims in their heads with the window weight and intended to kill them and himself.
John Anderson, a licensed psychologist from the Division of Mental Health Services, testified at the suppression hearing that he had examined appellant and watched the video-taped confession. He opined that appellant was of average intelligence and that he saw nothing to indicate appellant acted in any way other than voluntarily when he confessed.
Viewing the foregoing evidence in the light most favorable to the state, it is clear that appellant initiated the contact with law enforcement officials by asking the nurse to call them. It is equally clear that he subsequently and voluntarily waived his rights and gave a confession. He signed the waiver form and, as the trial court observed, his actions and answers to questions indicated that he was acting voluntarily. Considering the totality of the circumstances, we cannot say the trial court’s ruling admitting the confession into evidence is clearly erroneous.
On appeal, appellant also cites Metcalf v. State, 284 Ark. 223, 681 S.W.2d 344 (1984), and contends the impetus of his contact with police on September 16 was the prosecutor’s action in leaving his business card with appellant. This argument, together with the argument that appellant was denied his right to counsel during an appearance that was conducted by the municipal judge in appellant’s hospital room on the evening of September 15, were not raised below. We do not address arguments raised for the first time on appeal. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Even constitutional arguments are waived on appeal when not raised below. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).
Appellant’s second and third assignments of error in the guilt phase are the admission into evidence of four photographs taken at the crime scene and during the two autopsies. He argues the photographs were cumulative of other photographs and highly prejudicial.
Even if photographs are inflammatory or prejudicial in the sense that they show human gore repulsive to the jurors, they are nevertheless admissible within the trial court’s discretion if they help the jury understand the accompanying testimony. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). If a photograph serves no valid purpose and only inflames the jury, it is inadmissible. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980). However, the mere fact that a photograph is inflammatory or cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994).
Specifically, appellant challenges the admission of State’s Exhibits 4, 57, 60 and 63. State’s Exhibit 4 is taken from the rear view and shows the body of Eric Willett lying in a large pool of blood on the floor of the Willett residence. Appellant objected on the basis that the photograph was cumulative of State’s Exhibits 1 and 2. State’s Exhibit 1 is a close-up photograph of Eric’s body taken from the front view. State’s Exhibit 2 is a photograph of the window weight lying on the floor in close proximity to Eric’s head. State’s Exhibit 4 was admitted as Deputy Thompson testified to what he saw as he entered the Willett residence and proceeded down the hall. Deputy Thompson stated he stepped over Eric’s body, proceeded down the hallway, and found Roger lying in the hallway moaning and kicking. Later, according to Deputy Thompson, he went down the hallway again to bring appellant out of the bathroom where he remained behind a closed door. The trial court ruled State’s Exhibit 4 would be admitted because, unlike State’s Exhibits 1 and 2, it showed the hallway of the residence. We conclude that State’s Exhibit 4 helped the jury understand Deputy Thompson’s testimony of the crime scene and that it had probative value that was not cumulative of other pho tographs. Thus, although the photograph was gruesome, we find no abuse of discretion in admitting it.
State’s Exhibits 57 and 60 are autopsy photographs of Roger’s head showing the top and rear views, respectively. The two challenged photographs showed that Roger was struck on the back and side of the head numerous times. Other autopsy photographs of Roger’s head injuries were also admitted. However, there is no duplication. State’s Exhibits 57 and 60 served to help the jury understand the nature and extent of the fatal wounds and the medical examiner’s testimony that Roger suffered five blows to the head. Exhibit 60 also showed the secondary injuries, bruises on the back of the head, caused from the primary blows to the head. We cannot say the trial court abused its discretion in this regard.
State’s Exhibit 63, an autopsy photograph of Eric taken from the front view after the body was cleaned of dried blood, clearly shows injuries to Eric’s eye and shoulder. Other autopsy photographs of Eric that were admitted show the fatal blows to the back of the head, but they did not show clearly the injuries to the eye and shoulder because the body had not yet been cleaned of blood. Thus, Exhibit 63 was helpful to understand the testimony that Eric suffered blunt-force injuries to the front of his head and elsewhere on his body in addition to the two fatal blows to the back of his head. Therefore, we find no abuse of discretion in admitting State’s Exhibit 63.
This court stated in Weger that a gruesome photograph is admissible if, among other possibilities, it helps prove a necessary element of the case. To obtain the two convictions for capital murder, the state bore the burden of proving that appellant murdered Eric “[u]nder circumstances manifesting extreme indifference to the value of human life” and that he murdered Roger “[w]ith the premeditated and deliberated purpose” of causing his death. Ark. Code Ann. § 5-10-101(a)(4), (a)(9) (Repl. 1993). All four of the challenged photographs were probative of the foregoing elements. In addition, they specifically refuted that part of appellant’s confession that he did not want his victims to suffer.
Appellant’s fourth assignment of error in the guilt phase is the trial court’s ruling that certain portions of appellant’s con fession be excised before admission into evidence. The trial court granted the state’s motion in limine and, because appellant was not claiming the defense of mental disease or defect, excluded the following statements from appellant’s confession:
[I] feel like I wasn’t sane at the time. . . .
[B]eing sane or insane
[I] was so insane
[I] do believe I wasn’t sane that night, and I believe I wasn’t sane ....
The trial court reasoned that because appellant was not asserting the defense of mental disease or defect, any references to appellant’s sanity or insanity would only serve to confuse the jury. Appellant argues that the exclusion of these phrases denied the jury the full import and meaning of his own words, that is, a possible indication that he had remorse for his actions or corroboration of other testimony that he suffered from extreme emotional disturbance.
The decision to delete the portions of appellant’s confession was an evidentiary ruling within the trial court’s broad discretion, which we will not reverse unless the trial court manifestly abused its discretion. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994). Here, the trial court specifically stated that appellant would be allowed to present those portions of his confession relevant to his claim of extreme emotional disturbance. Thus, the trial court carefully concluded that only the references to “sanity” or “insanity” be deleted since appellant was not claiming mental disease or defect. We agree that those references would have been confusing to the jury and cannot say the trial court manifestly abused its discretion in this regard.
Two points are important to our conclusion that the trial court did not abuse its discretion in omitting the above-quoted phrases from appellant’s confession. First, appellant does not argue that his confession should have been admitted intact. Second, in addition to the challenged excisions, upon request by appellant and agreement with the state, the trial court excised certain other phrases from the confession, including language that appellant intended to plead guilty by reason of insanity. The trial court’s careful consideration of all the requested omissions and its consistent exclusion of all references to the words “sane” or “insane,” including appellant’s request to omit the reference to appellant’s intention to plead guilty by reason of insanity, prevent us from finding a manifest abuse of discretion.
Accordingly, we affirm the judgments of conviction for capital murder and attempted capital murder reached in the guilt phase of the trial.
We now consider the two assignments of error involving the penalty phase. Appellant asserts two points of error involving aggravating and mitigating circumstances. First, he challenges the sufficiency of the evidence to support the finding of the aggravating circumstance. Second, he challenges the sufficiency of the evidence to support the finding that the aggravating circumstance substantially outweighed the mitigating circumstances. These two arguments and our resolution of them apply to both death sentence verdicts because the verdict forms and the jury’s actions with respect to those forms were identical for both counts of capital murder.
Appellant argues the trial court erred in failing to set aside the death sentence verdicts due to insufficient evidence of the sole aggravating circumstance found by the jury — that the murders were committed in an “especially cruel” or “especially depraved” manner as those terms are defined in Ark. Code Ann. § 5-4-604(8) (Repl. 1993).
The state contends this argument is procedurally barred from appellate review because it was not argued to the trial court in a timely manner or in a sufficiently specific manner. The state relies on former A.R.Cr.R Rule 36.21(b) and A.R.Cr.P. Rule 33.1 (per curiam July 10, 1995) concerning motions for directed verdict and challenges to the sufficiency of the evidence. Specifically, the state contends appellant should have objected to the submission of the aggravating circumstance to the jury at the close of the state’s case during the penalty phase, and again at the close of all the evidence during the penalty phase. In the spirit of Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), the state further contends appellant was required to apprise the trial court of the specific element of the aggravating circumstance that was allegedly missing so that the state could be allowed an opportunity to supply the missing evidence.
The state’s only authority for this argument is a capital murder case in which this court applied the contemporaneous objection rule during the guilt phase of the trial. Johnson v. State, 308 Ark. 7, 22, 823 S.W.2d 800, 808, cert. denied, 112 S. Ct. 3043 (1992). The state does not cite us to any authority, nor are we independently aware of any, in which this court has applied our rules on motions for directed verdict made in the guilt phase of a criminal case to the penalty phase of a capital case. Therefore, this issue is one of first impression for this court.
Regarding the sufficiency of the evidence of aggravating or mitigating circumstances, this court has stated:
We think it a better practice, and less confusing to the jury, for the circuit judge to omit from submission any aggravating or mitigating circumstances that are completely unsupported by any evidence, and we take this opportunity to direct the circuit judges of Arkansas to hereafter allow this alternate procedure. If there is any evidence of the aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury. Of course, counsel may object to the determination of the trial court the same as they may object to any other form of verdict.
[Wje do not require the same degree of proof to sustain a jury finding that an aggravating or mitigating circumstance exists as we would require to sustain a conviction if that circumstance was a separate crime.
It is a matter of judgment whether the facts support the findings of the jury of aggravating and mitigating circumstances, but we will not substitute our judgment for the judgment of the jury that heard the evidence if there is a reasonable and understandable application of the facts to the statutory circumstances.
Miller v. State, 269 Ark. 341, 354-55, 605 S.W.2d 430, 438-39 (1980). In applying the foregoing rule several times, this court has clearly indicated that the defendant objected below. See, e.g., Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, 499 U.S. 913 (1991) (indicating the appellant moved to strike one of the aggravating circumstances), and Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981), cert. denied, 459 U.S. 1042 (1982) (stating the trial court allowed the jury to consider aggravating circumstance over the appellant’s objection).
Although we have never expressly applied our rules on motions for directed verdict made in the guilt phase to the penalty phase of a bifurcated trial of capital murder, we have consistently required a defendant to object to the death sentence verdict in the same manner as any other verdict. Miller, 269 Ark. 341, 605 S.W.2d 430. Therefore, because appellant did not move for a directed verdict or object to the submission of the aggravating circumstance to the jury until after the jury returned the verdict, we are persuaded by the state’s argument that this point is procedurally barred and do not consider the merits of appellant’s argument.
For his second assignment of error in the penalty phase, appellant contends the trial court erred in refusing to set aside the death sentence verdicts based upon insufficient evidence that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt. Appellant’s support of this argument is three-fold. First, he points to his medical history. Second, he claims the jury was confused during deliberation of the penalty phase. Third, he claims the jury incorrectly completed the verdict form pertaining to mitigating circumstances entitled “AMCI Form 2 — Mitigating Circumstances.”
As for appellant’s medical history, he produced evidence that, after using the drug Valium for the previous ten years, he received his last dosage approximately one month before the murders. Appellant also produced evidence that he suffered from several psychiatric disorders, that his Valium therapy had been mismanaged, and that a combination of these factors played a role in his conduct on the night of the crimes. Appellant also introduced an expert opinion that he suffered from a mental disease or defect that impaired his ability to appreciate the crimi nality of his conduct. Appellant argues this evidence was unrebutted by the state.
The state correctly contends this was a credibility issue for the jury to resolve. The jury could have discounted the medical history evidence, or while accepting its accuracy, found it immaterial. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). Moreover, appellant’s argument that the jurors completely ignored proof of the mitigating circumstances is disproved by the fact that, with respect to Form 2, at least one of the jurors concluded the medical history was indeed a mitigating circumstance, though not all of the jurors agreed.
As for the jury’s confusion, appellant relies heavily on the fact that, during deliberation in the sentencing phase, the jury asked questions concerning the procedure they were to follow in completing the death sentence verdict forms. The jurors were properly called into open court for the trial court to address their questions. The following occurred:
BY THE COURT: Ladies and Gentlemen, the Bailiff has given me a note containing a couple of questions that you have. Let me go over it with you. The first part, if you check one aggravating circumstance, do you have the privilege to check mitigating circumstances; and that’s yes.
Then you have, or, is Mr. Willett given the death sentence. That’s no.
Then the next sentence can we say there are aggravating and mitigating circumstances; and that’s yes.
If you look at that Form one, that’s your aggravating circumstance and Form two are mitigating and you go through those and if they exist, then you check it. Form three is kind of your conclusions; and I think you have to make three specific findings or more on there. It’s just like the way that says and then the fourth is your verdict. I think if you get those forms and read this, it pretty well — I notice down here you say, don’t fully understand and would like to hear the instructions one more time. Do you want me to read this or is there something — I want to try to help you understand this, if I can.
BY A JUROR: Can I ask you a question?
BY THE COURT: Let me hear it.
BY THE JUROR: Well, like on the last page do we all have to unanimously agree?
BY THE COURT: The fourth one is the verdict, which is the two choices that you have. Whichever choice that you make, all twelve of you sign it.
BY A JUROR: But, like on all the questions concerning —
BY THE COURT: Just the Foreman. If you notice on Form one and maybe Form two and three, it just has “Foreman.” That’s your Foreman. The verdict form, that’s Form four, the final decision of what you do, all twelve of you sign that.
BY A JUROR: Does it have to be unanimous? Does all twelve have to agree on the same thing?
BY THE COURT: Right. The first three forms — all four forms are unanimous. The first three forms just require your Foreman’s signature; but the verdict form, when you select your punishment, that’s unanimous. It’s unanimous and all twelve of you have to sign your name. Have you got it? All right. You can return with the Bailiff.
Appellant contends that the jury’s confusion was not resolved by the trial court’s answers to their questions and that their confusion is manifested in the conflicting manner in which they completed Form 2. In Subsection A of Form 2, the jurors unanimously found the following mitigating circumstances probably existed at the time of the murder: that appellant had no prior history of criminal conduct, that appellant had been a model prisoner, and that appellant had cooperated with police by voluntarily giving a statement about the crimes at issue. However, in subsection C of Form 2, the jurors found there was evidence of the same three circumstances, but unanimously agreed that they were not mitigating circumstances. Essentially, appellant contends that subsections A and C are mutually exclusive.
The state agrees that Form 2 seems to have been filled out incorrectly. However, the state contends appellant suffered no prejudice because the jurors appeared in open court and orally confirmed their death-sentence verdicts.
The model instruction that accompanies the capital murder Forms, AMCI 2d 1008, states that unlike an aggravating circumstance, the jury is not required to be convinced of a mitigating circumstance beyond a reasonable doubt; rather, a mitigating circumstance is shown if the jury believes from the evidence that it probably existed. We therefore agree that subsections A and C of Form 2 are mutually exclusive. Because the jury was instructed in accordance with AMCI 2d 1008 in this case, there can be no doubt that they completed Form 2 incorrectly when they checked the same three circumstances in subsections A and C.
We are somewhat inclined to conclude that the jury’s error in completing Form 2 was harmless for three reasons. First, in “Form 3 — Conclusions,” the verdict form pertaining to the weighing of aggravating and mitigating circumstances, the jurors concluded that the aggravating circumstance outweighed beyond a reasonable doubt any mitigating circumstance found by any juror to exist. Second, also in Form 3, the jury concluded the aggravating circumstance justified beyond a reasonable doubt the death sentence. Third, as the state contends, the jurors confirmed in open court that the two verdicts of death by lethal injection were indeed their verdicts. Therefore, even if we assume the jury concluded in Form 2 that the three mitigating circumstances probably existed, we could conclude, on the basis of Form 3, that they did not outweigh the aggravating circumstance. However, we are not aware of any authority that permits the application of a harmless error analysis to mitigating circumstances. See, Shipper v. South Carolina, 476 U.S. 1 (1986) (indicating that errors relating to mitigating circumstances are prejudicial under any standard). Moreover, this court can perform the harmless error analysis in Ark. Code Ann. § 5-4-603(d) (Repl. 1993) only if the jury found no mitigating circumstances. Greene, 317 Ark. 350, 878 S.W.2d 384. On this record, it is impossible to discern whether the jury found any mitigating circumstances. Therefore, we reverse the judgments of sentence to death and remand for resentencing.
We turn now to appellant’s final three points for rever sal, which are three constitutional challenges to our death penalty statutes. In the first of these, appellant contends the Arkansas capital murder scheme does not allow a jury to show mercy to a particular defendant and therefore unconstitutionally mandates the death sentence. This court has considered and rejected this argument in several cases. E.g., Dansby v. State, 319 Ark. 506, 515-16, 893 S.W.2d 331, 336-37 (1995) (quoting Johnson, 308 Ark. at 17-18, 823 S.W.2d at 806). We reject the argument again in this case.
Next, appellant contends the statutory definition of the aggravating circumstance “especially cruel or depraved” in section 5-4-604(8) is void for vagueness on its face and as applied to him. He claims the definitions do not provide guidance to channel the jurors’ discretion with clear and objective standards.
The General Assembly rewrote this aggravating circumstance in Act 683 of 1991 after this court declared in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), that its statutory predecessor was unconstitutional in violation of the Eighth and Fourteenth Amendments to the federal constitution. The 1991 statutory amendment includes language substantially similar, if not identical, to language upheld as constitutional by the United States Supreme Court in Walton v. Arizona, 497 U.S. 639 (1990). Greene, 317 Ark. 350, 878 S.W.2d 384. For the reasons stated by the Supreme Court in Walton, our statute is therefore not void on its face.
In the instant case, the jury was instructed on the statutory definitions of “especially cruel” and “especially depraved.” In fact, the definitions appeared on the face of “Form 1 —Aggravating Circumstances” the verdict form pertaining to aggravating circumstances. Appellant’s argument that the definitions are unconstitutional as applied to him does not rest upon an independent ground, but rests upon a finding that the definitions are void on their faces. Given the limitations of appellant’s argument, and given our conclusion that the definitions are not void on their faces, we hold that this statutory aggravating circumstance was not unconstitutional as applied to appellant.
Finally, appellant argues the capital murder statute under which he was charged, section 5-10- 101(a)(4), is unconstitutional under the federal Eighth and Fourteenth Amendments because it fails to adequately narrow the class of persons eligible for the death penalty and permits arbitrary prosecutions. This court has previously considered and rejected this argument. E.g., Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Greene, 317 Ark. 350, 878 S.W.2d 384; Cox v. State, 313 Ark. 184, 195-96, 853 S.W.2d 266, 271-72 (1993) (citing Johnson, 308 Ark. at 16-17, 823 S.W.2d at 805-06). We do so again in this case.
For the reasons stated in Williams v. State, 321 Ark. 344, 896 S.W.2d 874 (1995), we no longer conduct a proportionality review of the death sentence. However, our review on appeal may include a review of the aggravating and mitigating circumstances presented to the jury and a harmless error review in accordance with section 5-4-603(d). We conclude no erroneous finding of any aggravating circumstance was made by the jury. Therefore, we do not conduct a harmless error review under section 5-4-603(d). Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). In addition, as we previously concluded, we are not able to discern whether the jury found mitigating circumstances. See, Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995), and Greene, 317 Ark. 350, 878 S.W.2d 384 (stating that when mitigating circumstances are found, the statute does not authorize a harmless error review). In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for prejudicial errors objected to by appellant but not argued on appeal, and no such errors were found in this case.
The judgments of conviction are affirmed, as are the judgments of sentence on the attempted charges. The judgments of sentence to death by lethal injection are reversed, and the case is remanded to the trial court for resentencing in accordance with section 5-4-616.
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Tom Glaze, Justice.
Kenneth Reams appeals from his capital felony conviction sentence for which he was sentenced to death. He raises seven points on appeal, but only four are properly preserved. Upon review, we conclude none of the points are meritorious.
We first consider Reams’s suggestion that we conduct a proportional review. Such a review is not required. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995); Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). However, this court has said that, in death penalty cases, it will continue to review the aggravating and mitigating circumstances presented to the jury and a harmless error review of the jury’s findings. Id. In reviewing those circumstances, we point out that the jury unanimously found two aggravating and no mitigating circumstances. The two aggravating circumstances were that (1) Reams had committed the murder in issue in order to realize a pecuniary gain and (2) he had previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person.
Here, Reams’s own testimony supported the first aggravating circumstance. Reams, who was charged as an accomplice with Alford Goodwin in the murder of Gary W. Turner, testified that he and Goodwin planned to commit an aggravated robbery at a bank automatic teller machine because Goodwin said, “He needed the money for graduation.” Reams admitted that he and Goodwin, who was armed with a .32 revolver, waited at a local automatic teller machine for someone to drive up so they could rob them. He further described how he and Goodwin approached Turner’s vehicle at the machine; he also related Goodwin shot Turner. Regarding the jury’s second aggravating circumstance, Reams was shown to have previously been convicted of two aggravated robbery offenses and these offenses, by their definition, reflect Reams had committed prior crimes involving the threat of violence to another. See Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Ark. Code Ann. § 5-12-103(a) (Repl. 1993).
Concerning the review of mitigating circumstances, we note that there was some evidence of six mitigating circumstances, but the jury unanimously agreed that those mitigating circumstances did not exist. Suffice it to say, the record supports the jury’s unanimous findings that two aggravating circumstances existed beyond a reasonable doubt and no mitigating circumstances existed. To impose the death penalty, this court has held that a jury need only unanimously agree that one aggravating circumstance exists. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995). Here, two were shown.
In another point, Reams contends that, because of his mental retardation, his execution would violate state and federal guarantees against cruel and unusual punishment and deprive him of due process and equal protection of the law. Reams relies on Act 420 of 1993, now codified at Ark. Code Ann. § 5-4-618 (Repl. 1993), to support his argument that his mental retardation precludes the jury from imposing the death penalty sentence. His argument is without merit.
Reams concedes that he is not entitled to the rebut-table presumption of mental retardation under the Act, since his intelligence quotient is above that 65 quotient prescribed by law. This may well be the reason Reams failed to raise the defense of mental retardation as an affirmative defense as is required by Act 420. See § 5-4-618(d)(l). In any event, he did not assert Act 420 as a defense prior to trial, and for this reason alone, Reams’s argument must fail. While Reams mentions other constitutional arguments connected with his purported mental retardation, those arguments were not properly raised below, so we do not address those for the first time on appeal. See Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).
In a third point, Reams asserts that the trial court’s submission of pecuniary gain to the jury as an aggravating circumstance in the penalty phase was an unconstitutional “double-counting” which violated the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment. He argues in part that Arkansas’s definition of capital murder does not sufficiently narrow the crime for which the death penalty can be imposed and that Arkansas’s law, providing narrowing during the penalty stage only, fails to meet the Eighth Amendment requirements. The Supreme Court, the United States Eighth Circuit Court of Appeals and this court have rejected this “double-counting” and narrowing argument. Lowenfield v. Phelps, 484 U.S. 231 (1988); Perry v. Lockhart, 871 F.2d 1384 (8th Cir.); cert. denied, 493 U.S. 959 (1989); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Porter v. State, 321 Ark. 555, 905 S.W.2d 835 (1995); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800, cert. denied, 112 S.Ct. 3043 (1992). We see no need to revisit or reconsider this issue, yet again.
In a fourth point, Reams states that he is black and the victim was white and that racial overtones were involved in the commission of the crime. He urges that, contrary to the holding in Batson v. Kentucky, 476 U.S. 79 (1986), the prosecutor here unconstitutionally used his peremptory strikes to exclude blacks from the jury. In Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994), this court set out the following required procedures when a Batson objection is raised:
First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the state has the burden of showing that the challenge was not based on race. Only if the defendant makes a prima facie case and the state fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.
This court has further held that, on appeal, the standard of review for reversal of a Batson ruling is whether the trial court’s findings are clearly against the preponderance of the evidence. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).
Here, the trial court ruled that Reams made no prima facie case by showing racial discrimination was the basis of the prosecutor’s juror challenges. In Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), this court held that a defendant may make a prima facie case by showing that (1) the totality of the relevant factors gives rise to an inference of discriminatory purpose, (2) the total or seriously disproportionate exclusion of negroes from the jury venires or (3) a pattern of strikes, or questions and statements by a prosecuting attorney during voir dire.
In this appeal, Reams cites Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993), in support of his argument that he made a prima facie case by objecting to the prosecutor’s peremptory strike of the first venire person, Irma Johnson, who was black. Of course, no strike pattern or discriminatory purpose was evident merely because the first juror called and struck happened to be black. Nonetheless, the trial court assured Reams that, if a pattern developed later, it would require the prosecutor to provide a race-neutral explanation for striking Johnson. Reams never later renewed his objection regarding Johnson. Contrary to Reams’s suggestion, the Franklin decision is unhelpful here, because there, four other jurors had been voir dired when the first black juror was called and subsequently challenged by the state, and by the time the court ruled on the Batson objection, the jury was composed of only white jurors.
In sum, no strike pattern was shown when Johnson was struck by the state, nor did the state’s questions asked of her reflect a racially discriminatory motive. In fact, had the prosecutor been requested to provide an explanation for his decision to peremptorily excuse Johnson, he undoubtedly would have related Johnson’s concessions that her brother had been unsuccessfully prosecuted for robbery in 1988, her nephew had robbed a store in 1992 and her sister had been charged for a drug offense in federal court in 1992.
Reams next argues that the trial court erred in upholding the state’s peremptory challenge of black venireman, Matthew Henry. At this stage of voir dire, the state had used four peremptory challenges, including the one striking Mr. Henry — two strikes involved black jurors, Johnson and Henry, and two involved white jurors. Again the trial court ruled no prima facie “pattern” of discrimination was exhibited by the prosecutor, but it also delved into the state’s “race neutral” explanation for its peremptory strike of Henry.
Reams couches his argument on appeal in terms suggesting that the state’s disparate treatment of venire members not only established a pattern, but also showed the specious nature of the state’s explanation in striking Henry. Reams points out that the state purportedly wanted assurances from the potential jurors that they were aware of accomplice liability and could find an accomplice as guilty as the person who actually shot the victim. He argues white venire members Linda Messina, Carolyn Phillips and Dorothy Hodges had indicated the person who actually shot the victim should be punished more severely, but the state accepted them after each finally concluded that she could impose the death penalty, if accomplice liability was established. Reams asserts that, contrary to its treatment of Messina, Phillips and Hodges, the state struck Henry even though Henry indicated he could impose the death penalty if an accomplice was found guilty of capital murder.
Reams’s argument breaks down when examining Henry’s answer when voir dired by defense counsel. While he previously said that he could impose the death penalty, he steadfastly adhered to his belief that “[he] could consider the level of participation of the defendant or the role he played in the crime when it came to punishment if he could discern the difference in the state of mind.” He further said, “I could do that if I could by some way see the difference in the state of mind and understand it or what is going to happen or whatever.” After Henry’s remarks, the prosecutor explained he wished to strike Henry because he believed Henry was of the opinion that, if Reams was not the shooter, he could not impose the death penalty.
The trial court voiced dissatisfaction with the state’s explanation of striking Henry, and instead ruled Reams showed no prima facie case. While we agree with the trial court’s ruling finding no discriminatory purpose or pattern, we also conclude the state’s explanation was clearly race neutral.
Reams’s Batson argument also included black venire member, Muriel M. Hayes, who the state struck because of her reservations about imposing the death penalty. Mrs. Hayes said, “I really do not want to be a person who would cause someone being put to death, I would not want a guilty conscience, I would not want to feel guilty, and I would not want to be a part of saying that this person gets the electric chair.” The prosecutor’s explanation here was clearly based on something other than Ms. Hayes’s race and without anything more, his reason offered in striking her must be deemed race neutral. See Hernandez v. New York, 500 U.S. 352 (1991). For the reasons above, we affirm the trial court’s Batson rulings.
As previously mentioned, Reams argues three additional points on appeal, but those arguments were not argued or preserved below. His arguments are that (1) the jury did not adequately consider his youth (age 18 years) as a mitigating circumstance, (2) form 2, as a part of the verdict form, violated the Eighth and Fourteenth Amendments, and (3) jury members were given inadequate instructions on non-statutory mitigating evidence. Although we see no merit in these issues, it is unnecessary to discuss them further, since even in death penalty cases, a defendant must have raised the allegations of error at the trial court level by having made a specific, timely objection. See Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).
The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that there were no rulings adverse to Reams which constituted prejudicial error. Therefore, we affirm.
The evidence considered but not unanimously found by the jury suggested the following: (1) the capital murder was committed while Reams was under extreme mental or emotional disturbance; (2) the capital murder was committed while Reams was acting under unusual pressures or influences or under the domination of another person; (3) Ream’s youth at the time of his commission of the murder; (4) the murder was committed by another person and Reams was an accomplice and his participation was relatively minor; (5) Reams had no significant history of prior criminal activity; and (6) Reams suffered from borderline mental retardation.
Reams suggests Ms. Hayes was rehabilitated when she agreed she could consider the death penalty, but, at the same time she again stated that she would rather not do so. | [
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Bradley D. Jesson, Chief Justice.
This is the third appeal in this case. It originated as an action by the Arkansas State Highway Commission to enjoin the appellant from maintaining a gate, a fence and cabins on a Commission right-of-way. Injunctive relief was denied, and the Commission brought a successful appeal. See Arkansas State Highway Comm’n v. Townsend, 313 Ark. 702, 858 S.W.2d 66 (1993) (Townsend I). Our disposition of Townsend I, both in the written opinion and in the mandate, reflected that the case was reversed and dismissed.
After the mandate was issued on July 26, 1993, the Commission demanded that Townsend remove the structures. He refused to do so, and the Commission returned to the chancery court for relief. Under the same case number as the original action, the Commission filed a Petition to Enforce the Supreme Court Opinion and Mandate and for a Contempt Citation. The chancellor entered a decree on November 2, 1993, in which she ordered Townsend to remove the structures within twenty days. However, when Townsend asked that the decree be set aside, the chancellor did so. Upon reflection, she determined that she was powerless to act because the mandate provided the case was reversed and dismissed, rather than remanded.
That ruling gave rise to the second appeal. In Arkansas State Highway Comm’n v. Townsend, 317 Ark. 581, 879 S.W.2d 447 (1994) (Townsend II), we held that Townsend was wrong in contending that our use of the language “reversed and dismissed” deprived the chancellor of the power to enforce our holding in Townsend I. We stated the following:
In Townsend I, after reviewing this case de novo, we held that the chancery court was wrong in denying the Commission an injunction to force Townsend to remove his structures from the right-of-way — indeed, this language was very clear. Townsend claims that the phrase ‘reversed and dismissed’ should control over the opinion’s language, which, therefore, would deny the chancery court jurisdiction.
Granted, our signals to the trial court were not crystal clear in Townsend I as we reversed and dismissed the decree of the chancery court when we should have reversed and remanded the matter. However, the body of the opinion was quite clear in its intended result, despite our stated disposition.
Arkansas State Highway Comm’n v. Townsend, 317 Ark. at 584-85; 879 S.W.2d at 449.
We concluded our Townsend II opinion by directing that the chancellor’s first decree be reinstated. In response to that direction, the chancellor re-entered her decree on September 6, 1994. The decree gave Townsend twenty days to remove the structures from the right-of-way and also ordered Townsend to pay $487.00 in costs awarded by our Townsend II mandate. No appeal was taken from that decree.
Twenty days passed with no action by Townsend. The Commission filed a petition seeking a contempt citation, and Townsend was ordered to appear at a show cause hearing on November 1, 1994. At the hearing, Townsend argued that Townsend II was “bad law” and that any proceedings after Townsend I were barred by res judicata and law of the case. The chancellor gave no credence to that argument, saying that she specifically had been directed by this court to re-enter the decree ordering Townsend to remove the structures.
Townsend was held in contempt of the September 6 decree, with the proviso that he could purge himself of the contempt by removing the structures and paying the $487.00 within ten days of the hearing. Failing that, he would be sentenced to thirty days in the county jail. When Townsend still did not comply, the chancellor issued a pick-up order, directing the sheriff to arrest Townsend. Townsend brings his appeal from the contempt order and the pick-up order.
On appeal, Townsend argues that our mandate in Townsend /, which declared that the case was reversed and dismissed, is law of the case and no further proceedings may be had in light of the dismissal. We addressed that very argument in Townsend II, where we were asked to consider the effect of our inadvertent dismissal following the first appeal. We held unequivocally that the content of the opinion was clear in awarding relief to the Commission and that the mistaken language in our disposition did not deprive the chancellor of the power to enforce our holding.
In short, the argument that Townsend makes in this appeal was addressed in Townsend II. We recognized that the case should have been remanded rather than dismissed, but we did not waiver from our Townsend I holding. Any questions regarding our mistaken dismissal were answered in Townsend II. This being a chancery case, we had the power to award relief de novo. We did so, and directed the chancellor to re-enter her November 2nd decree. Upon remand, she had no choice but to follow our direc tion. See Carroll Electric Coop. Corp. v. Benson, 319 Ark. 68, 889 S.W.2d 756 (1994), where we said the following:
upon remand, a chancery court has no power to enter any decree except that directed by the Supreme Court, and it has no power to change or extend the mandate of the Supreme Court. The directions of the Supreme Court upon reversal and remand in an equity case are the law of the case and the guide for the lower court in entering the decree, (citations omitted)
Id.., at 71, 889 S.W.2d at 758.
Townsend’s argument in this appeal is simply an invitation to us to reconsider and overrule Townsend II. We decline to do so.
Affirmed.
Glaze and Corbin, JJ., dissent. | [
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Donald L. Corbin, Justice.
Appellant, Paul Edward Schalski, appeals the judgment of the Sebastian County Circuit Court convicting him of rape and sentencing him as a habitual offender to sixty years imprisonment. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). He raises four points for reversal, all of which involve admissibility of evidence. We find no error and affirm.
Appellant does not challenge the sufficiency of the evidence, so there is no need to repeat it in great detail. Essentially, the evidence showed that appellant offered the victim a ride home from a bar, told her he would take her to her friend’s house, instead drove to a remote wooded area, where he held a knife to her throat and back and raped her orally and vaginally several times, beat her, bit her, kicked her in the groin with his cowboy boots, bruised her breasts and burned them with a cigarette. Appellant left the victim in the woods without her clothing. She made her way to a highway where someone picked her up, covered her and took her to the police station. In his own defense, appellant testified he did not commit the rape.
Appellant’s first assignment of error is the trial court’s ruling allowing the state to impeach appellant’s credibility by introducing evidence of his previous conviction for false imprisonment. Appellant relies heavily on Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), a case in which the appellant was convicted of the sexual abuse of a nine-year-old boy. In Jones, this court held the trial court erroneously allowed the state to introduce evidence of Jones’s prior conviction for the rape of a little boy. The Jones court concluded the prejudicial effect of the previous rape conviction clearly outweighed its probative value on the issue of credibility, in part because sexual abuse of a child is such a particularly shameful and outrageous crime and in part because Jones had two previous convictions for burglary and theft that could have been used to impeach his credibility as a convicted felon. Appellant argues the crime of false imprisonment is similar to the present case in that the state showed the victim was taken into a secluded area and held against her will as she was raped and beaten. Furthermore, appellant emphasizes the state was also allowed to impeach his credibility with his prior conviction for theft by deception. Thus, appellant argues, his prior conviction for false imprisonment had scant probative value as to his credibility.
The case upon which appellant primarily relies, Jones, 274 Ark. 379, 625 S.W.2d 471, was overruled to the extent it was inconsistent with the ruling announced in George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991). In George, this court considered the admissibility of prior convictions under A.R.E. Rule 404(b) and concluded that prior convictions of similar sexual abuse crimes are admissible under Rule 404(b) as probative of motive, plan or intent. However, the George court did not consider the issue before us today: the admissibility of prior convictions of similar crimes for impeachment purposes under A.R.E. Rule 609(a).
When a defendant in a criminal case testifies in his own behalf, his credibility is placed in issue, and the state may impeach his credibility by introducing evidence of prior felony convictions in accordance with Rule 609. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994). The trial court has considerable discretion in determining whether the probative value bearing on credibility of a prior conviction outweighs its prejudicial effect, and we will not reverse that decision absent an abuse of discretion. Id. However, for prior convictions involving crimes of dishonesty, the trial court need not weigh the prejudicial effect against the probative value. See Jones, 274 Ark. 379, 625 S.W.2d 471.
The admissibility of a prior conviction for impeachment purposes is to be determined on a case-by-case basis. Thomas, 315 Ark. 518, 868 S.W.2d 85. Factors to consider include the impeachment value of the prior crime, the date of the con viction and the defendant’s subsequent history, the similarity between the prior conviction and the crime charged, the importance of the defendant’s testimony, and the centrality of the credibility issue. Id. This court has consistently allowed prior convictions to be used for impeachment purposes, even when the convictions are for similar crimes to those charged. Id. Even in Jones, 274 Ark. 379, 625 S.W.2d 471, this court acknowledged there may be instances in which proof of an earlier conviction for the same crime as the one on trial may be admissible. Rule 609 places limitations on the time and nature of the prior convictions used for impeachment and on their probative value, but does not place any limitation on the number of prior convictions that can be used for impeachment. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680, cert. denied, 464 U.S. 865 (1983).
Considering the factors stated in Thomas, we find no merit to appellant’s argument. The crime of false imprisonment has no sexual overtones of necessity and is therefore dissimilar to the crime of rape. Appellant was the only witness in his behalf, his testimony was therefore important. Because this was a rape case with only two witnesses, the victim and the rapist, the credibility of appellant’s testimony as the accused rapist was a critical issue. Given the foregoing considerations and the absence of limitations on the number of admissible prior convictions, we cannot say the trial court abused its discretion in allowing impeachment by appellant’s false imprisonment conviction.
Appellant’s second assignment of error is the trial court’s ruling allowing rebuttal testimony by the victim to identify appellant’s voice. After appellant took the stand and denied committing the rape, the state recalled the victim who testified unequivocally that she heard appellant’s testimony in court and that his voice was the voice of the person that raped her. Appellant contends this was improper rebuttal evidence because it was not in reply to any evidence offered in his case and should have been presented during the state’s case-in-chief with the victim’s in-court identification of appellant as the rapist.
This argument is without merit. This court has defined genuine rebuttal evidence as evidence offered in reply to new matters. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 114 S. Ct. 1306 (1994) (quoting Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986)). Evidence is still categorized as genuine rebuttal evidence even if it overlaps with the evidence in-chief so long as it is responsive to evidence presented by the defense. Id. The victim’s voice identification in this case was responsive to appellant’s testimony that he did not rape her and was therefore genuine rebuttal evidence. Identification was a critical issue in this case. Rebuttal evidence is a discretionary matter with the trial court, Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982), and we find no abuse of that discretion here.
Appellant’s third assignment of error is the admission of photographs of the victim taken at a hospital showing her bruises and injuries. Appellant argues the photographs were inflammatory and prejudicial and, because he did not dispute that the victim suffered these injuries, not relevant to any issue in the case. The state correctly points out that a defendant cannot prevent the admission of photographs simply by conceding the fact of the crime. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). Moreover, photographs of a rape victim’s injuries are relevant and admissible as proof of the element of forcible compulsion. Id. Even inflammatory photographs are admissible in the trial court’s discretion if they tend to shed light on any issue or enable the jury to better understand a witness’s testimony. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).
The trial court allowed the state to admit four photographs in this case. In its brief, the state describes these photographs as depicting different areas of the victim’s body: State’s Exhibit 1 showed the victim’s face with bite marks and a broken nose; State’s Exhibit 2 depicted knife wounds and scratches on the victim’s back; State’s Exhibit 3 showed numerous scratches on the victim’s legs; and State’s Exhibit 4 depicted yellow and purple bruises on the victim’s vaginal area. Despite the foregoing description, we are unable to address this issue fully because appellant’s abstract contains only photocopied black-and-white reproductions of the photographs. Simply put, we cannot tell what these photographs depict, and we certainly cannot tell whether they were without probative value. Consequently, we cannot say the trial court abused its discretion in admitting the four photographs. Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990).
As appellant’s fourth and final assignment of error, he challenges the denial of his motion to suppress a police officer’s observations of appellant’s truck and photographs of the truck. Appellant contends the evidence was gained as a result of a pretextual arrest for failure to appear because the officer knew appellant was a suspect in a rape case. Appellant argues he was prejudiced because the testimony and photographs were important to the state’s case since the victim had described in detail the truck the rapist drove and items contained in the truck. The trial court denied the motion to suppress because the officer was legally at the residence.
On appeal, the state does not attempt to justify admission of the challenged evidence. Rather, it argues appellant has not demonstrated prejudice resulting from the denial of appellant’s motion to suppress. Specifically, the state contends the challenged evidence was cumulative of other evidence admitted without appellant’s objection, namely the testimonies of Cami and Jason Patillo, and of appellant himself.
The victim described the truck her assailant drove as a black Ford pickup with a column shift and indoor-outdoor carpet in the floorboard. She aiso described two items hanging from the rearview mirror, an arrowhead and a plastic caterpillar that was changing into a butterfly. Cami Patillo testified she saw appellant’s truck on the morning after the rape occurred. She stated she observed he had wrecked his truck and that an arrowhead and butterfly were hanging from the rearview mirror. Cami’s husband, Jason Patillo, testified he saw appellant’s truck on the morning after the rape occurred and observed large scratches on the exterior. He also noticed an arrowhead and a butterfly hanging from the rearview mirror. On cross-examination and without objection, appellant testified he had scratches on his truck and that he had a butterfly and arrowhead hanging from the rearview mirror.
Even assuming without deciding that the challenged evidence was erroneously admitted as the result of an illegal search, given the foregoing evidence, which was admitted without objection by appellant, we agree with the state that the challenged evidence was cumulative and therefore appellant has not demonstrated prejudice from its admission, illegally obtained evidence that is erroneously admitted is subject to the constitutional harmless error analysis. Fahy v. Connecticut, 375 U.S. 85 (1963). Before a federal constitutional error can be held harmless, this court must declare it harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967) (cited with approval in Pollard v. State, 258 Ark. 512, 527 S.W.2d 627 (1975)). Given the fact that the challenged evidence was admitted at trial through four other witnesses, two of whom were disinterested and one of whom was appellant himself, we cannot say the challenged evidence might have contributed to the conviction. We therefore conclude it was harmless beyond a reasonable doubt. See Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992) (holding that similar evidence admitted without objection is cumulative and not prejudicial).
Appellant’s four assignments of error are without merit. The judgment of conviction is therefore affirmed. | [
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Per Curiam.
Nathaniel Thomas was convicted of one count of capital murder and two counts of first-degree murder. We affirmed. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). Mr. Thomas subsequently filed in the trial court a petition for post-conviction relief pursuant to Criminal Procedure Rule 37 which was denied. Appellant Thomas brings this appeal. We find one allegation which should be considered by the trial court and thus reverse and remand for further proceedings in keeping with this opinion.
The appellant claimed that his counsel was ineffective in that he failed to renew his motion for a directed verdict at the end of the evidence and by so doing caused appellant to waive his challenge to the sufficiency of the evidence. This court has held that an allegation of ineffective assistance of counsel based on counsel’s failure to move for a directed verdict was not cognizable under Rule 37. Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987). We have further held that an allegation of ineffective assistance of counsel based on a trial attorney’s failure to renew a directed verdict motion was not grounds for post-conviction relief. Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991).
We now overrule Philyaw, Mobbs and their progeny prospectively to the extent that those cases hold that an allegation of ineffective assistance of counsel for failure to raise the issue of the sufficiency of the evidence in accordance with the prevailing rules of procedure cannot be grounds for relief under Rule 37. Accordingly, we reverse and remand this matter so that the trial court may address all allegations of ineffective assistance of counsel raised by appellant in his petition for post-conviction relief. In doing so, we do not intend to suggest that the allegation made by appellant is necessarily meritorious; only that the trial court should consider it.
To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable.
A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668 (1984).
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Robert L. Brown, Justice.
Appellant Billy/Dot, Inc. d/b/a Char-Lee’s Bingo appeals a dismissal of its complaint for a declaratory judgment and for injunctive relief against appellee, Ron Fields, Prosecuting Attorney for the 12th Judicial District. The appeal has no merit, and we affirm.
Billy/Dot made certain factual allegations in its complaint for declaratory and injunctive relief but also posited its interpretation of Act 939 of 1993, now codified at Ark. Code Ann. § 26-52-1501 et seq. (Supp. 1993). According to Billy/Dot’s complaint, the General Assembly enacted Act 939 in 1993 because there was a dire need for funds for the State Medicaid program. The complaint states that to meet this need, the General Assembly determined that the State should engage in the bingo business to raise revenue or, alternatively, tax bingo operations. To induce persons knowledgeable about the bingo business to act as tax collectors, Billy/Dot asserted that the General Assembly passed Act 939 so that the State could derive essentially all the profits from a bingo operation, using a 20 percent tax on gross proceeds, and the bingo operator could realize a modest return. Billy/Dot alleged that it was licensed by the State to conduct the State’s bingo games in Ft. Smith and to collect the resulting revenues for the State. In 1993, Billy/Dot stated that it remitted approximately $90,000 to the State of Arkansas. To enable it to collect and remit these taxes, Billy/Dot stated that it incurred expenses for its building, equipment, supplies, and personnel, and, as a result, it had a real interest in determining the questions raised in its complaint.
Billy/Dot further alleged that the critical statements made to the prosecuting attorney about its bingo operation were inspired by Oklahoma residents who wanted Arkansas’s bingo business. Billy/Dot also asserted that the prosecuting attorney had threatened to take action against it to stop collection of revenues and to impose penalties. In its prayer for relief, Billy/Dot sought (1) a declaration that Act 939 was valid and that the prosecuting attorney had no standing to interfere with the revenue-producing activities of the State, and (2) injunctive relief.
Fields, as Prosecuting Attorney, moved to dismiss the complaint for failure to state a claim pursuant to Ark. R. Civ. P. 12(b)(6). Three reasons were cited in his motion: (1) Billy/Dot lacked standing to bring an action on behalf of the State; (2) chancery court lacked the authority to enjoin the prosecuting attorney from performing his duties; and (3) there was an absence of a justiciable controversy between the parties.
On December 22, 1994, the chancery court entered its order granting Fields’s motion to dismiss. In doing so, the court found that Billy/Dot did not state a justiciable cause of action because the parties to the litigation were not proper. Specifically, the court found that the administration of Act 939 was vested in the Director of the State Department of Finance and Administration and that neither the Director nor the State of Arkansas had been joined as a party to the action. The court further found that Act 939, by its express terms, did not purport to legalize bingo and that prosecution of bingo operations was a lawful prosecutorial function.
In determining whether a motion to dismiss was appropriately granted, we treat the facts alleged in the complaint as true and view them in the light most favorable to the party filing the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). In making this determination, we look only to the allegations in the complaint and not to matters outside of the complaint. Neal v. Wilson, supra; Deitsch v. Tillery, supra. Bearing these standards in mind, we turn to Billy/Dot’s first point that the chancery court erred in finding that Billy/Dot lacked standing to bring the lawsuit. We initially note that we treat only the facts alleged in a complaint as true for purposes of a motion to dismiss but not a party’s theories, speculation, or statutory interpretation.
Billy/Dot mischaracterizes what Act 939 of 1993, now codified at Ark. Code Ann. § 26-52-1501 et seq. (Supp. 1993), provides. Act 939 does not place the State in the bingo business or provide that bingo operators are “partners” or “agents” of the State for purposes of collecting gross receipts taxes. What Act 939 does is levy a 20 percent tax on the gross receipts of bingo businesses, which revenues are earmarked for the State Medicaid program. It further provides that bingo operations must register with the State and that the taxes must be paid to the State Department of Finance and Administration by the fifteenth of each month. Without question, Act 939 views bingo operators as taxpayers under the Act and not tax collectors.
Moreover, the administration of Act 939 is expressly placed in the hands of the Director of the Department of Finance and Administration:
(a) The administration of this Act shall be vested in and shall be exercised by the Director [of the Arkansas Department of Finance and Administration] and shall be subject to the provisions of the Arkansas Tax Procedure Act, Arkansas Code §§ 26-18-101 et seq.
(b) The Director shall promulgate rules and regulations and prescribe forms for the proper enforcement of this Act.
(c) The tax levied hereunder shall be due and payable to the Arkansas Department of Finance and Administration in the same manner as provided for by Arkansas Code § 26-52-501, however tax payments under this Act shall be due and payable on the fifteenth of each month.
Ark. Code Ann. § 26-52-1506 (Supp. 1993).
In sum, Billy/Dot was not operating its bingo business under the aegis of the State by virtue of Act 939 or licensed by the State to collect taxes in any form or fashion under the Act, and the chancery court was completely correct in finding that Billy/Dot lacked standing to bring the lawsuit. See Gray v. Ragland, 277 Ark. 232, 640 S.W.2d 788 (1982). The chancery court further did not err in finding that the lawsuit was fatally defective because the Director of the Arkansas Department of Finance and Administration (the true tax collecting authority) and the State were not joined as parties. We agree with the chancery court that the absence of these vitally interested parties, in light of Act 939, renders this action for declaratory relief nonjusticiable. See Ark. Code Ann. § 16-11 l-106(a) (1987); see also Yamauchi v. Sovran Bank/Central South, 309 Ark. 532, 832 S.W.2d 241 (1992).
Finally, the chancery court appropriately concluded that it had no authority to enjoin a prosecuting attorney from closing Billy/Dot’s bingo operation and from imposing penalties. Our cases are legion that chancery courts will not interfere to enjoin anticipated criminal prosecutions. See, e.g., Deaderick v. Parker, 211 Ark. 394, 200 S.W.2d 787 (1947); Gordon v. Smith, 196 Ark. 926, 120 S.W.2d 325 (1938); Rider v. Leatherman, 85 Ark. 230, 107 S.W. 996 (1908). Billy/Dot advances the argument that it is conducting a business and that its business is a property right which can be protected by chancery court, even when the injunctive relief sought is against criminal prosecution. This issue was raised cryptically before the chancery court. However, because it was touched upon, we choose to address it.
While Billy/Dot is correct that a narrow exception has been carved out of the general principle that chancery court will refrain from interfering with prosecutorial functions, that exception is limited to the chancery court’s protection of property rights in the form of lawful businesses. See, e.g., City of Texarkana v. Brachfield, 207 Ark. 774, 183 S.W.2d 304 (1944); Esskay Art Galleries v. Gibbs, 205 Ark. 1157, 172 S.W.2d 924 (1943); Local Union No. 313 v. Stathakis, 135 Ark. 86, 205 S.W. 450 (1918). Here, there is no question but that playing bingo for money constitutes gambling which is a criminal offense under our statutes, and the chancery court so found. In doing so, the court correctly cited State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992), in its order.
Billy/Dot admits that it operates a bingo establishment where money is at risk, but it is wrong in contending that Act 939 legalizes bingo. The Act specifically does not make bingo legal, as is evidenced by its Emergency Clause:
[T]hat this tax and the requirement for annual registration are not intended to address any question of legality or illegality of the conduct of playing bingo;
Act 939 only provides for taxation of bingo revenues. Because there is no lawful business operation at issue here, there is no valid property right to be protected in this matter.
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Per Curiam.
On October 2, 1995, this Court issued a Per
Curiam Order remanding the above styled case for a new sentencing trial because of numerous errors and omissions in the record, reported by substitute court reporter, Shelley J. Davis. A copy of that Per Curiam is attached.
The Court now refers this matter to the Board of Certified Court Reporter Examiners to conduct the necessary proceedings to determine whether disciplinary action should be taken against court reporter Shelley J. Davis. | [
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Per Curiam.
This is a civil case. Paul G. Miller filed a pro se “complaint in equity” against three persons. Each of the three defendants filed a motion to dismiss the complaint, and the circuit court granted each of the motions with prejudice in separate orders, the last of which was entered June 19, 1995.
Plaintiff Miller filed an untimely notice of appeal of the three orders on July 27, 1995. When he tendered the record to this court, the clerk declined to lodge it. Miller subsequently filed the motion for rule on clerk which is now before us in which he contends that the record should be filed because he did not receive adequate notice that the complaint had been dismissed.
The motion is denied. It is clear that in a civil matter the plaintiff bears the responsibility of being aware of the proceedings and filing a timely notice of appeal if an adverse final ruling is entered. Karam et al. v. Halk, 260 Ark. 36, 537 S.W.2d 791 (1976). There is no provision for a belated appeal on the ground that the plaintiff was unaware that an order had been entered as is permitted in certain instances under Criminal Procedure Rule 36.9 in criminal cases.
Motion denied. | [
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Tom Glaze, Justice.
This is an election case which involves candidates who sought election to the office of Justice of the Peace of District 9 in Washington County. On or before April 5, 1994, John R. Smith filed as a Democratic Party candidate and Johnny Tittle filed as a Republican Party candidate for this office. Both candidates were unopposed. On or before June 7, 1994, the respective party county committees met to canvass election returns and certify the primary election results, and June 20, 1994 was the date political party county conventions met to certify nominees for township and other offices. See Ark. Code Ann. §§ 7-7-203(h) and -102 (Repl. 1993). No one contested either Smith’s or Tittle’s respective party certifications of nomination within the twenty-day period established in Ark. Code Ann. § 7-5-801 (Repl. 1993), which ended on June 27, 1994.
In preparation for the November 8, 1994 General Election, the respective party county committees or conventions were required under Ark. Code Ann. §§ 7-1-101(4) and 7-7-203(k)(2) (Repl. 1993) to file their final certified lists of township nominees no later than September 23, 1994. However, prior to that September 23rd date, Smith notified the Washington County Democratic Committee by letter dated September 12, 1994, that he must withdraw his candidacy, because he discovered that he resided just outside Quorum Court District 9. In other words, Smith could not serve if elected.
On September 14, 1994, the Washington County Democratic Convention, pursuant to Ark. Code Ann. § 7-7-401 (Repl. 1993), chose Ronald G. Woodruff as its replacement for Smith, and it certified Woodruff as its party nominee for the District 9 Justice of the Peace position. Woodruff defeated Tittle in the November 8 General Election, but, on November 28, 1994, Tittle filed a declaratory judgment and mandamus action, asking the circuit court to declare Woodruff’s election null and void, and requesting the county board of election commissioners to certify Tittle as the only candidate eligible for that office. The circuit court denied Tittle’s request for relief and Tittle brings this appeal claiming the circuit court erred in doing so. We affirm.
Tittle’s argument is premised on his reading of § 7-1-101(4) which defines “vacancy in nomination.” That provision defines the term as the circumstances in which the nominee of a political party selected at a primary election shall not be certified as the nominee due to death, resignation, withdrawal, or other good and legal cause arising subsequent to nomination and preceding the final date for certification of nominations.
Tittle asserts that Smith had never been certified as the Democratic justice of the peace nominee for District 9, but instead he withdrew his candidacy on September 12th before his party committee certified his nomination on September 23rd. Because Smith withdrew when he did, Tittle contends no vacancy in nomination occurred as contemplated by § 7-1-101(4); therefore, Woodruff’s nomination was void.
We first point out that, contrary to Tittle’s assertion, Smith became the Democratic nominee for District 9 Justice of the Peace, and he was declared as such when he was certified as the unopposed winning candidate at the primary election. See § 7-7-102. On the first Monday following the general primary election held on June 14, 1994, the Washington County party conventions were required to meet, and immediately following the conventions, the respective party county committee members were mandated by law to certify their lists of duly nominated candidates for county, township, and municipal officers to the county board of election commissioners and the county clerk. See § 7-7-203(i) and (j). By law, the party convention and committee actions here took place on or about June 20, 1994. As previously mentioned, no one contested Smith’s certification of nomination or certificate of vote within the twenty-day period provided under § 7-5-801. As a consequence, Smith was the certified Democratic nominee for the District 9 Justice of the Peace position before and at the time he withdrew his nomination leaving a vacancy in September 1994.
Citing Stewart v. Hunnicutt, 178 Ark. 829, 12 S.W.2d 418 (1929), Tittle states he had no standing to challenge Smith’s candidacy or certification. He then suggests that, if we uphold Woodruff’s election in these circumstances, political parties can then allow ineligible candidates to file for an office, win the primary election and then the party could substitute an eligible nominee in the ineligible candidate’s stead. Tittle laments that the filing deadline for candidates would be rendered ineffectual.
Tittle’s voiced concern ignores established law that gives a citizen the right to challenge the qualifications and eligibility of a candidate and to remove his or her name from the ballot, if found ineligible. See Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991); State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). In the Craig-head County case, this court noted that Ark. Code Ann. § 7-5-207(b) (Repl. 1993) prohibits the inclusion of an ineligible candidate on an election ballot; the court then set out the appropriate procedure whereby citizens could enforce that law by filing an action for mandamus and declaratory relief. This remedy, as mentioned in Craighead County, provides prompt consideration for determining a candidate’s eligibility and, if determined ineligible, the removal of that candidate’s name before the election. Arkansas’s election procedure and remedies afforded voters, candidates and other interested parties leaves little leeway for the type abuse suggested by Tittle.
Finally, Tittle fails to address the fact that he had the opportunity to raise the legal issue of Smith’s and Woodruff’s eligibility immediately upon the Democratic Party’s certification of Woodruff as that party’s nominee on September 23, 1994. Under the rem edy afforded under Craighead County, either Tittle or a citizen could have legally challenged the placement of Woodruff’s name on the November 8, 1994 General Election ballot, but for whatever reason, Tittle chose to challenge Woodruff’s qualifications after the election.
While a voter, candidate or other interested party might still successfully challenge the results of an election after it is held, this court has held many times that elections will not be invalidated for alleged wrongs committed unless those wrongs were such to render the results doubtful. Id. That certainly is not the situation here, nor does Tittle suggest the November 8 election results themselves were in question.
For the reasons above, we hold the circuit court was correct in holding Woodruff’s nomination complied with § 7-7-101(4) and in dismissing Tittle’s complaint. | [
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Bradley D. Jesson, Chief Justice.
The appellant, Kimberly Ann Dougan, was convicted of abuse of a corpse, Ark. Code Ann. § 5-60-101 (Repl. 1993), sentenced to six years’ imprisonment, and ordered to pay a $10,000.00 fine. She raises two arguments on appeal: (1) the trial court erred in denying her motion to dismiss on the basis that the statute is unconstitutionally vague; and (2) the trial court erred in denying her motion for directed verdict because there was insufficient evidence that she had “physically mistreated” a corpse. We affirm.
Facts
On the morning February 16, 1994, the body of a baby boy was discovered in a dumpster on Highway 306 near Colt, Arkansas. Appellant Kimberly Ann Dougan and her husband Ronald Dougan owned a gray van matching the description of a vehicle that had been seen in the area early that morning. Chief Investigator Glen Ramsey of the St. Francis County Sheriff’s Office went to the Dougan residence on February 18, and spoke with Ronald, who indicated that his wife had taken the van to go to the doctor on the morning of February 16, and had returned at approximately 6:30 or 7:00 a.m. According to Ronald, there was blood inside the van and on appellant’s clothing, which his wife explained was the result of a cyst on her ovary that had ruptured.
The appellant subsequently agreed to answer questions at the St. Francis County Sheriff’s Department. After being verbally advised of her Miranda rights and signing a waiver-of-rights form, she gave a statement to the officers. The statement related that, during the early morning hours of February 16, appellant began bleeding and awakened her sixteen-year-old-daughter, Ashley Kirksey. The two left their home in the family’s gray Plymouth Voyager van and drove to the parking lot of Baptist Memorial Hospital in Forrest City. Appellant “got scared,” and, against her daughter’s wishes, refused to go into the emergency room of the hospital. At approximately 4:10 a.m., while in the van, appellant delivered a baby boy, which was born with the umbilical cord wrapped around his neck. Ashley could not get the baby to move. Appellant cut the cord with a pair of scissors and tied it off with some old yellow crochet yarn. Rather than take the baby to the emergency room door, appellant, who was afraid she would be seen or that “someone would grab me and I wouldn’t know what do to,” instructed her daughter to start driving. According to appellant, Ashley drove to a dumpster west of Colt, and appellant placed the baby and some bloody sheets in the dumpster. Appellant maintained that she did not know that she was pregnant until she gave birth to the baby in the parking lot. She explained that she did not ask her husband to go with her to the hospital because they did not get along. According to appellant, her husband was “more interested in CB’s” and constantly accused her of being unfaithful.
Following appellant’s statement, she was charged with first-degree murder. After a complete autopsy revealed that the child had been stillborn, appellant was charged with abuse of a corpse, codified at Ark. Code Ann. § 5-60-101 (Repl. 1993). The trial court denied appellant’s pretrial motion to dismiss the charges against her on the basis that the abuse of corpse statute was void for vagueness.
At trial, the State offered the testimony of James Meredith, the county coroner, who observed the “full term” baby at the scene. While he saw no evidence of trauma, it was Dr. Meredith’s opinion that the baby died of exposure and neglect, and that had the baby received any medical attention whatsoever, it would have lived.
Ashley Kirksey testified that, at 2:00 a.m. on February 16, her mother woke her up and got into bed with her. At 4:00 a.m., her mother awakened her a second time and told her that she had to go with her. Her mother got three sheets out of the linen closet and a pair of scissors from the kitchen, and told Ronnie that she and Ashley were going to the hospital. When they got into the van, her mother told her that she was in labor. When Ashley told her that they had to go to the hospital, her mother refused, stating that she was not going to keep the baby because she and Ronnie were having problems, and because she “couldn’t handle another kid.” When they arrived at the parking lot of the hospital, her mother stated that she would give the baby to the nurses after it was born. Ashley got in the back of the van with her mother “and then the baby came out and I caught it.” The umbilical cord was wrapped around the baby’s neck. When Ashley pushed on its arm, the baby .would not move or cry. Ashley asked if she could take it inside the hospital, but her mother would not allow her to do so. Ashley tied and cut off the umbilical cord. After waiting for approximately 40 to 45 minutes for the afterbirth, they drove toward Colt. At her mother’s direction, Ashley opened the sliding door to a dumpster and put the baby, sheets, and afterbirth inside.
At the close of the State’s case-in-chief, Dougan renewed her motion to dismiss on the basis that § 5-60-101 was void for vagueness. She also moved for directed verdict on the basis that there was insufficient evidence that she had “physically mistreated” the corpse under the statute. The trial court denied both motions. Dougan presented no evidence on her behalf. The jury returned a verdict finding Dougan guilty as charged. After hearing evidence during the sentencing phase, the jury recommended that Dougan be sentenced to six years’ imprisonment and assessed a $10,000 fine. The trial court entered judgment against Dougan accordingly, and she appeals.
I. Constitutionality of Ark. Code Ann. § 5-60-101
Dougan maintains that the trial court erred in denying her motion to dismiss on the grounds that the abuse of corpse statute, Ark. Code Ann. § 5-60-101 (Repl. 1993), is unconstitutionally vague. The statute provides in pertinent part as follows:
(a) A person commits abuse of a corpse if, except as authorized by law, he knowingly:
(1) Disinters, removes, dissects, or mutilates a corpse; or
(2) Physically mistreats a corpse in a manner offensive to a person of reasonable sensibilities.
Dougan was charged under subsection (a)(2) of this statute. At a pretrial hearing, Dougan moved to dismiss the charge “based on the absence of judicial decisions within the statute itself.” Particularly, Dougan argued that the statute provides no definitions for the terms “physically mistreats,” “in a manner offensive,” and “reasonable sensibilities,” and thus, the statute “fails to reasonably prescribe the conduct that is prohibited.” At the conclusion of the hearing, the trial court summarily denied Dougan’s motion to dismiss.
We set forth the procedures for determining whether a statute is unconstitutionally vague in State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992):
Our review of challenges to the constitutionality of statutes begins with the principle that statutes are presumed to be constitutional. The burden of proving a statute is unconstitutional is upon the party challenging it. If it is possible to construe a statute as constitutional, we must do so.
The norm by which we determine when a statute is void-for-vagueness is whether it lacks ascertainable standards of guilt such that persons of average intelligence must necessarily guess at its meaning and differ as to its application. The law must give fair warning in definite language of the prohibited act. In addition to fair warning, a statute is also void-for-vagueness if it is so broad that it becomes susceptible to discriminatory enforcement. Nev ertheless, flexibility, rather than meticulous specificity or great exactitude, in a statute is permissible as long as its reach is clearly delineated in words of common understanding. Moreover, impossible standards of specificity are not constitutionally required, even in criminal statutes. A statute will meet constitutional muster if the language conveys sufficient warning when measured by common understanding and practice. Additionally, it is not necessary that all kinds of conduct falling within the reach of the statute be particularized and the statute will not be struck down as vague only because marginal cases could be put where doubts might arise.
309 Ark. at 424-425. (Citations omitted and emphasis added.) See also Manati v. State, 311 Ark. 17, 842 S.W.2d 845, cert. denied 113 S.Ct. 1647 (1992); heavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993); Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994).
We have not had occasion to interpret Ark. Code Ann. § 5-60-101. However, we have recognized that the common law in force at the time the statute was passed is to be taken into account in construing undefined words of the statute. Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987); citing State v. Pierson, 44 Ark. 265 (1884). In ascertaining the common law, we look not only to our own cases, but to early English cases, early writers on the common law, and cases from other states. Meadows v. State, supra; citing Ark. Stat. Ann. § 1-101 (Repl. 1976); Baker v. State, 215 Ark. 851, 223 S.W.2d 809 (1949). In Baker, the appellant kept the body of an elderly man for approximately five days after his death for the purpose of receiving and cashing his welfare check, and was prosecuted for “treating a dead body indecently” under the common law. During these five days, “[decomposition of and other ghastly conditions of the body had occurred.” Id. at 853. In rejecting Baker’s argument that she had committed no offense, we relied in part on the following authorities:
In 17 C.J. 1148, in discussing offenses against dead bodies, this appears: “At common law it was an offense to treat the dead human body indecently, and various specific offenses were recognized. Ordinarily it is a misdemeanor for one upon whom the duty is imposed of having a dead body buried to refuse or neglect to perform such duty.
Wharton’s Criminal Law, 12th Ed., Vol. II, § 1704, says: “Indecency in treatment of a dead human body is an offense at common law, as an insult to public decency. Hence it is indictable to expose such a body without proper burial;...”
Id. at 854. (Emphasis added.) Although Baker was relieved from the common law burden of providing burial for the decedent, we held that the jury was justified in finding her guilty of the common law offense of “treating a dead body indecently.”
Model Penal Code § 250.10 defines the offense of “abuse of corpse” as follows: “Except as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor.” In Comment 2, the drafters of the Model Penal Code state as follows:
[This offense] covers one “who treats a corpse in a way that he knows would outrage ordinary family sensibilities.” This phrasing includes sexual indecency but is not so limited. It also reaches physical abuse, mutilation, gross neglect, or any other sort of outrageous treatment of a corpse. The overreaching purpose is to protect against outrage to the feelings of friends and family of the deceased . . .
The distinguishing features of the Model Code offense are the generality and comprehensiveness with which the proscribed conduct is defined. Section 250.10 covers any conduct that would “outrage ordinary family sensibilities.” This formulation is sufficiently broad to preclude gaps in coverage and yet sufficiently precise in its statement of the ultimate question to provide a meaningful standard of decision. Any possible problems of indeterminacy and lack of notice to the actor are resolved by the requirement of knowledge with respect to the outrageous character of his conduct. Thus, the person who is not aware that his acts would offend family sensibilities does not commit an offense under this section, even though precisely that reaction obtains. Of course, the actor’s idiosyncratic view of what is outrageous does not matter. The standard is objective; it does not vary either to exculpate on the basis of the actor’s unusual callousness or to condemn for outraging an excessively delicate relative of the deceased.
Model Penal Code § 250.10, Comment 2 (1980). The drafters depict the Arkansas, statute as “a generic approach to defining the proscribed conduct but limit[ing] the offense to physical mistreatment that would be offensive or outrageous to ordinary sensibilities.” Id.
At least two states have upheld similar statutes against void-for-vagueness challenges. Ohio Revised Code Annotated (Anderson) § 2927.01(B) provides that “no person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities.” A violation of this provision constitutes “gross abuse of a corpse” and is a felony offense. In State v. Glover, 479 N.E.2d 901 (Ohio App. 1984), the Ohio Court of Appeals reversed a trial court’s pretrial dismissal of an indictment against Glover for gross abuse of a corpse on the basis that the statute was unconstitutionally vague. In Glover, the Ohio Court of Appeals determined that “[t]he words, ‘treat,’ ‘human corpse,’ ‘way,’ ‘outrages,’ and ‘sensibilities,’ are commonly understood by persons of common intelligence.” 479 N.E.2d at 904, citing Webster’s New International Dictionary (2 Ed. 1954) 2699, 597, 2890, 1734, and 2279. In recognizing that, in the area of obscenity, courts have consistently approved legislation that required a factfinder to apply contemporary community standards, the Glover court concluded that the Ohio statute was not unconstitutionally vague. Id.; see also State v. Gardner, 582 N.E.2d 1014 (Ohio App. 6 Dist. 1989).
Pennsylvania’s abuse of corpse statute, like Ohio’s statute, closely follows the Model Penal Code approach. See 18 Penn. Stat. Ann. § 5510. In Commonwealth v. Smith, 567 A.2d 1070 (Pa. Super. 1989), alloc. den. 585 A.2d 468 (Pa. 1991), the Pennsylvania Superior Court considered the issue of “whether a person who knowingly leaves a corpse to rot, without making proper arrangements for a proper burial has ‘treat[ed] a corpse in a way that [s]he knows would outrage ordinary family sensibilities.’ ” 567 A.2d at 1073. Smith, a habitual user of cocaine, had a history of neglecting her three-year-old daughter, who died of mal nutrition. The decomposed and mummified body of the girl was found in a kneeling position at the foot of her bed with her head laying over her folded hands on the bed. The door of the room had been locked from the outside by means of a rope that was tied to the outside of the door and attached to another doorknob. Smith said she concealed her daughter’s corpse because she was “afraid and confused.” Id. The Pennsylvania Court of Appeals, noting that “the purpose of drafting the statute in a very broad and general language was to insure that offenses such as concealing a corpse came within the purview of the statute,” affirmed Smith’s conviction for abuse of corpse. Id. In so holding, the Smith court reasoned that by concealing the corpse, Smith allowed it to be eaten by rodents and become mummified, and that her conduct constituted an outrage to ordinary family sensibilities. Id. See also John S. Herbrand, Annotation, Validity, Construction, and Application of Statutes Making it a Criminal Offense to Mistreat or Wrongfully Dispose of Dead Body, 81 A.L.R.3d 1071 (Supp. 1995).
In sum, we cannot conclude that our statute is unconstitutionally vague, as it conveys fair and sufficient warning when measured by common understanding. Particularly, the words “physically” and “mistreats” are commonly understood. The word “physical” is defined as “of or relating to the body,” and the term “mistreat” as “to treat badly: abuse.” See Webster’s Ninth New Collegiate Dictionary 760, 887 (1988). As recognized by the drafters of the Model Penal Code offense, any possible problems of indeterminacy and lack of notice to Dougan and others similarly charged are resolved by the requirement of knowledge with respect to the outrageous character of her conduct. Moreover, our position is supported by decisions upholding the Model Penal Code offense, which is written more broadly than § 5-60-101. For these reasons, we reject Dougan’s argument that the statute is unconstitutionally vague.
II. Sufficiency of the evidence
For her second assignment of error, Dougan asserts that the State’s evidence was insufficient to establish that she “physically mistreat[ed]” the corpse of her stillborn child within the purview of Ark. Code Ann. § 5-60-101(a)(2) (Repl. 1993). At the close of the State’s case in chief, Dougan moved for a directed verdict on the basis that the State failed to produce evidence of any physical harm to the child. She further argued that she was not charged with improper disposal of a body or improper burial. The State responded that the placing of a corpse in the dumpster constituted physical mistreatment of that corpse. The trial court denied the motion.
Prior to the enactment of the Arkansas Criminal Code in 1975, the Commentary to Ark. Stat. Ann. § 49-2921 (Repl. 1977), provided as follows:
This section is designed to cover not only sexual assaults on dead human bodies but also lesser forms of mishandling, abúse, or even neglect. Its former statutory counterpart was found in old Ark. Stat. Ann § 41-3701 (removal of body from grave), 41-3702 (purchasing body), 41-3703 (Repl. 1964) (opening grave). The primary purpose of the section is to protect the feelings of family of the deceased person.
(Emphasis added.) In light of this Commentary, we believe that the legislature intended that § 5-60-101 cover Dougan’s placement of her baby’s corpse in a dumpster, as such an act constitutes a form of mishandling, abuse, or neglect. In light of the evidence presented, we cannot agree that there was insufficient proof from which the jury could have concluded that Dougan’s conduct amounted to physical mistreatment of a corpse in a manner offensive to a person of reasonable sensibilities.
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Robert L. Brown, Justice.
On July 22, 1994, the appellants, Jed Lineberry and Heather Renee Lineberry, were found guilty by the Ft. Smith Municipal Court of violating the Used Motor Vehicle Buyers Protection Act and fined $250 plus costs. On Monday, August 22, 1994, the Lineberrys paid the municipal court clerk the fee for the record to appeal the judgment of conviction to circuit court. The payment of the fee for the appeal was actually paid on the thirty-first day following the entry of judgment because the thirtieth day fell on a weekend. The record of the municipal court proceeding was not filed in circuit court until August 23, 1994, which was the thirty-second day from entry of judgment.
The prosecutor moved to dismiss the Lineberrys’ appeal because the record was not lodged in circuit court within 30 days as required by Inferior Court Rule 9(a). The Lineberrys responded that the fault for lateness lay with the municipal court clerk and that Rule 9(a) was unconstitutional as applied because it violated their right to trial by jury and their due process rights as protected by the Arkansas and U.S. Constitutions. The circuit court dismissed the appeal as being untimely filed and remanded the matter to Ft. Smith Municipal Court.
On appeal, the Lineberrys mount the argument that Inferior Court Rule 9(a) works an impermissible waiver of their right to a jury trial. Rule 9(a) states: “All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.” We have previously applied Rule 9(a) to criminal appeals. Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994); Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989).
The precise issue of whether a late filing in circuit court thwarted the right to a jury trial was addressed by this court in 1989. See Edwards v. City of Conway, supra. In Edwards, the appellants also failed to perfect their appeal in circuit court within the required 30 days. We held that Inferior Court Rule 9(a) was mandatory and jurisdictional and that the appeal was appropriately dismissed for lateness. We then addressed the jury-trial argument:
However, persons are not entitled to a jury trial in municipal court except that such right to jury remains inviolate when they pursue their appeal to circuit court where their case is tried de novo. See Ark. Code Ann. §§ 16-17-703 and -704 (Supp. 1987). That appeal, as previously discussed above, must be properly perfected; the circuit court has no authority to accept untimely appeals. In other words, in order to exercise this right in circumstances as those present here, a timely appeal must have been filed pursuant to Arkansas Inferior Court Rule 9.
Edwards, 300 Ark. at 138, 777 S.W.2d at 584.
This court has steadfastly refused to countenance untimely appeals from municipal court to circuit court. See Hawkins v. City of Prairie Grove, 316 Ark. 150, 871 S.W.2d 357 (1994); Ottens v. State, supra; Bocksnick v. City of London, supra; Edwards v. City of Conway, supra. This is so even when the right to a de novo jury trial is lost due to a late filing of the record. These decisions, however, are not at odds with our criminal rules or the Arkansas or U.S. Constitutions. The right to a jury trial presupposes that the party is properly within the court’s jurisdiction. Here, that was not the case owing to the Lineberrys’ lateness in filing the record in circuit court.
The Lineberrys further contend that the procedure under Inferior Court Rule 9(a) violates the due process clause of the Arkansas and U.S. Constitutions. They argue that this is the case for three reasons: (1) technical errors of counsel should not deprive them of a jury trial in circuit court; (2) their access to the circuit court has been denied; and (3) as appellants from municipal court, they have been denied the same right to a belated appeal that appellants to the state appellate courts are afforded. None of these precise arguments was broached at the circuit court level. The Lineberrys merely contended in circuit court that due process required a fair trial in a fair tribunal. This contention was an adjunct to their jury-trial argument, which we have already answered in this opinion. With respect to the new reasons for reversal, we will not consider arguments raised for the first time on appeal. See Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).
Affirmed. | [
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David Newbern, Justice.
The appellants, Charles Arwood Haile, David Haile, and Brian Haile (the Hailes) seek reversal of a partial summary judgment entered in an action brought by them against Arkansas Power and Light Company (AP&L). We must dismiss the appeal because the Trial Court’s order is not a final order.
Depositions before the Trial Court when the partial summary judgment order was entered showed the following. In 1984 the Hailes built a new milking parlor at their dairy farm. Electricity for the parlor was supplied by AP&L. After milking operations commenced in the new milking parlor, the Hailes began to experience a decrease in milk production. Their herd suffered from an increase in mastitis and breeding difficulties.
The Hailes discovered in 1989 that stray electrical voltage in the new milking parlor was shocking the cows and was responsible for the decrease in productivity. The Hailes requested assistance from AP&L in identifying the source of the stray voltage. AP&L advised that there was nothing wrong with its service and that the problem must stem from improper wiring in the building.
The Hailes found nothing wrong with the wiring, and the problem continued. When, in November of 1992, AP&L installed an isolator device between its primary line and the Hailes’ secondary line, the stray voltage in the milking parlor was virtually eliminated.
The Hailes sued AP&L on August 16,1993, for damages suffered as a result of the shocks to the cattle allegedly caused by AP&L’s negligence. They also alleged that AP&L misled them by telling them that the problem was in the wiring of the milking parlor, and they sought damages under a strict product liability claim.
AP&L moved for summary judgment on the product liability claim and full or partial summary judgment on the negligence claim. The Trial Court granted the motion with respect to the product liability claim. The Trial Court overruled the motion on the negligence claim but ruled that, due to the three-year statute of limitations, the Hailes could not recover for damages suffered prior to August 16, 1990.
The Hailes moved for reconsideration and, alternatively, asked permission to introduce evidence of AP&L’s negligence and their damages prior to August 16, 1990, apparently for comparison purposes. The motion was denied. The Hailes then non-suited their negligence claim.
Lack of a final order
We confronted a similar situation in Ratzlaff v. Franz Foods of Ark., 255 Ark. 373, 500 S.W.2d 379 (1973), in which partial summary judgment was entered as to one count in each of the seven complaints. The plaintiffs then took a voluntary nonsuit on the two remaining counts. We said, “The controlling question is whether a plaintiff, by taking a voluntary nonsuit with respect to two counts in his complaint, can thereby convert an adverse partial summary judgment with respect to a third count into an appealable order.” We sustained a motion to dismiss the appeal for lack of a final order.
When the Ratzlaff case was decided, the law restricting appeals to those from final orders was found in Ark. Stat. Ann. § 27-2101. Today it is found in Ark. R. App. R 2(a) which permits appeal of final orders and other categories constituting exceptions not applicable here. The order must be final for this Court to have jurisdiction, thus it is a matter we will consider even though the parties do not raise it. Wilburn v. Keenan Cos., 297 Ark. 74, 759 S.W.2d 554 (1988); Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984).
Discussing the statutory provision on the finality required for an appeal in the Ratzlaff case, we said:
Here the appellants seek to circumvent the policy of the statute by holding two counts of their complaints in abeyance while they seek our opinion upon the validity of a third count. If that procedure is permissible, litigants may appeal from various interlocutory orders by taking a non-suit with respect to the rest of the case.
A voluntary nonsuit or dismissal leaves the plaintiff free to refile the claim, assuming there has been no previous dismissal. Ark. R. Civ. P. 41(a).
No doubt the Hailes intend to pursue their negligence claim if the issues they seek to present in this appeal are decided in their favor, and perhaps even if they are not. Their counsel candidly stated during oral argument before us that he pursued this appeal because he was left with just a “shell” of a lawsuit because the issues he seeks to present to us were decided adversely to his clients. It is, therefore, clear that this is an interlocutory appeal which we have no authority to entertain under Rule 2(a). As we said in the Ratzlaf case, when we are convinced an appellant pursues an unauthorized interlocutory appeal, the appeal will be dismissed. See also Cowan v. Schmidle, 312 Ark. 256, 848 S. W.2d 421 (1993).
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Robert L. Brown, Justice.
Appellant Jerry D. Frisby sued appellee Agerton Logging, Inc., for negligence in connection with an automobile accident which involved Frisby’s Toyota automobile and Agerton Logging’s truck. Agerton Logging counterclaimed against Frisby and contended that it was Frisby who was negligent. The jury returned a verdict in favor of Agerton Logging on Frisby’s complaint and in favor of Frisby on Agerton Logging’s counterclaim. Frisby now appeals on several grounds. Agerton Logging has not cross-appealed. We agree with Frisby on one point — that it was reversible error for the trial court to instruct the jury on sudden emergency (AMI 614). We, therefore, reverse the judgment and remand the matter for a new trial.
The vehicular accident in question occurred on Saturday, January 5, 1991, at approximately 1:30 p.m. on the Old Hillsboro Road, which is a narrow gravel road with a clay base, in Union County. At the ensuing jury trial on January 16 and 17, 1995, the following physical evidence came to light. Jerry Thomas, the local assistant fire chief, testified that he arrived at the scene of the accident and observed a small compact car off on one side of the road and a loaded log truck lying on its side on the other side of the road. The fuel tank on the left side of the log truck had been grazed as had the dual wheels on the left side behind the cab of the truck. The car had been struck on the left front side. The driver of the log truck was uninjured, but Thomas testified that Frisby was pinned inside the car and had to be cut out. Thomas observed debris and skid marks in the roadway. Thomas testified that the condition of the road was such that cars travelling in both directions would use the same pathway of ruts in the middle of the road.
Dale Mack, a resident in the area, also saw the vehicles off in the ditches. He further observed debris in the roadway and confirmed that the tracks in the road indicated that the traffic merged into one lane in the course of the turn where the accident occurred. Mack testified that there is a bank next to the road which impedes a driver’s vision around the curve. He admitted that there were no skid marks to indicate that Frisby had turned to avoid hitting the truck head on. He further stated that the truck had to have turned a little bit; otherwise, the car would have hit the front of the truck rather than the side. Mack testified that it was a dangerous, blind curve but that there was room to pass.
Frisby testified that he had been working as a rural mail carrier since 1987 and was delivering mail at the time of the accident. His mail route covered eighty-seven miles. He described how the wreck happened:
Well, I was driving down the Old Hillsboro Road, north on Old Hillsboro Road, and I came to this curve and I was on the inside of the curve going around and all at once just appeared right before me and in my lane of traffic was Mr. Agerton and just like that we were hit.
Later on in his testimony, Frisby reiterated that the truck was in his tracks on his side of the road. He could not tell if he or Agerton took evasive action. The inside of the curve was to Frisby’s right. Frisby testified that the car caved in on his left arm and leg and that he was unable to get out of the vehicle.
Frisby admitted that he carried mail in the front seat of his car during his route, but he stated that he did not look through the mail while driving due to the danger it would cause. Normally, he would operate the car while sitting in the middle, he said, and he would move back to the driver’s seat when there were longer distances between stops. He admitted that there was only one set of tracks in the road even though the road was wide enough for two cars to pass. He also admitted that at the time of the wreck, he and Agerton were both in those tracks, which, Frisby said, were on his side of the road. Frisby testified to injuries to both arms and his left leg and to cuts to his face and lost teeth. His injuries required surgery, and his medical expenses exceeded $63,000.
Colvin Reed “Billy” Agerton, who was driving the Agerton Logging truck at the time of the accident, testified that his son, Gary Agerton, runs the Agerton Logging Company. Billy Agerton, who was sixty-seven at time of trial, described how the wreck happened:
Well, as I was coming up — approaching the hill on the incline in the curve, I begin to move the log truck over to my side of the road. I was driving right down the middle of it . . . following the tracks in the road. It was about half on my side and half on his side.
As I pulled over to the right and got about halfway at the incline I seen Dewayne [Frisby] coming. At the best of my knowledge when I first seen him I might of been doing 40.
Agerton testified that he began to pull to the right because he could not see around the turn. He stated that he was approximately 150 feet away from Frisby when he first saw him and that he (Agerton) was on his side of the road. Frisby, he stated, was in the center of the road. Agerton testified that after he saw Frisby, he moved to the right as far as he could go. He testified that he saw Frisby looking to his right seat rather than at the road:
The minute he [Frisby] looked up and seen me he locked — he locked all four brakes up and pulled the wheel as far to the right as he could and he come into a slide across the road. As I looked back down to my left, the last time I looked back to see him, he was — I thought he was going under the trailer but he hit the back of the diesel tank and the back dual.
The collision occurred at the crown of the hill. Agerton testified that his front right wheel was already in the ditch at the time of the collision. The load shifted when the rear dual went off in the ditch, and the truck turned on its side. Agerton testified that the point of impact was in the middle of the road or slightly on his side.
John Bentley, an accident reconstructionist, testified on behalf of Agerton Logging. Bentley stated that he heard the testimony which had been presented on the second day of the trial. He opined, based on what he heard and other records examined, that Agerton “perceived and reacted early to avoid the collision.” It was also Bentley’s opinion that Frisby did not have an early perception or reaction to the oncoming vehicle. Because of the distance the truck traveled after the collision — about 30 feet — Bentley concluded that the tractor-trailer had reduced its speed considerably by time of impact. The 30-foot estimate he used came from the Motor Vehicle Traffic Accident Report filed by the deputy sheriff. Frisby objected to the reference to the 30-foot measurement and contended that this violated a pretrial order. Counsel for Agerton proposed that the trial court admonish the jury, but Frisby declined the offer of an admonishment.
At the request of Agerton Logging and over the objection of Frisby, the jury was read AMI 614, the sudden emergency instruction. The jury rendered verdicts on the complaint and counterclaim and, in effect, found neither Agerton Logging nor Frisby negligent on the respective claims.
Frisby raises three points on appeal, but it is the third point that we believe has merit. He contends that the trial court erred in giving the sudden-emergency instruction, AMI 614. That instruction reads:
A person who is suddenly and unexpectedly confronted with a danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.
AMI Civil 3rd 614 (1989). Frisby objected to the instruction because it had not been proven that Agerton Logging was free from negligence. In fact, Frisby testified that Agerton Logging was negligent in following the ruts in the middle of the road. At another point in his testimony, Frisby stated that the Agerton Logging truck was in his lane of traffic at the time of the collision.
In order to justify the use of the sudden-emergency instruction, the evidence must show that the driver was in a stressful situation which required a quick decision on the possible courses of conduct. That person must have been aware of the danger, perceived the emergency, and acted in accordance with the stress caused by the danger. Diemer v. Dischler, 313 Ark. 154, 158-59, 852 S.W.2d 793, 795-796 (1993). When there is any evidence of negligence oii the part of the party seeking to invoke the instruction, AMI 614 is inapplicable. Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994). Stated another way, when an emergency arises wholly or partially from the negligence of the person who seeks to invoke the sudden-emergency doctrine, AMI 614 has no application and should not be delivered to the jury. Id; Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995) (instruction proper where third-party driver encountered collision caused by others and did not in any way create the emergency himself).
The Druckenmiller v. Cluff holding decides the instant case. The sudden-emergency instruction is not appropriate when there are two parties to the action, each of which proves some fault on the part of the other. Such was the situation in the case at hand because there was testimony from Frisby that Billy Agerton was in the wrong lane. Hence, the instruction should not have been given. It added nothing to the comparative fault analysis and only injected confusion into complex proceedings.
Agerton Logging argues that the trial court was required to consider the evidence in the light most favorable to it because it requested the sudden emergency instruction. This is not correct. The trial court must assess whether any proof of negligence on the part of the party requesting the instruction exists. If so, the instruction is inappropriate. The giving of an erroneous instruction is presumptively prejudicial. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). Because of the error in giving the sudden-emergency instruction, we remand the case for a new trial.
Reversed and remanded.
Glaze, J., concurs. | [
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David Newbern, Justice.
This appeal is about whether land purchased by the appellees, James and Paula Miller and Scott E. Poynter, from the appellants, O.W. Ray and Neil Ray (the Rays), is burdened by a restriction preventing installation of “zero clearance fireplaces” in homes constructed by the Millers and Mr. Poynter. The Chancellor dismissed the Rays’ claim after hearing their case in chief. We affirm the decision.
The Rays developed a subdivision in phases. The Millers and Mr. Poynter purchased residential lots in phase II of the development. The convenances to them each included a bill of assurance which stated “all chimneys and foundations below siding shall be constructed with brick or stone.” It contained no reference to fireplaces.
The Millers and Mr. Poynter constructed homes with brick chimneys but used other than masonry materials inside the chimneys. Such construction was apparently made possible by the use of a metal insert fireplace box and a metal pipe or flue extended through the chimney. In his testimony Bill Ray referred to the construction used as “zero clearance fireplace.” He said he had informed the Millers and Mr. Poynter during construction of their homes that fireplace construction had to be all-masonry. Barry Gable, a contractor, testified he understood the fireplaces in the subdivison were to be all-masonry but he admitted his understanding was based upon provisions in covenants contained in instruments conveying lots in other phases of the subdivision. Harry Polovina, a resident of the subdivision, testified he understood the phase II bill of assurance meant all-masonry fireplaces even though there was no reference to fireplaces. A Mr. Hippie gave similar testimony.
1. Bill of assurance
In responding to the motion to dismiss, the Chancellor concluded there was nothing in the bill of assurance applicable to the Millers’ and Mr. Poynter’s lots which mentioned fireplaces or flues. Nor was there evidence that the chimneys were constructed of anything other than bricks and concrete blocks.
Courts do not favor restrictions upon the use of land, and if there is a restriction, it must be clearly apparent. Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984). See also Shermer v. Haynes, 248 Ark. 255, 451 S.W.2d 445 (1970). When the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, and it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction. Casebeer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970).
When there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint will be decreed. If there is any doubt, the covenants are to be construed strictly against those seeking to enforce them and liberally in favor of freedom in use of the land. Baldischwiler v. Atkins, 315 Ark. 32, 864 S.W.2d 853 (1993).
The Chancellor was undoubtedly correct in holding there was no written restriction preventing the construction in question.
2. General plan of development
The Rays contended their evidence was sufficient to show a general plan of development in the subdivision sufficient to bind the Millers and Mr. Poynter and prohibit the use of the zero clearance fireplaces.
Again in response to the motion to dismiss, the Chancellor found there was no substantial evidence of a general plan of development affecting the subdivision. Even if we could say there was substantial evidence of a general plan of development suggesting the homes built in the subdivision were not to have zero clearance fireplaces, the result reached was correct.
In Knowles v. Anderson, 307 Ark. 393, 821 S.W.2d 466 (1991), we pointed out that restrictive covenants must be in writing. See Ark. Code Ann. § 18-12-103 (1987). As to the effect of a general plan, we said:
As the Harbour [v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984)] opinion makes clear, it is proper to consider whether a general plan of development exists when determining whether a written covenant or restriction contained in the chain of title of the party seeking to avoid the restriction remains valid. We have no case in which a restriction has been created as the result of a general development scheme.
The Chancellor did not err in dismissing the Rays’ claim that a general plan of development had established the asserted restriction on the Millers’ and Mr. Poynter’s lots.
Affirmed.
Dudley, J., not participating. | [
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Donald L. Corbin, Justice.
Appellant, Robert Craig, appeals the order of the Washington County Circuit Court granting summary judgment to appellee, Mike Traylor, on appellant’s complaint for negligence. This appeal presents questions about the law of torts. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(16).
While employed by appellee, appellant injured his hand in a chain-and-sprocket mechanism of a fertilizer spreader owned by appellee. Appellant filed suit against appellee and the manufacturer of the spreader. The trial court entered an order granting summary judgment to appellee. That order is the sole subject of this appeal. Appellant’s remaining claims against the manufacturer were tried to a jury that found in favor of appellant. The manufacturer has appealed the judgment entered pursuant to the jury verdict but is not a party to this appeal.
For reversal of the summary judgment, appellant contends there are disputed questions of fact. Prior to addressing these arguments, we consider two jurisdictional arguments raised by appellee. First, we address appellee’s claim that appellant’s notice of appeal was untimely because a timely notice of appeal is essential to this court’s jurisdiction. Binns v. Heck, 322 Ark. 277, 908 S.W.2d 328 (1995); LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980) (per curiam). Second, we address appellee’s claim that the trial court lacked subject-matter jurisdiction to determine whether appellee was required to provide workers’ compensation coverage to appellant. When the trial court lacks subject-matter jurisdiction, the appellate court also lacks jurisdiction. Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995).
NOTICE OF APPEAL
On May 5, 1995, following the entry of the final judgment pursuant to the jury’s verdict, appellant filed a notice of appeal from the order entered April 21, 1995, that granted summary judgment to appellee. Appellee contends this notice of appeal was ineffective pursuant to Ark. R. App. P. Civ. 4(c) (1996) because it was filed prior to the filing and denial of the manufacturer’s motion for judgment notwithstanding the verdict. Rule 4(c) clearly provides that when any party files a specified post-trial motion, the time for appeal for all parties runs from the entry of the order disposing of the motion or from the deemed-denied date. Thus, according to Rule 4(c), it may well be that because appellant’s notice of appeal was filed prior to the disposition of the post-trial motion, it had no effect, and that appellant was required to file a new notice of appeal within thirty days of the trial court’s disposition of the motion or the deemed-denied date. However, we cannot determine if that is the situation here because the manufacturer’s post-trial motion and the trial court’s order, if any, disposing thereof are not included as part of the record in this case. This court does not consider matters outside the record. Widmer v. Widmer, 288 Ark. 381, 705 S.W.2d 878 (1986). On the record before us appellant’s notice of appeal was filed within thirty days of the final judgment and was therefore timely.
APPLICABILITY OF WORKERS’ COMPENSATION LAW
Should we decide the trial court erred in granting summary judgment, appellee requests that we provide guidance to the trial court on the matter of its “jurisdiction” to determine the applicability of the Workers’ Compensation Law, Ark. Code Ann. §§ 11-9-101 to -1001 (1987 and Supp. 1995), and the agricultural farm labor exception to the definition of “employment” in section 11-9-102(12)(A)(iii).
In his second amended and substituted complaint, appellant alleged appellee “was engaged in the business of selling, delivering and spreading fertilizers and manure in agriculture in Washington County, Arkansas.” Appellant also alleged that he was hired by appellee to operate certain spreaders used in appellee’s business and that appellee was an “employer” as that term is defined by the Workers’ Compensation Law and was therefore bound to provide compensation coverage to appellant. Appellant alleged further that appellee failed to provide such coverage.
Appellee denied that he was required to provide workers’ compensation coverage to appellant and moved to strike as impertinent and immaterial the portions of appellant’s complaint alleging to the contrary. Alternatively, appellee moved that appellant be required to elect between the remedies of filing a claim for workers’ compensation with the Workers’ Compensation Commission or pursuing a cause of action for tort in circuit court. The trial court denied both motions, and after a hearing on the question of whether it had jurisdiction to determine the application of the Workers’ Compensation Law to this case, entered an order concluding its jurisdiction of the coverage question was concurrent.
Appellee contends the Commission has exclusive jurisdiction to determine the applicability of the Workers’ Compensation Law and cites two sources of secondary authority addressing the question of whether the courts or the agency should determine the applicability of workers’ compensation laws to a given case. Daniel Keating, Employee Injury Cases: Should Courts or Boards Decide Whether Workers’ Compensation Laws Apply?, 53 U. Chi. L. Rev. 258 (1986); 2A Arthur Larson, The Law of Workmen’s Compensation § 67.60 (1995). Appellant does not respond to this argument. While both sources cited by appellee suggest that exclusive jurisdiction in the agency is superior to concurrent jurisdiction in the courts and agency, our cases suggest to the contrary. See, e.g., Lively v. Libbey Memorial Physical Medical Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507 (1994) (indicating that either the Workers’ Compensation Commission or the circuit court must determine the applicability of the Workers’ Compensation Law prior to the circuit court’s granting of summary judgment). Therefore, we conclude the trial court did not err in holding that it had concurrent jurisdiction to determine the applicability of the Workers’ Compensation Law.
We observe, however, that although the trial court ruled it had concurrent jurisdiction to determine the applicability of the Workers’ Compensation Law to this case, it never ruled whether the Workers’ Compensation Law did or did not apply to this case. The applicability issue was left unresolved below, and is therefore waived on appeal. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).
DISPUTED FACT QUESTIONS
Appellant raises only one point of appeal in his brief, that the trial court erred in granting summary judgment because there existed genuine issues of material fact relating to negligence and proximate causation. Specifically, appellant contends there were disputed facts relating to appellee’s failure to provide safe equipment as required by OSHA regulations, 29 C.F.R. § 1928.57, appellee’s failure to instruct on the proper procedures for cleaning and maintaining the spreader, appellee’s failure to warn of the dangers of the spreader, and whether appellant’s injuries were proximately caused by appellee’s alleged negligence.
In Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995), this court summarized its standards for summary-judgment review:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. . . .
Accordingly, it is the moving party who has the burden of presenting evidence to sustain a summary judgment, and ¿11 proof submitted must be viewed in the light most favorable to the opposing party. It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact.
Id. at 362, 908 S.W.2d at 656-57 (citations omitted).
Appellee moved for summary judgment without explanation, simply stating there were no disputed issues of fact and claiming entitlement to judgment as a matter of law. Attached to the motion was a portion of appellant’s deposition, wherein appellant stated that while the truck that housed the spreader was running, he noticed some chicken litter in and around the sprockets, that he thought the litter needed to be cleaned out, and that he stuck his hand in the sprocket area and began cleaning it when one of the sprockets caught his glove resulting in the injury to his hand. Appellant also stated that, because it was a “little bit safer,” he usually turned the truck off before he cleaned the sprocket area so that the chain and sprocket would not be moving, but that he left the truck running that day because there was still litter running out of the back of the truck bed. Also attached to appellee’s motion were his own affidavit and parts of his own deposition wherein he stated that while driving appellant to the hospital, appellant stated that he stuck his hand in the sprocket mechanism and that “[i]t was dumb.”
Appellant’s response to the motion included an affidavit from Dr. Albert L. Mink, an agricultural engineer from Arkansas State University. Dr. Mink averred that he was a certified OSHA instructor, that he had inspected the spreader that injured appellant, and that 29 C.F.R. § 1928.57 requires employers to protect employees from inadvertently coming in contact with hazards created by moving machinery parts on agricultural equipment, either by location or by installing and using a guard. Dr. Mink opined that appellee was in violation of 29 C.F.R. § 1928.57. Also attached to appellant’s response was a portion of appellee’s deposition wherein appellee stated that he did not remember instructing appellant on any cleaning procedures for the spreader except to “[j]ust [kjeeping, you know, the catwalks clean is basically what I told him.” Appellee stated that he did not give any instructions on general maintenance and service of the spreader. Appellee stated that he received an operations manual when he purchased the spreader but did not show it to his employees, nor did he ever show his employees any type of written instructions or warnings. Appellee stated there was no warning on the spreader about the danger of sticking a hand in the sprocket area.
The trial court granted summary judgment without explanation. The order stated simply that there was not sufficient evidence for a trier of fact to find that appellee was negligent or that his actions proximately caused appellant’s injury. Given the depositions attached to the motion and response, we find it is implicit in the trial court’s order that its resolution of this case was based solely on contributory negligence or comparative fault.
Under the comparative fault statute, there must be a determination of proximate cause before any fault can be assessed against a claiming party, and proximate cause is generally a question for the jury. Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994). Proximate cause becomes a question of law only if reasonable minds could not differ. Id. Proximate cause is defined as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Id. at 796, 888 S.W.2d at 305. Appellant presented some evidence that appellee failed to instruct appellant on operating and cleaning procedures for the spreader and that appellee failed to take steps to protect appellant from inadvertent contact with the sprocket mechanism as required by 29 C.F.R. § 1928.57. Reasonable minds could therefore differ as to whether appellee’s or appellant’s actions were the proximate cause in this case. In addition, violation of a safety statute is evidence of negligence to be considered by a jury, provided the violation is the proximate cause of the injury. Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995). Consequently, we conclude the trial court invaded the province of the jury, at least by resolving the proximate cause issue, and thereby erred in granting judgment as a matter of law. We therefore reverse the order granting summary judgment and remand for a new trial.
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Andree Layton Roaf, Justice.
The appellant, State of Arkansas, Child Support Enforcement Unit (CSEU), appeals from the denial of a new trial in a child support action in which the state was ordered to refund all child support paid by appellee Michael Phillippe, following a blood test which excluded him as father of the minor child for whom the support had been paid. The appellant asserts that the trial court abused its discretion in failing to grant the new trial and that the trial court lacked jurisdiction to award a judgment against the state. We reverse the award of refund.
On February 21, 1992, appellant, as assignee of Glenda Phillippe, an Aid for Families with Dependent Children (AFDC) recipient, filed a petition for child support alleging appellee was the father of Michael A. Phillippe, Jr., born on October 10, 1986. Appellee first answered pro se, admitting he was the father of the child and that he and the mother of the child, Glenda Phillippe, were married at the time. Appellee filed an amended answer through an attorney on August 10, 1992, denying that he was the biological father of Michael A. Phillippe, Jr., and demanded that a blood test be ordered by the court. The court entered an order for blood testing on September 29, 1992. On December 3, 1992, the trial court entered an order for support which recited that the defendant did not appear, although he was served with summons and his attorney had been notified of “this proceeding.”
On February 25, 1993, the appellee, through a new attorney, moved to set aside the support order, alleging that his previous attorney had failed to advise him of the order for blood test and the notice of hearing. The support order was not set aside and appellant continued to collect support payments from appellee. On September 16, 1993, the court again ordered genetic testing to be performed on the parties. On January 13, 1994, appellee petitioned the court to enter a finding of no paternity and asked that all child support payments, past and future, be abated and all payments made to the Child Support Enforcement Unit from February 25, 1993, be refunded to appellee, because the mother and minor child had refused to submit to paternity testing. The appellant CSEU obtained a contempt citation against the mother on June 8, 1994 for refusing to obey the order for blood testing, the test was subsequently performed, and DNA test results concluded that appellee could not be the biological father óf the child. The appellant CSEU then moved to dismiss the child support case against the appellee. The trial court dismissed the action against the appellee with prejudice and also ordered the appellant to refund all child support payments made by the appellee since November 22, 1992, in the sum of $5,939.00, plus clerk’s cost totaling $48.00 and court costs totaling $65.77.
The appellant moved for a new trial pursuant to A.R.C.P. Rule 59 on the basis that the order for refund was “contrary to the preponderance of the evidence as well as contrary to the law.” This motion was denied.
On appeal, the appellant raises two arguments. Appellant first contends that it was abuse of discretion for the trial court to deny its motion for new trial. Appellant argues that appellee and his original attorney caused the support order to be entered by default. Appellant also submits that Ark. Code Ann. § 9-10-115(d) (Repl. 1993), found in the chapter dealing with paternity actions, only allows the court to relieve appellee of future obligations of support. Appellant further contends that it was merely a “conduit” for the support payments, and that Glenda Phillippe received all of the funds as support or AFDC payments.
We first note that the abstract and record do not contain any transcripts of the hearings conducted in this matter. However, from the pleadings, blood test results, and orders contained in the abstract, it appears that the following facts are not in dispute. A default order of child support was entered when neither appellee nor his attorney appeared at trial; the default order found appellee to be the father of his wife’s minor child; appellant collected child support from appellee pursuant to the order until a court ordered paternity test revealed that he was not the biological father of his wife’s child; the trial court entered an order dismissing the support action with prejudice and requiring appellant to refund to appellee the support money it collected.
Furthermore, after entry of the order, appellant moved for a new trial pursuant to Ark. R. Civ. P. 59(a)(6), which provides in material part:
A new trial may be granted to all or any of the parties on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: . . . (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law. . . .
Arkansas Rule of Civil Procedure 59(f) further provides that “A motion for a new trial shall not be necessary to preserve for appeal an error which could be the basis for granting a new trial.” We can thus review the proceedings as abstracted to determine if the decision of the trial court is clearly contrary to the preponderance of the evidence or is contrary to law.
Appellant argues that this court should follow the law as set forth in Ark. Code Ann. § 9-10-115(d), Modification of orders or judgments, which states in pertinent part:
(a) The chancery court may, at any time, enlarge diminish, or vacate any such order of judgment in the proceedings under this section, except in regard to the issue of paternity, as justice may require and on such notice to the defendant as the court may prescribe.
(c)(1) Upon request for modification of the issue of paternity, if the court determines that the original finding of paternity did not include results of scientific paternity testing, consent of the natural parents, or was not entered upon any party’s failure to comply with scientific paternity testing ordered by the court, the court shall direct the biological mother, the child, and the adjudicated father to submit to one (1) or more blood tests or other scientific examinations or tests as provided by § 9-10-108.
(d) If the court determines, based upon the results of scientific testing, that the adjudicated father is not the biological father, the court shall relieve the adjudicated father of any future obligation of support.
(Emphasis added.) Appellant further argues that it was contrary to the law for the trial court to order all past child support under the judgment to be refunded, because Ark. Code Ann. § 9-10-115(d) allows only for relief of future support, and because the support had been properly paid by the appellee pursuant to a valid court order, and properly received and distributed by the State. We hold that the statute is applicable because, although appellant initially filed an action which only sought child support, the Phillippes were married, and the issue of paternity was raised by the appellee as a defense to the support action.
When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Arkansas Dep’t of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). Here, the statute plainly directs the court to relieve the alleged father of only future obligation of support.
Although we have not yet done so, other jurisdictions have considered the identical issue. In State v. Wilmore, 624 So.2d 30 (La. App. 1993), the defendant did not answer the petition for child support or otherwise appear, and a default judgment was entered declaring him the biological father of the minor child. The Louisiana Court of Appeals affirmed the lower court’s decision not to order reimbursement of child support paid by the defendant after a blood test determined that the defendant could not be the father of the minor child. The court reasoned that when the child support payments were made, they were legally owed under a valid final judgment and therefore did not have to be reimbursed.
We conclude that the order of refund was contrary to the preponderance of the evidence and contrary to the law. The trial court was not authorized to relieve the appellee of past support by the applicable statutes, which specifically set out the course of action the trial court shall take when an adjudicated father is later determined not to be the biological father.
Because we reverse on the denial of the motion for new trial, it is not necessary that we decide the appellant’s remaining argument raising the defense of sovereign immunity.
We reverse only that portion of the order of dismissal which provides that appellant refund the support payments and costs to appellee.
Dudley, Glaze, and Corbin, JJ., dissent.
We note that the legislature has clarified its intent that adjudications of paternity may be modified. See Act 1091 of 1995, codified in part at Ark. Code Ann. § 9-10-115(c)(2). | [
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Robert H. Dudley, Justice.
Appellant Alvis Jordan and co-defendant Cedric Harris were charged with capital murder for shooting and killing Broderick Shavis and with attempted capital murder for shooting and injuring Daniel Williams. Appellant and Harris were tried separately. Appellant was found guilty of second-degree murder for killing Broderick Shavis and guilty of attempted first-degree murder for shooting Daniel Williams. There was substantial evidence that appellant was guilty of both crimes. We affirm both judgments of conviction.
In his opening brief, appellant contends that the trial court erred in denying his motion for a directed verdict on the charge of attempted capital murder of Daniel Williams. He argues the required proof of his culpable mental state for attempted capital murder was lacking. We need not address the point in any detail. As appellee’s brief points out, the ruling could not have been prejudicial to appellant since he was not convicted of attempted capital murder, but rather was convicted only of a lesser-included offense, attempted first-degree murder. See Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). In his reply brief, appellant admits that he was not convicted of attempted capital murder and attempts to change his argument to one alleging error for failure to grant a directed verdict on the charge of first-degree murder. The attempt to change arguments is ineffective. We have long held that an argument cannot be raised for the first time in the reply brief. Partin v. Bar, 320 Ark. 37, 894 S.W.2d 906 (1995). As far back as 1919, we wrote: “If counsel should omit to argue any assignment of error in his original brief, such assignment must be treated as waived and abandoned by him unless permission to amend his brief is asked and granted by the court for good cause before the case is submitted.” Commonwealth Pub. Serv. Co. v. Lindsay, 139 Ark. 283, 293, 214 S.W. 9, 13 (1919).
As a sub-point appellant argues that the conviction for attempted first-degree murder of Daniel Williams should be reversed because it is inconsistent with the conviction of only second-degree murder for killing Broderick Shavis. While both Shavis and Williams were shot during the one episode, the argument is without merit. A jury may convict on some counts but not on others, and may convict in different degrees on some counts, because of compassion or compromise, and not solely because there was insufficient evidence of guilt. “Indeed, if the rule were otherwise, the State would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others — almost the opposite of the standard instructions, which is obviously beneficial to criminal defendants.” McVay v. State, 312 Ark. 73, 77, 847 S.W.2d 28, 30 (1993) (quoting United States v. Greene, 497 F.2d 1968 (7th Cir. 1974)). The law is clear in that “a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count. Res judicata concepts are not applicable to inconsistent verdicts; the jury is free to exercise its historic power of lenity if it believes that a conviction on one count would provide sufficient punishment.” Id. (quoting United States v. Romano, 879 F.2d 1056 (2d Cir. 1989)).
Appellant next contends that the trial court erred in denying his motion for a directed verdict for the second-degree murder of Broderick Shavis. He moved for a directed verdict on the capital murder charge for killing Broderick Shavis at the close of the State’s case on the ground that there was “insufficient evidence from which reasonable people could agree” that there was, among other things, “premeditation or deliberation.” The trial court denied the motion. Appellant then put on his case. At the close of his case, appellant moved for a directed verdict on capital murder and attempted capital murder and all lesser-included offenses on the ground that he had no intent to cause the death of either victim. The trial court denied the motion.
The argument is procedurally barred. Appellant’s motion at the close of the State’s case addressed only capital murder. Counsel stated that he “moved for a directed verdict on the charge of capital murder” and “that there was no intent to commit the death of' the individuals by either party when they went down there. There was no premeditation or deliberation.” The motion did not address second-degree murder either by name or by the culpability required for the crime. (Premeditation and deliberation are not required for second-degree murder. Instead, it requires proof that the actor engaged in conduct with the conscious object to produce death. See Ark. Code Ann. § 5-10-103 (a)(1) (Repl. 1993) and Original Commentary.) We have held that a defendant is required to address the lesser-included offenses in his motion for a directed verdict to preserve a challenge to the sufficiency of the evidence necessary to support a conviction for a lesser-included offense. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). Appellant’s failure to question the sufficiency of the evidence for lesser-included offenses, either by name or by apprising the trial court of the elements of the lesser-included offenses, at the close of the State’s case constituted a waiver of the argument.
Appellant’s third point of appeal is also procedurally barred. Before trial, appellant filed a motion to quash the jury panel. He did not bring the motion to the attention of the trial court, and he did not obtain a ruling on the motion. In fact, to the contrary, the trial court commenced the trial by asking both the State and appellant, “Is this a good jury?” and both responded affirmatively. In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).
Appellant’s next point of appeal concerns the State’s closing argument. The evidence tended to show that Broderick Shavis was struck by both a .25 caliber bullet and a .38 caliber bullet. Appellant contends the trial court erred in allowing the prosecutor to draw an improper inference from the evidence by stating “you can’t put a five-sixteenths bullet through that one-eighth, I mean one eighth hole.” He additionally argues that the prosecutor was erroneously allowed to .argue that victim Daniel Williams’ beeper could have been used in his job with a temporary agency. Appellant objected to the statements, but did not seek any relief other than a ruling on the objection.
The case of Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993) is directly in point. There, the defendant objected to arguments made by the prosecutor, but did not ask the trial court for any relief other than a ruling on his objection. We noted that the trial court gave a limiting instruction that counsel’s remarks were not evidence and should be disregarded if not supported by evidence. The trial court explained to the jurors that attorneys are given leeway in closing arguments and can make every argument that is plausible from the evidence. We said, “The trial court has a wide latitude of discretion in controlling the arguments of counsel, and its rulings in this regard are not overturned in the absence of clear abuse.” Id. at 371, 863 S.W.2d at 281 (citation omitted).
In the present case, appellant objected, but, just as in Littlepage v. State, did not ask for a limiting instruction or a mistrial. After the prosecutor’s argument about the size of the wounds the trial court gave a limiting instruction that closing arguments by counsel were not to be considered as evidence. The trial court did not give another limiting instruction after the argument about the beeper, but rather instructed the prosecutor to proceed, and the prosecutor did so without further mention of the beeper. Appellant did not ask any relief that was denied by the trial court, and there was no abuse of discretion in the rulings by the trial court.
Appellant next argues that the trial court erred in allowing the State to present rebuttal evidence during the sentencing phase of the trial. We addressed this issue in Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995), and held that a trial court has discretion to allow rebuttal evidence during the sentencing phase of the trial.
Appellant’s final point of appeal is that the trial court erred in allowing Kim Walker to identify him in court. The argument is devoid of merit. The day after the crimes, Kim Walker accurately described appellant and his clothing, described the co-defendant, and accurately picked appellant out of a photo lineup. At trial she testified that she observed appellant at the crime scene at close range under a street light and was certain of his identity, and identified him as the person who shot and killed Shavis. David Oliver, a police officer, testified without objection that, the day after the crime, Kim Walker identified appellant from a photo line-up as the one who shot Shavis. Wayne Sherrer testified that he has known appellant all of his life and that he saw appellant shoot Shavis. He also identified appellant in the courtroom. Cedric Harris, the co-defendant, testified that he was at the scene with appellant and appellant shot Shavis. Appellant took the stand and testified that he was at the crime scene and fired a pistol when Shavis was killed. He contended that he merely shot into the air while Harris shot and killed Shavis.
Identification simply was not an issue. Even if in some manner the trial court had erred in allowing Walker’s in-court identification of appellant, it would be harmless in light of the other identification testimony, especially since appellant testified in court that he was at the crime scene with a pistol.
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Donald L. Corbin, Justice.
Appellant, Courtney Carnell Guy, appeals the order of the Garland County Circuit Court denying his motion to transfer his case to juvenile court. This interlocutory appeal is authorized by statute, Ark. Code Ann. § 9-27-318(h) (Supp. 1995). Jurisdiction is therefore properly in this court. Ark. Sup. Ct. R. 1-2(a)(12). We find no error and affirm the denial of the motion to transfer.
Consistent with the discretion given in section 9-27-318(b)(1), appellant was charged by information in circuit court, along with two others, Jerry Burkes and Tarrel Macon, alleging that on June 8, 1995, they committed two counts of terroristic act in violation of Ark. Code Ann. § 5-13-310 (Repl. 1993) and one count of aggravated assault in violation of Ark. Code Ann. § 5-13-204 (Repl. 1993). Appellant was born September 28, 1978, and was therefore aged sixteen years at the time the crimes were alleged to have been committed. We recently affirmed the denial of Macon’s motion to transfer. Macon v. State, 323 Ark. 498, 915 S.W.2d 273 (1996). An affidavit of probable cause indicated that a total of six shots were fired with a weapon at two residences and one person outside one of the residences near a vehicle. The affidavit indicated that one bullet struck the driver’s door of the vehicle and another bullet entered the other residence, struck a metal object, and landed in the shirt collar of the resident. According to the affidavit, four spent .380-caliber casings were found in the street near the residences.
Appellant moved to transfer his case to juvenile court, and the circuit court held a hearing on the motion. Appellant presented no evidence or witnesses in support of his motion. The state called a single witness, Sharon Smith, a juvenile court intake officer who was familiar with appellant.
Smith testified that appellant had two prior adjudications in the juvenile system. In February 1992, appellant was charged with theft of property valued at less than $200.00; he was sentenced to a suspended term of ten days in jail, placed on probation, assessed costs, and ordered to twenty-five hours of community service. Appellant was discharged from that probation in September 1992. In February 1995, appellant was charged with criminal trespass; he was again given probation, assessed costs, and ordered to twenty-five hours community service. Smith stated that, according to her files, appellant had not yet completed the community service requirement.
Smith also testified, based on her experience, as to the possible punishments applicable to appellant’s current case. According to Smith, jail was not a viable option because Garland County did not have a juvenile detention facility. Smith stated that, if appellant were transferred to a juvenile detention facility in another county, the maximum time appellant would serve would be ninety days. Smith also mentioned the training school, but stated appellant would only be there for a short time also. The only long-term program of which Smith was aware was the serious offender program; she could not guarantee appellant would be accepted in that program if adjudicated delinquent on these charges, although she could recommend that program. Finally, Smith testified that, while appellant could remain under a juvenile court’s jurisdiction until aged twenty-one years, he could not be held in a juvenile facility past his eighteenth birthday on September 26, 1996.
On cross-examination, Smith opined that appellant’s previous adjudications were not for serious crimes. She also stated that, in addition to jail, the juvenile system had other options for appellant that had not yet been offered to him.
After the hearing, the trial court took the motion under advisement and later entered an order denying the motion. In deciding whether to transfer a case to juvenile court, the factors to be considered by the circuit court are the seriousness of the alleged offense and whether violence was involved, whether the alleged offense is part of a pattern of adjudicated offenses, and the prior history, character traits, mental maturity, and any other factors that reflect upon the juvenile’s prospects for rehabilitation. McGaughy v. State, 321 Ark. 537, 906 S.W.2d 671 (1995) (citing Myers v. State, 317 Ark. 70, 876 S.W.2d 246 (1994) and section 9-27-318(e)). Appellant, as the party seeking the transfer, has the burden of proving the transfer is warranted under section 9-27-318(e). Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). The circuit court is not required to give equal weight to each factor, nor is proof required to be presented with regard to each factor. McGaughy, 321 Ark. 537, 906 S.W.2d 671. However, if the circuit court decides to retain jurisdiction of the juvenile’s case, that decision must be supported by clear and convincing evidence. Section 9-27-318(f); Sebastian, 318 Ark. 494, 885 S.W.2d 882. Clear and convincing evidence is evidence of a degree that produces in the trier of fact a firm conviction as to the allegation sought to be established. Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996). This court will not reverse a circuit court’s decision to retain jurisdiction of a juvenile’s case unless that decision is clearly erroneous. Id.
Appellant does not seriously dispute that he was charged with serious offenses and that violence was involved, but contends that the trial court erred in failing to consider the remaining statutory factors. Specifically, appellant argues that because he had two prior adjudications for which he had only received probation, there were other punishments available to him within the juvenile system, and therefore it could not be said that he had little or no prospects for rehabilitation. Appellant contends he met his burden as the moving party through Smith’s testimony.
Appellant’s argument is without merit. This court has repeatedly held that the use of violence in committing a serious offense is a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile. Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993). The trial court’s order specifically found that the charges stemmed from a “drive-by” shooting in a residential neighborhood, that the charges were serious in nature, two of which were Class B felonies with a punishment range of five to twenty years each, and that violence was employed in the firing of a total of six .380-caliber rounds toward an individual and residence. It is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion. Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995) (citing Walter v. State, 317 Ark. 274, 878 S.W.2d 374 (1994)). Furthermore, no violence beyond that necessary to commit the offense charged is necessary. Cole, 323 Ark. 136, 913 S.W.2d 779. It is not apparent that the trial court failed to consider the remaining statutory factors. The order made findings with respect to appellant’s age and education level as well as his prior adjudications and punishments.
The circuit court’s order retaining jurisdiction is affirmed.
Dudley, Newbern, and Glaze, JJ., concur. | [
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David Newbern, Justice.
Barry Lynn Simpson pleaded guilty to the charge of first-degree murder in connection with the death of his father. In the sentencing phase of his trial, the State presented the testimony of members of the family concerning the effect the crime had upon them and their children. Mr. Simpson argues it was reversible error to have received the testimony because he was not notified that the witnesses would testify. We affirm the conviction because the issue presented on appeal was not presented to the Trial Court.
At the sentencing hearing, Mr. Simpson’s only argument was that the witnesses should not have been allowed to testify because their testimony was cumulative to evidence contained in the presentencing report. The point about lack of notice was not presented and is entirely different from the argument made to the Trial Court. If the ground of an objection is changed on appeal, the argument is considered to have been waived. Whitney v. Holland Retirement Ctr., 323 Ark. 16, 912 S.W.2d 427 (1996); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).
Affirmed. | [
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David Newbern, Justice.
The Benton County Circuit Court issued a writ of prohibition to the Rogers and Bentonville Municipal Courts. The writ prohibits those courts from trying various charges of statutory misdemeanors levied by citations issued by police officers to Shadrick W. Clardy, Edward Kaczorowski, Jane Schmeichel, Aaron R. Webb, Nathan Painter, and Billie W. Keene. The State appeals the order issuing the writ. We reverse the order and dismiss the case.
Each of the appellees was arrested for a statutory misdemeanor alleged to have been committed in Benton County but not within either the municipality of Bentonville or the municipality of Rogers, each of which is located in Benton County. Each of the appellees was ordered by citation to appear in either the Rogers or Bentonville Municipal Court. Upon consideration of each of the reasons given by the Trial Court and argued on appeal in favor of the writ, we conclude its issuance was unwarranted.
1. Venue
A writ of prohibition may issue if venue is improp erly laid. See Prairie Implement Co., Inc. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992); Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988). In the case now before us the Trial Court held, in effect, that venue would be improperly laid in any municipal court with respect to any offense alleged to have occurred outside the municipality served by the court. Proper venue is an issue not often litigated in criminal cases, except when a change of venue is at issue. The issue involved here, although it might understandably be referred to as one of venue because it deals with the place where a trial may be had, is more properly characterized as an issue of territorial jurisdiction.
If the allegation of a charging instrument were that an offense occurred outside the territorial jurisdiction of the court, then a judgment rendered by the court would be void. Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993); Williams v. Reutzel, 60 Ark. 155, 29 S.W. 374 (1895); RESTATEMENT (SECOND) OF JUDGMENTS § 4 (1982).
The law in this State is that a criminal trial must be held in the county in which the crime was committed, provided that venue may be changed, at the request of the accused, to another county in the judicial district in which the “indictment is found.” Ark. Const. art. 2, § 10; Waddle v. Sargent, supra. These authorities limit a circuit court to trying a criminal case in the county in which the crime was committed unless the accused requests the trial be moved to another county which, in any case, must be a part of the judicial district served by the court.
While our circuit courts are thus limited to trying accusations of crimes which occurred in the counties, or judicial districts, in which they sit, our municipal courts are not limited, either by our Constitution or by statute, to trying crimes which occurred in the cities in which they sit. To the contrary, our Constitution and Code both authorize a municipal court to assert limited subject-matter jurisdiction throughout the county in which it sits. Arkansas Code Ann. § 16-17-704(a)(2) (Repl. 1994) provides: “The municipal court shall have original jurisdiction, coextensive with the county wherein the court is situated over the following matters: . . . over misdemeanors committed within the county . . . .”
Arkansas Const, art. 7, § 43, provides:
Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law.
The General Assembly first conferred county-wide jurisdiction on municipal courts in Act 87 of 1915, § 10, which was promptly challenged in State v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915), as being in violation of the Arkansas Constitution. We held as follows:
No limitation is found in the Constitution upon the power of the Legislature to vest jurisdiction in municipal courts, when established, beyond the geographical limits of the municipalities. Nor can it be said that there exists any policy or sound reason for restricting the jurisdiction to such geographical limits. The authorities cited on the briefs of counsel do not sustain the contention that there is such an inherent limitation upon the power of municipal courts. Unless the organic law forbids, the Legislature may extend the jurisdiction beyond the territorial limits of the municipalities. The authority found in the Constitution is to vest jurisdiction in municipal courts “concurrent with the jurisdiction of justices of the peace in criminal and civil matters,” that is to say, concurrent with the jurisdiction which it is within the power of the Legislature to confer upon justices of the peace. The Constitution does not by its express terms restrict the jurisdiction of justices of the peace to the territorial limits of the township in which they are elected to serve, therefore the jurisdiction of municipal courts finds no such restriction in the Constitution. At the time of the adoption of the Constitution of 1874, corporation courts in cities of the first class exercised the same jurisdiction under statutes then in force as did justices of the peace . . . which thus extended the criminal jurisdiction to the territorial limits of the county, the same as that exercised by justices of the peace.
In Sexson v. Municipal Court of Springdale, 312 Ark. 261, 849 S.W.2d 468 (1993), a writ of prohibition was issued to prevent trial by the Springdale Municipal Court, which is situated in Washington County, of an offense alleged to have occurred in that part of Springdale which lies in Benton County.
Whether the issue be referred to as one of venue or territorial jurisdiction, nothing in our Constitution or Code dealing directly with the place in which misdemeanor charges must be tried limits it to the city in which the court sits. The territorial jurisdiction of municipal courts extends throughout the counties in which they sit.
2. Equal protection
A reason given for upholding the writ of prohibition is that to allow a municipal court to hear the case of an offense which occurred outside the limits of the city in which it is situated creates two classes of persons, one of which is denied its right to equal protection of the laws.
The State contends a general constitutional issue such as whether the prescription of jurisdiction for municipal courts violates the right to equal protection of the laws is not a proper subject for prohibition because the issue could be raised on appeal after objecting and moving to dismiss on that basis in a trial de novo in circuit court. With the possible exception of the venue issue, writs of prohibition are limited to cases in which a trial court purports to act without jurisdiction or in excess of its jurisdiction. Taylor v. Rogers, 298 Ark. 53, 764 S.W.2d 619 (1989); Municipal Court of Huntsville v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987).
Given our decision in the Griffin case, we are not so certain that one who is convicted in a municipal court can get the issue of equal protection to us on appeal after the mandatory appeal to a circuit court where the issue may “disappear.” We are sufficiently uncertain about it that we would be willing to consider the question now despite the fact that it might be possible to bring it before us on appeal of a de novo circuit court judgment resulting from a municipal court appeal. We cannot give it full consideration, however, due to the posture of the parties in this case.
The argument of Mr. Webb and the other appellees is stated as follows in their brief:
In order to be considered a candidate for municipal judge, one must be “an elector of the judicial subdivision wherein the court sits.” Ark. Code Ann. § 16-17-209(a) (Repl. 1994). That is, one who is not a resident of Bentonville, for example, may not be a candidate in the election for judge of the Bentonville Municipal Court. Additionally, one who does not reside in Bentonville, for example, may not vote in the election of Bentonville’s municipal judge. The result of this system is that persons not residing in a city having a municipal court are effectively denied equal protection and due process of law under both the United States and Arkansas Constitutions.
The argument would seem to be that these appellees would somehow be prejudiced if they were to be tried in a court they could not help elect. That argument is answered easily by pointing out that the jurisdiction of the courts in criminal cases is based on the territory in which crimes are committed and not on the residence or voting privileges of the persons who commit the crimes.
There might be a legitimate equal protection argument to be raised, but it has not been made here. The argument might be that one class is composed of the residents of the city who are enfranchised to elect the municipal judge; the other is composed of the other residents of the county who are not so enfranchised. Misdemeanors committed in the part of a county lying outside any city may, in our system, be adjudicated by a court not elected by the residents of the place where the crime allegedly occurred. It might be argued that citizens have a right to elect the person who tries the cases which arise in the territory in which they reside. Such a class of persons is obviously not contemplated in this case and is not present. Two of the appellees are residents of Bentonville, and one is a resident of another state.
Such an argument, if made, would be faced with the hurdle of Holt Civil Club v. City of Tuscaloosa, 439 U.S. 60 (1978), in which the United States Supreme Court held that an Alabama law permitting cities to impose police regulations, including municipal court jurisdiction, three miles beyond city limits did not violate the right of equal protection of the laws accorded to the citizens residing in the three-mile area.
Lying beneath the challenge to county-wide jurisdiction of municipal courts, and mentioned in the appellees’ brief, is the specter of improper forum shopping and perhaps some corruption in the process of selecting the municipal court in which a misdemeanor alleged to have occurred outside city limits might be tried. That was the allegation in Griffin v. State, supra, and in Pschier v. State, 297 Ark. 206, 760 S.W.2d 858 (1988). In those cases it was alleged that the offenses were committed near one municipality but the defendants were inexplicably cited to appear in a municipal court serving a city some distance away from the place in the county where the offense was committed. We were unable to reach that issue because, by the time the cases reached us, they had been the subjects of de novo trials in a circuit court where the argument did not apply.
In the case now before us, none of the parties who sought the writ alleged that he or she was being hailed into a court which was not the nearest to the place where the offense occurred. The State, referring to the dissenting opinion of Justice Hickman in the Griffin case, concedes that there may be good reasons for objecting to a system which might permit improper forum shopping, but that none of them amounts to a constitutional basis for holding a municipal court lacks jurisdiction of misdemeanors committed in the county in which it sits but beyond the limits of the city in which it is situated.
3. Jury trial
One accused of a crime in this State has a right to a trial by jury, Ark. Const. art. 2, § 7; Ark Code Ann. 16-89-107(b)(1) (1987); Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975); however, “There shall be no jury trials in municipal court. In order that the right of trial by jury remains inviolate, all appeals from judgment in municipal court shall be de novo to zzzcircuit court.” Arkansas Code Ann. § 16-17-703 (Repl. 1994). There is thus a “two-tier” system for an accused misdemeanant who wishes a jury trial.
In his ruling from the bench, the Trial Court remarked about the problems of extra costs in a second trial, the extra effort to which a defendant has to expend to obtain a trial by jury in a circuit court after conviction in a municipal court, and the possible embarrassment to be suffered by one who pleads guilty in a municipal court just to expedite obtaining the right to a jury trial in a circuit court.
The two-tier system of providing a trial by jury for accused misdemeanants has withstood constitutional scrutiny in both the United States Supreme Court, Ludwig v. Massachusetts, 427 U.S. 618 (1976), and this Court. State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995). The arguments being made in this case have been considered previously, and in any event, they are of the sort which do not challenge the jurisdiction of the municipal courts and which could indeed be raised on appeal.
Reversed and dismissed.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING FEBRUARY 26, 1996
Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellant.
Samuel M. Reeves and Tom C. Morris, III, for appellees.
David Newbern, Justice.
The appellees’ petition for rehearing asserts that the Court’s opinion in this case erred in its somewhat gratuitous explanation about how a proper equal protection argument might have been, but was not, presented. The error alleged is that we overlooked the fact that some of the appellees were residents of Benton County but not of the cities which proposed to prosecute them. That is not so.
The argument that the three appellees who were residents of Benton County but not of Bentonville or Rogers were denied equal protection of the laws was answered in the Court’s opinion by pointing out that the jurisdiction of a court with respect to a criminal offense has necessarily to do with the place in which the crime is alleged to have been committed rather than the residence of the defendant. It would be ludicrous to hold that a class of persons consisting of defendants not enfranchised to elect the judge was being denied equal protection of the laws. We pointed out that it was apparently not the intention of the appellees to assert they constituted such a class, as two of them were residents of Bentonville and one was from another state.
The point of the additional explanation, apparently missed by the appellees and certainly missed by the concurring opinion, is that a good equal protection question might have been raised by an “argument . . . that one class is composed of the residents of the city who are enfranchised to elect the municipal judge; the other . . . composed of the other residents of the county who are not so enfranchised. [Emphasis supplied.]” The question would be whether persons residing in the county, but not in a city served by a municipal court, would be entitled to have allegations of criminal conduct occurring in their locality adjudicated by a court elected by them as opposed to a court elected solely by residents of a city.
We did not misunderstand the argument presented by the appellees nor were any asserted facts overlooked in our deliberation and resolution of this case. The petition for rehearing is, therefore, denied.
Glaze, J., concurs. | [
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Donald Corbin, Justice.
Appellant, Bob Solomon, appeals the judgment of the Pope County Circuit Court convicting him of the first-degree murder of his spouse, Janice Solomon, and sentencing him to imprisonment for forty years. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant admitted that he shot the victim, but argued that the shooting was accidental. Appellant raises five arguments for reversal, among them that it was error for the trial court to refuse to exclude three of the state’s witnesses from the courtroom pursuant to the witness-sequestration rule, Ark. R. Evid. 615. We agree and reverse for a new trial. We find appellant’s other arguments are meritless, but discuss them for the benefit of the trial court upon retrial.
Witness-sequestration rule
At the commencement of the trial, the trial court ruled that state’s witnesses, Jennifer Patty, Peggy Barker, and Teresa Patty, the victim’s daughters, could remain in the courtroom despite appellant’s invocation of the witness-sequestration rule. Rule 615. The trial court stated that the victim’s daughters were exempted from the witness-sequestration rule by Ark. R. Evid. 616, which provides that the victim of the crime, as well as the parent, guardian or custodian of a minor victim, has the right to be present during the trial notwithstanding Rule 615. As the state concedes, the trial court ruled in error since none of the victim’s daughters was the victim of the murder and no minor victim was involved. See Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).
The state argues that the trial court’s error does not warrant reversal, however, because appellant has failed to demonstrate prejudice. Appellant argues he was prejudiced by the fact that the victim’s daughters were allowed to listen to the other testimony, thereby allowing them a clear opportunity to shape their testimonies to match the other witnesses. Prejudice is not presumed and we do not reverse absent a showing of prejudice. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995); Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).
Rule 615 expressly provides that “the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses[.]” We have stated that the purpose of Rule 615 is to expose inconsistencies in the testimonies of different witnesses and “ ‘to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.’ ” King, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (quoting Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985)). The state called thirteen witnesses in all, six of whom testified prior to the victim’s daughters. The victim’s daughters were not recalled to the stand.
Briefly summarized, the testimony of the state’s six witnesses who testified before the victim’s daughters is as follows. Attorney William F. Smith first testified that the victim was his former client, that part of his practice consisted of divorce cases, and that, approximately one month prior to the shooting, the victim inquired about his retainer for a divorce action and stated that she might be coming to see him. The next four witnesses, Nurses Paula McAlister and Becky McCain and Drs. Roxanne Marshall and Charles Woodrow Jones, Jr., each testified to attending the victim at St. Mary’s Hospital emergency room in Russellville, where the victim was taken by appellant after the shooting. The sum of these witnesses’ testimonies was that the victim was alert and that she stated that she and her husband had argued about a divorce, that her husband had shot her, and that it was no accident. Nurse McAlister also testified that the victim stated that she wanted to see her daughters. The state’s sixth witness, Dr. Mark Myers, testified as to the details of the victim’s gunshot injury which he observed as he performed surgery on the victim at St. Mary’s. The victim died during the surgery.
Jennifer Patty, the victim’s twenty-two-year-old daughter, next testified that she went to the emergency room because appellant called and told her that she was needed there, and that he and the victim were out target shooting when the victim stepped in the way and he shot her. Ms. Patty testified that her sister, Peggy, met her at the emergency room later on, and that they went to the waiting room where they found appellant. Ms. Patty testified that she heard appellant tell Pope County Sheriff Jay Winters in the waiting room that he had told the victim he was “gonna blow her head off.”
Peggy Barker, the victim’s eldest daughter, next testified that when she went to the emergency room one of the nurses let her see the victim. Ms. Barker stated that the victim took her hand and told her to “tell them” that she and appellant had been arguing and that appellant had shot her on purpose. Ms. Barker testified that she remembered talking to Pope County Sheriffs Office Investigator James Hardy after the shooting and telling him that the victim had told her that appellant had shot her on purpose. Ms. Barker testified that appellant had told her that he had argued with the victim over a credit problem. Ms. Barker testified that she never told appellant’s counsel that she knew appellant would not intentionally kill the victim. Ms. Barker also testified as regards numerous other matters that were not addressed by any witness who testified before her.
Teresa Patty, the victim’s twenty-three-year-old daughter, next testified that, shortly after the shooting, appellant told her that he and the victim were arguing about a credit problem, that he got out the gun, that they were “arguing over the gun,” and that he shot her, but had not meant to. Ms. Patty testified that she was the closest of her sisters to appellant. Ms. Patty’s testimony did not reveal whether she was present at St. Mary’s Hospital on the day of the shooting.
We find appellant has demonstrated prejudice. This case was decided by the jury upon the conflicting testimonies presented as regards the issue of appellant’s intent when he shot the victim. It illustrates the need for the witness-exclusion rule to prevent the possibility of any of the victim’s daughters from shaping her testimony to that of a preceding witness. King, 322 Ark. 51, 907 S.W.2d 127; see also Fite, 13 Ark. App. 213, 682 S.W.2d 457 (decided under the presumed-prejudice rule of law).
Accordingly, we reverse the judgment of conviction and remand for a new trial. The following points of asserted error are addressed since they are likely to arise on retrial.
Sufficiency of evidence of intent
Appellant argues that the evidence was insufficient to prove that he acted with the purpose of causing the victim’s death. In determining whether there is substantial evidence, we review the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id.
Appellant testified that he shot the victim as they were driv ing in their 1984 Ford pickup truck on a state highway near Moreland on the afternoon of July 17, 1993. The evidence showed that appellant and the victim were seated as driver and passenger, respectively, when appellant fired a single bullet into the victim’s chest with a Smith and Wesson semi-automatic nine millimeter caliber firearm. Appellant testified that, at the time of the shooting, he and the victim were arguing about a credit problem, that the victim had become very upset, and, that, with one hand, he retrieved the weapon, which he knew to be loaded, from the console between their seats to put the weapon beyond the victim’s reach. Appellant testified that the victim simultaneously grabbed the weapon’s barrel and it accidentally discharged. As noted above, appellant’s story was contradicted by the testimony of the victim’s emergency-room health-care providers who stated that she told them that appellant shot her on purpose.
Resolution of the conflicting versions of these facts rested with the jury. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978). Clearly, the jury did not believe appellant’s version. There is substantial evidence to support the conviction for first-degree murder.
Prior bad acts of the victim
Appellant also argues that proffered evidence of the victim’s character, by testimony of specific instances of her prior violent conduct toward him, was erroneously excluded. Our review is limited to the proffered cross-examination testimony of state’s witness, Sheriff Winters, that he heard appellant tell another law enforcement officer that the victim had pulled a gun on him during their previous arguments and, once, had gotten mad and almost shot off his ear. Ark. R. Evid. 103; Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). Appellant asserts the excluded testimony was relevant to his defense of accident. Because appellant’s defense was accident, rather than self-defense, the trial court excluded testimony of the victim’s prior bad acts. Appellant argues that the proffered testimony was admissible as evidence of a pertinent trait of the victim’s character, in light of his defense of accident, pursuant to Ark. R. Evid. 404(a), and as evidence of other acts by the victim that were relevant to proof of his intent on the day of the shooting, pursuant to Ark. R. Evid. 404(b). We need not address this argument on its merits. Even assuming Sheriff Winters’s excluded evidence was admissible under Rule 404, it was not admissible under Ark. R. Evid. 405, which governs methods of proving character.
Rule 405 generally limits proof of character to reputation or opinion testimony. However, pursuant to Rule 405(a), a character witness may testify on cross-examination as to relevant specific instances of conduct. Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986). The abstract, however, reveals no evidence from Sheriff Winters, on direct examination, regarding the victim’s character. Hence, the proffered evidence was not admissible under Rule 405(a) as it was beyond the scope of cross-examination. Ark. R. Evid. 611.
Rule 405(b) also permits proof of character by specific instances of conduct in cases in which character or a trait of character is an essential element of a charge, claim or defense. Such a character trait must be “an operative fact which under substantive law determines the rights and liabilities of the parties.” McClellan v. State, 264 Ark. 223, 226, 570 S.W.2d 278, 280 (1978). Appellant does not satisfy this standard because the victim’s violent character was not an essential element of the murder charge or of his defense of accident. As the trial court correctly ruled, had appellant’s defense been self-defense, the result might have been otherwise. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991). Appellant sought to use the proffered testimony circumstantially rather than as a direct substantive issue, and, therefore, it was not admissible under Rule 405(b). McClellan, 264 Ark. 223, 570 S.W.2d 278.
Suppression of appellant’s pre-arrest statement
Sheriff Winters testified: “[Appellant] said that he pointed the gun at her and said, ‘I’m going to blow your head off; but that he didn’t mean it and that the gun just went off.” Appellant argues his statement should have been suppressed because it was given before the Miranda warnings were administered. The trial court ruled that the testimony was admissible because appellant’s statement was voluntarily given under circumstances that did not constitute a custodial situation that required prior Miranda warnings.
Appellant testified that he did not make the challenged statement.
The Miranda warnings were intended to inhibit abuse of the federal constitutional Fifth Amendment right against self-incrimination of a person by reason of custodial interrogation by law enforcement officers. Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995). “In custody” means a person who is deprived of his freedom of action by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Id. In resolving the question of whether a suspect was in custody at a particular time, the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995).
On appeal, we make an independent determination of the voluntariness of a confession. Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995). We do not reverse the trial court, absent a finding of clear error, recognizing that conflicts in the testimony are for the trial court to resolve. Id. Here, the record shows that appellant made the challenged pre-arrest statement in the hospital’s waiting room after Winters had twice advised appellant that he was not there to take any statements and just wanted to locate and secure the weapon, and that, after the challenged statement was made, Winters left appellant unattended in the waiting room to locate the weapon, then returned to appellant in the waiting room approximately ten minutes later and verbally advised appellant of his Miranda rights. On these facts, we are not persuaded that the trial judge’s ruling was clearly against the preponderance of the evidence.
Mistrial
Appellant argues it was error to refuse his three motions for mistrial based upon the emotional displays of the victim’s daughters in the presence of the jury. The first two motions related to incidents that occurred because of the Rule 615 violation and therefore will not arise on retrial.
The third motion was made on the third day of trial, during an in-camera proceeding that was conducted when the court reconvened following its lunch break after closing arguments. Appellant moved for a mistrial on the ground that the victim’s daughters had approached the jury in close proximity as they were escorted by the bailiff from the courthouse to a van to conduct them to lunch, and had created a scene by screaming “I want my momma” and crying. The bailiff, when questioned by the trial court, corroborated appellant’s description of the scene. The bailiff also stated that he had seen no one trying to speak to the jury and that he had hurried the jury into the van. The bailiff stated that he had not seen the victim’s family at the scene of the disruption before, but had seen appellant’s family there every morning. The trial judge denied the motion, but stated that he would admonish the families not to engage in similar displays.
Appellant then informed the trial judge that two or three other bystanders, including Mr. John Lynch, who were friends and relatives of appellant, had observed the lunch scene and would testify in accordance with the bailiff. Subsequently, appellant filed a motion for a new trial and attached Mr. Lynch’s affidavit that he had observed two of the victim’s daughters “laughing and snickering and making light of the situation” after the bailiff had left with the jury.
We have held that emotional outbursts by the relatives of murder victims are not unusual and are difficult to control. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). The trial court exercises a wide latitude of discretion in the control of the trial and resorts to the drastic remedy of a mistrial as a last resort. Id. The record, as abstracted, fails to show that appellant obtained any cautionary instruction to the jury. The only indication that the emotional display was extreme or was orchestrated was Mr. Lynch’s affidavit. Clearly, the trial judge was in a superior position to evaluate the prejudicial effect of the display upon the jury and to evaluate the credibility of the witnesses, including Mr. Lynch, regarding the lunchtime incident. We conclude no abuse of discretion was committed by the trial court in denying appellant’s third motion for mistrial.
The judgment is reversed on the basis of the Rule 615 violation and remanded for retrial. | [
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David Newbern, Justice.
The appellant, Larry Hamilton, sought certification of a class consisting of Pulaski County taxpayers. His claim against the appellees, Pulaski County Judge Floyd G. “Buddy” Villines, III, and the members of the Pulaski County Quorum Court, is of an illegal exaction. We will refer to the appellees collectively as “Pulaski County.” The illegal exaction claim, brought under Ark. Const, art. 16, § 13, is that the County misapplied sales and use tax proceeds and other funds in the construction of the Pulaski County Regional Detention Facility. This is an appeal of one aspect of the Chancellor’s order certifying a class for an action to be brought in accordance with Ark. R. Civ. P. 23. It is an interlocutory appeal. See Ark. R. App. P. 2(a)(9).
Mr. Hamilton’s complaint seeks no refund to the taxpayers but requests primarily injunctive relief requiring the transfer of funds within the County coffers to keep the money from being misapplied. The Chancellor granted the class certification and required individual notices to the taxpayers in accordance with Ark. R. Civ. P. 23(c) because “monetary relief” was being sought in the form of attorney’s fees. The appeal is from the notice requirement imposed by the Chancellor’s order. We agree that the notice requirement was improper, so we reverse and remand the case.
In City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), an illegal exaction case, we said the Court should have required the parties to abide by Rule 23 because an illegal-exaction claim is in the nature of a class action but that the failure to have imposed the requirements of the rule resulted in no prejudice in the circumstances of that case and was thus harmless error. In Union Nat’l. Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992), Glaze, J., concurring, it was suggested that our statement with respect to Rule 23 in the Cash case was but an obiter dictum, that illegal exaction claims had, as an historical proposition, not been governed by the restrictions imposed on class actions, and that illegal exaction claims should not be subject to Rule 23.
Rule 23(c), in part, provides, “In any class action in which monetary relief is sought, including actions for damages and restitution, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” In arguments before the Chancellor and before this Court the focus has been upon whether Rule 23 should apply to illegal exaction suits brought pursuant to article 16, § 13, and if so, whether a request for attorney’s fees is a request for “monetary relief,” thus implicating Rule 23(c).
As Pulaski County points out in its brief, Ark. Code Ann. § 26-35-902(a) (Supp. 1995) permits the award of attorney’s fees from funds recovered when an illegal exaction is held to have occurred and a “refund” is ordered to the taxpayers; however, the statute does not address attorney’s fees in a case in which no refund is sought. Attorney’s fees may not be recovered absent a statute or rule permitting such a recovery. Wynn v. Remet, 321 Ark. 227, 902 S.W.2d 213 (1995); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991). In Munson v. Abbott et al., 269 Ark. 441, 602 S.W.2d 649 (1980), and again in City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986), we specifically held that attorney’s fees are not to be allowed in an illegal exaction case in which no refund is sought. During oral argument, counsel for Pulaski County reaffirmed his posi tion that there is no authority to award attorney’s fees in this case.
When questioned about authority for the granting of attorney’s fees in a case like this one, Mr. Hamilton’s counsel could only reply that fees might be available if the class were able to prove a fact Pulaski County had refused to admit in response to a request for admission. Presumably he was referring to Ark. R. Civ. P. 37(c) and the sanctions provided for failure to admit. We can hardly say that reference to a sanction which may or may not become necessary amounts to a request for “monetary relief” by a class as contemplated in Rule 23(c).
Apparently Pulaski County recognizes the infirmity of the Chancellor’s order caused by the fact that recovery of attorney’s fees is not available to Mr. Hamilton and the class. Pulaski County, therefore, asks that we affirm the order requiring notice to individual taxpayers because taxpayers should have notice of this lawsuit, which will cause a “detriment” and cost to the County. No authority is cited for that position, and we are not convinced by the argument. The purpose of requiring notice to class members who may have a monetary recovery in prospect is to allow them to decide whether to participate as members of the class. In a case in which a prospective class member has no individual claim to relief, there is no purpose in the notice requirement that would not obtain anytime a city or county is sued. We can assuredly say it is not the purpose of Rule 23(c) to require notice anytime a suit is brought against a public entity in which a “detriment” to it may occur.
The issue whether Rule 23 applies to illegal exaction claims is not before us. Both parties argue from the position that it does apply. We do not decide that issue. The issue we do decide is whether, assuming the Rule applies, it was proper for the Chancellor to hold that “monetary relief” was in prospect and thus Rule 23(c) required individual notice to the taxpayers. We need not, however, go so far as to decide whether attorney’s fees constitute “monetary relief” because we simply cannot ignore the fact that attorney’s fees are not to be recovered in this case. The General Assembly may wish to extend the language of § 26-35-902 to make some provision for attorney’s fees to encourage citizens to point out illegal exactions even though no refund is to be had. We may not do so.
Reversed and remanded.
Special Justice Edmund M. Massey joins the opinion.
Corbin, J., not participating. | [
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David Newbern, Justice.
Willie Earl Jones was convicted of five drug-related offenses and sentenced as an habitual criminal with four or more prior offenses to 37 years imprisonment. We reversed the conviction. Jones v. State, 317 Ark. 587, 880 S.W.2d 522 (1994). Upon retrial Mr. Jones was again convicted on five counts and sentenced to life imprisonment. Mr. Jones appeals only from one delivery count. He contends the evidence is insufficient because the State failed to prove drugs were delivered by him in exchange for money or something of value. We hold the evidence was sufficient and affirm.
In December 1992 Mr. Jones was the focus of an undercover investigation being conducted by the Pulaski County Drug Task Force. Detective Vickie Beaty-Lawson and a confidential informant were sent to a house occupied by Mr. Jones to purchase crack cocaine from him. The second of several such encounters occurred on December 7, 1992. Detective BeatyLawson testified that on that occasion she and the informant went to Mr. Jones’s residence where they were greeted by him and asked what they needed. She said they had $60. Mr. Jones gave two “large rocks” to the informant who handed them to her. She said she handed the informant the money in Mr. Jones’s presence. Mr. Jones correctly contends there is no evidence that the money was then handed to him.
The penalty for delivery of a Schedule I drug, such a cocaine, is prescribed by Ark. Code Ann. § 5-64-701(a) (Repl. 1993). Subsection (b) of the statute defines “delivery” as follows:
For the purposes of this section, the term “delivery” means the actual or attempted transfer from one person to another of a controlled substance. . .in exchange for money or anything of value, whether or not there is an agency relationship.
As we explained in Anderson v. State, 275 Ark. 298, 630 S.W.2d 23 (1982), followed by Marshall v. State, 289 Ark. 462, 712 S.W.2d 894 (1986), by stating “attempted transfer” as part of the definition of “delivery,” the General Assembly made it unnecessary to show an “exchange for money or anything of value” in order to prove a delivery.
There was ample evidence that Mr. Jones at least attempted to transfer cocaine to another in exchange for money.
The record has been examined in accordance with Ark. R. Sup. Ct. 4-3(h), and no errors requiring reversal have been found.
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Bradley D. Jesson, Chief Justice.
The appellant, Billy Pike, was convicted of the capital murder of Sunday Stanfield and sentenced to life imprisonment without parole. His sole point on appeal is a challenge to the sufficiency of the evidence. We affirm.
On appeal, Pike raises specific points in support of his position that the State’s evidence was insufficient to convict him of the capital murder charge. He argues that the State’s evidence failed to exclude the substantial possibility that another man, Bobby Chappie, killed the victim. He also contends that a certified docket sheet admitted into evidence proved that Michelle Basey, the State’s eyewitness, was in custody at the time she claimed to have witnessed the murder. Finally, he maintains that there was insufficient evidence presented that he killed the victim. In reviewing the motions for directed verdict that Pike made below, we conclude that only the last of these specific points was preserved for our review. At the close of the State’s case, counsel for Pike stated as follows:
We’ll move for a directed verdict. Notwithstanding the credibility of some of the State’s witnesses, Your Honor, I don’t believe the State has shown sufficient evidence to show any kind of premeditated or deliberated purpose on the part of [Pike]. I guess, taking Miss Basey’s testimony in the best light, at the very most we have from Miss Basey that she was in the basement with one shot, one shot that she testified to. She did not see Sunday Stanfield fall or have impact from, but she was standing right up in front of Billy Pike. And that was the only shot that she saw fired. She testified that she could not even tell us that it had hit its target, and then that she left that basement, and she heard one more shot. Other than that, we don’t have anything causally connecting any incident or anything that Billy Pike did here. At the very most we got one shot that the State’s best witness cannot say had any impact at all. So we don’t even know if he shot her from what the State’s presented today or presented in their case in chief.
(Following the deputy prosecutor’s response, counsel for Pike continued as follows:
Your Honor, taking the State’s case in its best light, I only recall hearing one shot after she left that basement. State says well, that obviously they had a third shot. They’re speculating at best in regards to what had happened. The testimony of Miss Basey was Miss Stanfield was standing straight up, looking at him when he shot her in the head. There’s no consistency with that testimony, and the testimony of the medical examiner was that she was shot two times behind the left ear. That is absolutely inconsistent with that testimony at all. She testified she didn’t know what happened after she left that basement, and none of us know what happened after she left that basement. What the State has presented is that they’ve got a body in a basement. They’ve got what they think is the killer down there. They have him maybe firing a gun at the person, but not in the right direction that the medical testimony states, and that’s it. And they want this Court to take all of that, and swallow it and say well, then, he must have been, only fired three times at her. And taking it, the inconsistencies in that testimony, it must have been four times, because the first' one he shot when she was standing straight up, and he couldn’t have physically have done what the medical examiner says happened, strike her two times behind the left ear.
At the close of all the evidence, Pike renewed his motion as follows:
I don’t believe the State has shown any premeditated or deliberated purpose. Here at best, taking the testimony, what we would believe at this point, would be an incredible not a credible witness, that being the testimony of Miss Basey based upon the evidence, both in the State’s case and in the Defense’s case. Taking that evidence in its best light, Miss Basey said that she saw one shot, That Miss Stanfield was standing straight up, looking at Mr. Pike at the time a shot was fired. The testimony of the medical examiner was clearly that the weapon, the bullets hit her in the back of the head, and that Miss Basey left out after one shot had been fired. And her testimony was she heard one more shot. She doesn’t know anything about if it was at anybody or not at anybody, but that there is insufficient evidence to show that there’s any evidence to show that Mr. Pike killed this woman with any nature, premeditated or anything.
It is well-settled that parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995). This is true even in cases where the sentence is life without parole, as our duty is only to examine the record for error on objections decided adversely to the appellant, not to address arguments that might have been made. Childress v. State, supra; see also Ark. Sup. Ct. R. 4-3(h). Nowhere in Pike’s motions for directed verdict did he mention Bobby Chappie’s name, much less an argument that the State’s proof failed to exclude the reasonable hypothesis that Chappie killed the victim. Nor did Pike present the argument that the certified docket sheet admitted into evidence proved that Michelle Basey was in custody at the time she claimed to have witnessed the murder. Thus, the only point we will consider is whether the State presented sufficient evidence that Pike committed the murder.
We have recently repeated our guidelines for reviewing challenges to the sufficiency of the evidence in Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995):
In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction. Id.
322 Ark. at 654, 910 S.W.2d at 686. Circumstantial evidence may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 560 (1992); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Id; see also Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995); Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993).
The evidence, viewed in the light most favorable to the State, is as follows. On the morning of Tuesday, March 15, 1994, Bruce Stanfield found the body of his sister, Sunday Stan-field, in the basement of their mother’s home at 1228 West 35th Street in Little Rock. The basement, according to Bruce, was a hideaway where he and others in the neighborhood smoked crack cocaine. Ollie Stanfield, the victim’s mother, last saw her daughter around noon on Sunday, March 13. Officer Connie Simmons of the Little Rock Police Department arrived at the scene at approximately 11:00 a.m. on March 15 and located the victim lying in a fetal position with her left hand in her pocket. Officers recovered a copper projectile and two spent .38 shell casings near the body. The victim’s clothing was also collected, which included a black t-shirt, blue pants, and a bra.
Michelle Basey testified that she was a crack addict when she met the victim at Cathy Morrison’s house on a Sunday. The three smoked crack supplied by the victim. The victim left, telling Basey that she would be on Martin Luther King Street. Basey found the victim later that night with her sister, Odetta Stanfield, and the appellant, Billy Pike. The victim was dressed in the same clothing she was wearing when her body was discovered. The four ended up in a basement of a house, where Odetta got them some drugs then left. Basey stayed and began smoking crack cocaine. Pike and the victim were talking when Pike yelled, “Bitch you owe me.” Basey, who had been a prostitute, understood this statement to mean that the victim owed Pike a sex act because he had paid her money. The victim kneeled down and began performing oral sex on Pike. When the victim stood back up, Pike slapped her. A fight broke out, and Pike pulled out a gun. Pike, who was facing the victim, pointed the gun to the victim’s head and shot her. After Pike fired this shot, the victim remained standing. Basey ran out the door. As she was running, she heard another gunshot. Basey did not see Bobby Chappie in the basement on the night the victim was shot. She did not go to the police that evening because she was scared, high on crack cocaine, and there was a warrant out for her arrest. Nearly one and one half months later, on April 28, Basey contacted police claiming to have been raped by Pike in a separate incident. At this time, she told police about witnessing the shooting of Sunday in the basement.
Detective James Chandler of the Little Rock Police Department initially developed Bobby Chappie as a suspect in the murder. Accompanied by counsel, Chappie turned himself in at the police department and denied any involvement in the crime. Chappie testified at trial that he knew the victim from the streets. He admitted that he had dealt drugs out of the home of a woman named Gwen Simmons. He further admitted to having had “run-ins” with Sunday over drugs and to having threatened her at her mother’s house. He also stated that he had shot a gun into Simmons’s house. Chappie specifically denied shooting Sunday Stanfield. He testified that he did not think it unusual for the same gun to have been used to shoot into Simmons’s house and to have killed Sunday. According to Chappie, when a gun came up missing, he would just get another one. This was something that “happened every day.” Detective Chandler offered similar testimony, stating that it was his experience that guns go through as many as 15 people, especially if used in a crime, and are often traded for drugs.
Dr. Charles Kokes, Associate Medical Examiner of the State Crime Lab, performed the autopsy on the victim. It was his opinion that the victim died from multiple gunshot wounds. One bullet entered the skull above the victim’s left ear and exited her cheek. According to Dr. Kokes, the victim could have remained standing after sustaining this wound. Bruising around this wound indicated that the victim was alive at the time of impact. A second bullet entered behind the victim’s left ear and had been delivered at close range. It was Dr. Kokes’s opinion that the victim could not have remained standing after this wound. A third wound was a superficial wound caused when a bullet grazed the front of the victim’s lower left leg. Cocaine was present in the victim’s blood and urine. The small pipe in her hand contained cocaine residue.
We do not decide whether the State’s witnesses were credible. State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). The jury has the right to believe all or any part of a witness’ testimony. Id. The jury obviously believed Basey’s eyewitness account and Chappie’s denial that he was involved in the shooting over Pike’s theory of the case. Stated another way, the jury was able to exclude every other reasonable hypothesis consistent with Pike’s innocence. Basey’s account can also be reconciled with the medical testimony. Basey said the victim remained standing after Pike pointed the gun to her head and shot; Dr. Kokes testified that the victim could have remained standing after sustaining one of the bullet wounds to the head. She heard a second shot; the victim was shot more than once. Basey said the victim had been smoking crack cocaine prior to her death; autopsy results indicated the presence of cocaine in the victim’s blood and urine. Basey confirmed that the clothes the victim was wearing when her body was discovered were the same as those she was wearing at the time of the shooting. In sum, the State presented sufficient evidence that Pike committed the murder.
The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and no prejudicial error has been found which would warrant reversal.
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Robert H. Dudley, Justice.
Lincoln Wilson was injured when his car was struck by a tractor-trailer owned by Builders Transport, Inc., and driven by Robert Claussen. Wilson filed suit against Builders and Claussen, and the jury returned a verdict of $245,000. Judgment was entered for the amount of the verdict. Builders and Claussen appeal and contend that the award is excessive. We affirm the judgment.
When an award of damages is alleged on appeal to be excessive, the appellate court reviews the proof and all reasonable inferences most favorably to the appellee and determines whether the verdict is so great as to shock the appellate court’s conscience or demonstrate passion or prejudice on the part of the trier of fact. Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992). In determining whether the amount of damages is so great as to shock the conscience, the appellate court considers such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Wheeler v. Bennett, 312 Ark. 411, 422, 849 S.W.2d 952, 958 (1993). The determination is made on a case-by-case basis as “precedents are of scant value in appeals of this kind.” Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453, 457 (1983) (citation omitted); Mustang Elect. Servs. v. Nipper, 272 Ark. 263, 613 S.W.2d 397 (1981). “A jury has much discretion in awarding damages in personal injury cases.” Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 391, 784 S.W.2d 755, 757 (1990) (citations omitted).
In the case at bar, Wilson suffered injuries to his back and neck, a torn rotator cuff in his left shoulder, and cuts and bruises to his face, head, right shoulder, arms, and legs. In the months following the accident, he was treated for continued and increasing pain and tenderness in his left shoulder by Dr. Mark Jansen, a general practioner. Dr. Jansen subsequently recommended that Wilson go to an orthopedic surgeon for further observation. He did so, and magnetic resonance imaging revealed that his left rotator cuff was torn.
Dr. Scott Bowen, an orthopedic surgeon, performed surgery to repair the torn rotator cuff. Dr. Bowen described the surgery as requiring a three-to-four-inch incision into the front of the shoulder. This procedure splits the muscle to reveal the underlying deeper tissues. Dr. Bowen testified:
[T]he bursal covering is opened and the tendon is then seen. And it is a deep structure, and it was torn and retracted. It required a fair amount of mobilization of the tissues and advancing the tissues down, forming a little bony trough and bringing structures out through the bone, so it’s a fairly extensive procedure.
Dr. Bowen described appellee’s tear as being “quite large” and “a broad, retracted tear.” He testified that “the tissue was actually pulled away” and required “immobilizing or exposing more of this tissue and moving it to advance it out to where it can be repaired.” He testified that following this type of surgery, the arm is placed in a pillow-type splint for approximately three weeks. The patient then undergoes therapy that progresses through three months following surgery.
Dr. Bowen testified that Wilson will have some permanent loss of normal function. He rated the impairment to Wilson’s left arm at eight percent (8%), which translates into a five percent (5%) impairment to the body as a whole. He testified that Wilson might need medication or injections in the future to control pain and problems with his left shoulder. He testified that, on rare occasions, an individual suffers a re-tear and will require a second surgery. Finally, he expressed the opinion, within a reasonable degree of medical certainty, that Wilson’s torn rotator cuff was caused by the collision.
Approximately eight months after the surgery, Wilson returned to Dr. Jansen and stated that he had continued pain in his left shoulder. A clinical test performed at that time indicated that the rotator cuff was torn. Dr. Jansen recommended continued medication, rest, and modification of activities.
Wilson had contracted polio as an infant. Throughout his life, the disabilities resulting from polio had affected the use of both of his feet and his right arm. As a result, he relied heavily on his left arm in going about his daily activities. He used his left arm to get out of chairs and to pull himself up stairways. He testified that his left arm was his life.
Testimony established that Wilson had been self-sufficient before the accident. He lived alone, drove a car, did his own housework, worked in his yard, and enjoyed various other activities, including singing at senior adult dances. He was fifty-seven years old at the time of. the accident.
After the accident, Wilson suffered increasing pain and inability to use his left arm, the arm on which he relied. Following the surgery to repair the torn rotator cuff, he remained in the hospital for three days. While in the hospital, he was unable to take care of his personal needs such as bathing and eating. His sister and nurses bathed and fed him. Upon returning home, he was unable to take care of his bodily functions, such as cleaning himself after bowel movements, and was concerned about the way he smelled. For six weeks following the surgery, Wilson had to ask people to run errands for him, and a home-health service bathed him, took his temperature and blood pressure, and changed his bandages.
Wilson’s neck and back continue to hurt. He has painful “shoulder pops” on a daily basis. He now has difficulty getting out of chairs and climbing stairs. He has difficulty eating.
Before the accident, Wilson used hand tools and worked around his home. He cleaned his house. He is no longer able to do these things. He hired an individual to do his outdoor housework at a cost of $115. He pays thirty dollars a month to have his house cleaned.
He now has a fear of driving. He does not participate in activities as he did before the accident. He is afraid he will be required to go into a nursing home at an early age as a result of the injury to his left arm. He continues to suffer pain in his neck, shoulder, and back, and is unable to properly use his left arm.
There was evidence that Wilson will need future medication and injections and possibly physical therapy. In addition, Wilson presented evidence that his rotator cuff was not intact eight months after the repair surgery. He did not establish a sum certain for future costs. However, “[f]uture medical expenses do not require the same degree of certainty as past medical expenses.” Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453, 457 (1983). Wilson presented evidence of his past medical expenses, including a medical expense summary, and “[i]t is not speculative or conjectural to calculate future medical expenses where there is a history of medical expenses that have accrued as of the date of trial, particularly where there is also a degree of medical certainty as to the need for future medication.” Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 392, 784 S.W.2d 755, 757-758 (1990). Future medical expenses were an appropriate element of damages for consideration.
Wilson presented proof of permanency of his injury through his own testimony and that of his physicians. He testified as to his ongoing pain and disability. His physicians testified as to the likelihood that he will have some pain and discomfort in the future and some need for exercises, modification of activities, pain medications, and injections. Dr. Bowen testified that he rated Wilson as having an 8% impairment rating to his left upper extremity, which translates into a 5% impairment rating to the body as a whole.
Wilson presented ample proof of pain and suffering, through his own testimony and that of his doctors and friends and relatives. He suffers constant pain in his neck and back and is unable to raise his arm above his head without pain or discomfort.
He also presented ample proof of mental anguish as a result of the injuries he suffered in the collision. Prior to the accident, he was able to take care of himself and enjoy social activities. Now he is unable to take care of himself and worries about his personal hygiene. He no longer enjoys social activities as he did prior to the accident. He is unable to eat normally and is embarrassed by spilling food on himself. He is not able to keep his house as he did before the accident. He is concerned about the cost of hiring people to do the jobs around his house. He is afraid of entering a nursing home at an early age because he is no longer able to care for himself as a result of the injury to his left arm. The Arkansas mortality table introduced at trial showed him to have a life expectancy of 23.49 years.
The proof in this case supported the conclusion that, not only did Wilson suffer a permanent injury which causes him pain, discomfort, and inability to use his left arm properly, but it also drastically changed his life. The verdict of $245,000 is not so great as to shock the conscience of the court or to demonstrate passion or prejudice on the part of the jury. Consequently, we affirm the judgment. | [
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Tom Glaze, Justice.
On July 20, 1990, the appellees, Randy and Rita Jones, leased a feed mill business from Mountaire Feeds, Inc., for five years. The lease contained an option to renew for an additional five years at the end of the primary term. During the primary term, appellant John Stacks entered into negotiations to purchase the mill from Mountaire, and those negotiations culminated in a sale on August 14, 1992. At that time, Mountaire assigned the Joneses’ lease to Stacks. Significantly, a wind storm had damaged the fertilizer and seed storage bins on the leased property only four days prior to Stacks’s purchase of the property. By letter dated October 30, 1992, Stacks told the Joneses he would not repair the storm damage and he was terminating that portion of the lease involving the fertilizer business. Stacks further notified the Joneses that they were in noncompliance with certain lease provisions. Stacks, about six weeks later, demanded the Joneses vacate the property.
On March 11, 1993, the Joneses brought this lawsuit, alleging Stacks had breached their lease agreement, and seeking damages arising from that breach. On September 29, 1994, this matter was tried to a jury which returned a judgment in favor of the Joneses in the sum of $137,797.00. The trial court entered its judgment on October 12, 1994, and Stacks’s new counsel entered his appearance and filed a timely motion for new trial on October 24, 1994. That motion alleged juror misconduct. The record reflects no ruling on Stacks’s motion, but it shows he filed a timely appeal on December 9, 1994.
In his appeal, Stacks first argues there is no substantial evidence to support the jury’s award of damages. He claims damages are excessive as a matter of law and fact. However, Stacks simply failed to preserve his arguments below. For example, he now cites the case of Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990), in support of his contention that the jury erred in awarding the Joneses damages covering future losses resulting from the five-year lease renewal period. Stacks argues the Burnette decision, as a matter of law, bars the Joneses from recovering damages extending beyond the primary term of the leasehold interest. While Stacks’s argument might have some merit, the Joneses point out Stacks never mentioned Burnette below, nor did he object to the evidence the Joneses presented on this future-loss issue. In addition, Stacks also failed to tender an instruction on the issue.
Although Stacks concedes the Burnette issue was never raised below, he claims that, as a matter of fact and under the evidence, the future losses resulting from the renewal option had been miscalculated and awarded by the jury. As a consequence, he claims he duly preserved the excessive-damages issue when he moved for a directed verdict at the end of the Joneses’ case and after all the evidence had been submitted. We must reject Stacks’s argument on this point because his directed verdict motion failed to specify excessive damages as a ground. Under Ark. R. Civ. P. 50(a), a motion for directed verdict must state the movant’s specific grounds. The purpose of this requirement is to assure the specific ground for a directed verdict is brought to the trial court’s attention. See Standridge v. City of Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1981).
Stacks also cites Ark. R. Civ. P. 59 in an attempt to salvage his appeal, and argues that rule provides that an error in the assessment of the amount of recovery, whether too large or too small, is a ground for granting a new trial. He further asserts provision (f) of Rule 59 provides that it was unnecessary for him to move for a new trial in order to preserve error concerning the damages issue. In other words, Stacks suggests that any of the Rule 59(a) grounds for a new trial (like excessive damages) can be urged on appeal without ever having brought those grounds to the attention of the trial court.
We first make the observation that, if we accepted Stacks’s interpretation of Rule 59(f), we would be adopting a plain error rule — a rule this court has steadfastly rejected. See Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993). Second, while Stacks complains that it was impossible for him to have complained about excessive damages until after the jury returned its verdict, he ignores the fact that he failed to object to any of the Joneses’ evidence bearing on damages that he now claims on appeal are erroneous as a matter of law. For example, he allowed, without objection, the Joneses’ economic expert to testify thoroughly as to the future losses he now claims violate the holding in Burnette. Likewise, he failed to object to the Joneses’ testimony on lost profits, but instead seeks to question that evidence for the first time in this appeal. And finally, we note Stacks never offered any jury instructions bearing on these damage issues, or any setoff matters that he now argues he is legally due.
Clearly, under Rule 59(f), if a party has already properly preserved his or her error concerning any of the grounds listed in Rule 59(a), that party is not required to make a motion for new trial in order to argue those grounds on appeal. Cf. Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994). Nonethe less, because our rules do not provide for plain error, any error argued on appeal must have first been directed to the trial court’s attention in some appropriate manner, so that court had an opportunity to address the issue. Our court continues to adhere to the well-settled rule that issues not raised in the trial court will not be considered for the first time on appeal. Lynch, 312 Ark. at 82, 847 S.W.2d at 33.
In his second point for reversal, Stacks contends the trial court erred in refusing to give an instruction regarding the Joneses’ duty to mitigate damages. The trial court refused, stating no evidence existed to support such an instruction.
Stacks proffered AMI 2229 which is the instruction on the mitigation of damages to real and personal property. The note on use to AMI 2229 explains the instruction should be given only when there is evidence that a party claiming property damage has failed to mitigate damages. This court in Twin City Bank v. Isaacs, 283 Ark. 127, 672 S.W.2d 651 (1984), stated that AMI 2229 deals with physical damages to real or personal property covered by AMI 2222 through 2228. Here, the Joneses were seeking lost profits, not physical damages to property. Accordingly, the trial court was correct in refusing Stacks’s proffer of AMI 2229.
For the reasons hereinabove, we affirm.
Newbern, J., concurs.
The ten-day deadline for filing Stacks’s new trial motion fell on Saturday, October 22, 1994, which extended the time to the following Monday, October 24, 1994. The motion was deemed denied thirty days later, making his notice of appeal filed on December 9, 1994, timely. See Ark. R. Civ. P. 59(b) and Ark. R. App. P. 4(c).
Included in this argument is Stacks’s claim that the Joneses were asking double recovery since they wanted both lost profits plus debts incurred in the feed mill’s operation.
Although the Joneses emphasize Stacks has failed to preserve his arguments on appeal, we note they also reiterate throughout their argument that they offered substantial proof, including expert testimony, which established the damages awarded by the jury. We find it unnecessary to discuss the evidence in detail, since we agree Stacks failed to raise these damage issues below.
Stacks argues on appeal that the jury should have deducted certain amounts representing the Joneses’ “substantial current earnings,” as well as fertilizer tonnage amounts provided in the lease. | [
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Bradley D. Jesson, Chief Justice.
The appellant, Tommy Ray Mosley, was convicted of rape and sentenced as a habitual offender to life imprisonment. On appeal, he argues that the State’s evidence was insufficient to satisfy the forcible compulsion element of rape, and that the trial court erred in allowing a State’s witness to testify at trial when the State had not complied with the rules of discovery. We affirm.
The State elicited the following testimony at trial. The victim, Sherry Christian, testified that she went to the Horse Shoe Bar in Hot Springs around 7:00 p.m. She was upset over a fight with her boyfriend. The appellant, Tommy Ray Mosley, arrived at the bar around 8:30 p.m. Sherry and Mosley had met the previous weekend at a country dance hall, where Mosley had given her his phone number. Mosley approached Sherry and asked her why she had not called him. The two talked for about fifteen minutes before Sherry asked Mosley to give a friend, Bill Branch, and her a ride home. Mosley agreed, and the three left the bar around 9:00 p.m. They drove to the home of Branch’s brother, Greg Branch, who was Sherry’s former boyfriend. Mosley and Sherry stayed at the residence for approximately fifteen minutes before Sherry stated that she needed to go meet her babysitter. After Sherry and Mosley got in his car, Mosley stated that he needed to go by his sister’s house and get money for gas. Sherry asked to be let out, but Mosley told her it would only take a minute and then he would take her home.
Mosley then drove to a remote area. Sherry again stated she wanted to go home, but Mosley told her that he would not take her home “until I get what I’m here for.” She became frightened and attempted to leave the car. Mosley grabbed her arm and told her that he was going to get what he wanted and he was there “to play games.” Sherry told Mosley that her uncle and others would be looking for her, but Mosley started trying to grab and kiss her. When she scratched Mosley and began pulling his hair, Mosley called her names and began to choke her until she vomited. The two struck each other and pulled each other’s hair, and Mosley bit her on the neck. When Sherry began vomiting a second time, she told Mosley she would do whatever he wanted if he would let her out of the car. When he did, she began to run. He grabbed her, and the two struggled in the dirt. He dragged her onto the hood of the car and began choking her. When Sherry tried to yell for help, Mosley threatened to kill her. She then obeyed Mosley’s directions to pull down her shorts and underwear. While Sherry continued to fight, Mosley fondled her before putting his penis in her, telling her that “he was going to do it so hard that he was going to tear [her] open.” According to Sherry, Mosley “pounded [her] and pounded [her] as hard as he could” and told her, “Oh, you’re going to like it. You like it. You know you like it.”
Mosley eventually ordered Sherry to get dressed and to get back in the car. As he drove her to her babysitter’s house, he apologized and asked her not to tell anyone what had happened. From the babysitter’s, Sherry went to the hospital for treatment.
Marnie Keck, a nurse at the hospital, described Sherry as being very emotional. According to Keck, she was dirty and scraped up, and had a very disheveled appearance. Keck observed fresh bruises on her throat and under her left and right eyes, and a very large bruise over her left eye. Keck further observed a bite mark on Sherry’s neck, dried blood on both her inner thighs, and dirt on her legs and abdomen.
Dr. Gene Shelby treated Sherry at the hospital. He testified that she was very tearful and anxious. He noticed some bruising to her face evidencing recent trauma. In completing a pelvic exam, Dr. Shelby noted some superficial tears to the opening of her vagina. These wounds appeared to be fresh wounds, and were “completely unrelated” to Sherry’s recent delivery of her child. In examining the vaginal vault, Dr. Shelby observed a small amount of clear fluid that was consistent with ejaculation. Dr. Shelby concluded that there were “a lot of signs of forced sexual intercourse.”
Officer Cory DeArman of the Garland County Sheriff’s Office interviewed Sherry at the hospital. According to DeArman, Sherry looked distraught and had been crying. She had twigs and dirt in her hair. DeArman further observed a red mark on Sherry’s right eye and marks on her neck.
When Sherry went to the sheriff’s office a day later, Officer Sarah Love photographed the bruises on her face and bite mark on her neck. Deputy Sheriff Mike Brown testified that, when Mosley was arrested and brought to jail on September 2, he observed scratch marks on Mosley’s neck, back, and stomach.
At the close of the State’s case-in-chief, Mosley moved for a directed verdict, arguing that the State had failed to prove the forcible compulsion element of the rape charge. The trial court denied the motion, and Mosley testified on his own behalf. He admitted to having hit, bitten, and choked Sherry on the date in question; however, he claimed that he and Sherry “kiss[ed] and ma[de] up” and engaged in consensual sexual intercourse. On cross-examination, Mosley stated that there were several reasons for the altercation. First, he was “a little bit” jealous that Sherry talked to Greg Branch when they were at Branch’s house. He also stated that he was hurt over problems he was having with his own girlfriend.
At the close of all the evidence, Mosley renewed his motion for directed verdict on the ground that there was insufficient evidence of forcible compulsion. The jury returned a verdict finding Mosley guilty as charged. After hearing evidence of Mosley’s six prior felony convictions, the jury recommended that he be sentenced to life imprisonment. The trial court entered judgment accordingly, and Mosley appeals.
I. Sufficiency of the evidence
We have recently repeated our guidelines for reviewing challenges to the sufficiency of the evidence in Pike v. State, 323 Ark. 56, 912 S.W.2d 431 (1995):
In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction. Id.
323 Ark. at 60, 912 S.W.2d at 433-4, citing Mills v. State, 322 Ark. 647, 654, 910 S.W.2d 682, 686 (1995). Specifically, Mosley contends that the State failed to prove an element of the rape charge, namely forcible compulsion. Rape is defined in Ark. Code Ann. § 5-14-103 (Repl. 1993), in pertinent part, as follows:
(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person;
(1) By forcible compulsion[.]
“Forcible compulsion” is defined as “physical force, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1993). We have defined “physical force” as “any bodily impact, restraint or confinement, or the threat thereof.” Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994); citing Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). The test for determining whether there was force is whether the act was against the will of the party upon whom the act was committed. Caldwell v. State, 319 Ark. 243, 889 S.W.2d 771 (1995); Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973).
In this case, there was substantial evidence of forcible compulsion. Sherry’s graphic description of the incident need not be repeated. Indeed, the victim’s testimony alone is sufficient to sustain a conviction for rape. See Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). Her account clearly met the test of showing that the act was committed against her will. In addition to the victim’s testimony, the State offered the testimony of Nurse Keck, Dr. Shelby, and Officer DeArman, all of whom described the victim’s injuries and emotional state on the date in question. Such evidence corroborates Sherry’s version of the incident.
Mosley claims that the State’s evidence was insufficient to prove forcible compulsion because the victim’s injuries could have been caused either by a “physical fight” she had earlier that night with her boyfriend, or by the recent delivery of her child. However, the victim denied that either she or her boyfriend had hit the other. Moreover, Dr. Shelby testified that superficial tears to the victim’s vagina were unrelated to the delivery of her child, and, that, in his opinion, there were “a lot of signs of forced sexual intercourse.” The jury is free to believe all or part of a witness’s testimony. Pike v. State, supra; State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). The jury obviously believed the medical testimony and that of the victim over Mosley’s version of the events. In sum, the State presented sufficient evidence of forcible compulsion.
II. Discovery violation
For his second point, Mosley claims that the trial court erred in permitting David Worley, a witness for the State, to testify. On the morning of trial, counsel for Mosley learned that the State had issued subpoenas for Worley and Ralph McMillan. The State maintained that these witnesses had taken blood and saliva samples from Mosley, sealed them, and sent them to the sheriff’s office, which in turn forwarded the samples to the state crime lab. Thus, the State contended that their testimony would be limited to establishing a chain of custody. The trial court, over Mosley’s objection, ruled that the witnesses could testify, but their testimony would be limited to establishing a chain of custody.
McMillan did not testify at trial. Worley testified that, while employed as a respiratory therapist and nurse at St. Joseph’s Regional Health Center, he used an Arkansas Sexual Assault Kit to collect evidence from Mosley. He further testified that he was present when Mosley’s blood was drawn, put into a test tube, and placed in a sealed envelope. Worley also testified that he collected a saliva sample for Mosley, sealed it in an envelope, placed the envelope in the evidence kit, and gave it to a deputy sheriff. Edward Vollman, a forensic serologist with the state crime lab, later testified that semen found on Sherry’s shorts and secretions preserved from a vaginal swab were consistent with secretions by someone with Mosley’s blood type. Thus, Vollman stated that Mosley could not be excluded as a person who may have had sexual intercourse with Sherry.
We have recently reviewed the pertinent rules of discovery in Mills v. State, supra:
Under Ark. R. Crim. P. 17.1(d), the State is required to disclose to the defense any material or information within its knowledge, possession, or control which tends to negate the guilt of the defendant. Ark. R. Crim. P. 19.2 further imposes a continuing duty to disclose this information. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). Under Rule 19.7, if there has been a failure to comply, the trial court may order the undisclosed evidence excluded, grant a continuance, or enter such order as it deems proper under the circumstances. Id. In some situations, a recess granted to interview the witness is sufficient to cure the failure to comply with the Rules of Criminal Procedure. Id.; see Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980); Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978).
322 Ark. at 656-657. It is the prosecutor’s responsibility to provide reports of scientific tests and any information or materials concerning witnesses he or she intends to call. Ark. R. Crim. P. 17.1(a)(i), (iv); see also Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993).
In the present case, Mosley filed several motions for discovery. The trial court entered at least two discovery orders in which it directed the attorneys to file a list of witnesses. The State provided witness lists to Mosley on September 27, 1994, and on April 17, 1995. Neither list included Worley’s name. Clearly, the State violated the discovery rules and such violation should not be dismissed lightly. However, the key in determining if a reversible discovery violation exists is whether the ’appellant was prejudiced by the prosecutor’s failure to disclose. Burton v. State, supra; citing Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).
In this case, Mosley’s theory was that the act of sexual intercourse had occurred, but it was consensual. This position was conveyed to the jury in Mosley’s opening statement. Thus, the admission of Worley’s testimony, offered to establish the chain of custody of Mosley’s blood and saliva samples used to prove that he could have had sexual intercourse with Sherry, was harmless error. It was in fact consistent with Mosley’s version of what occurred. As Mosley has shown no prejudice, no reversible discovery violation exists.
The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and no prejudicial error has been found which would warrant reversal.
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Bradley D. Jesson, Chief Justice.
This case concerns the duty of a landlord to protect its tenants from the criminal acts of third persons. The appellant, Hazel Kinchen Hall, and her son, seventeen-year-old Kendall Dolls, were tenants in the Jefferson Manor Apartments. The apartments were operated by the appellee, Rental Management, Inc. (RMI). On July 12, 1991, Kendall Dolls was shot and killed on the premises. The perpetrator, a man named Geno Davis, was the guest of another resident. Mrs. Hall filed suit in 1994 alleging that the negligence of RMI had proximately caused her son’s death. A motion for summary judgment was filed by RMI and was granted by the trial court. We find no error and affirm.
On the night of the shooting, Kendall Dolls left his apartment and went to an area of the complex where an activity for young people had been taking place. The record does not reflect exactly what took place, but it appears Kendall was shot without provocation by Geno Davis. In her complaint, Mrs. Hall alleged that RMI had failed to provide adequate security measures to ward off criminal attacks and in particular had used unqualified personnel as security.
After substantial discovery had taken place, RMI filed a motion for summary judgment on the basis that a landlord owes no duty to protect its tenants from the criminal acts of third persons. A copy of Mrs. Hall’s lease agreement was attached as an exhibit to the motion. The lease contained no provision in which RMI agreed to provide Mrs. Hall security against criminal activities. Mrs. Hall responded to the motion by acknowledging that, as a general rule, landlords have no duty to offer such protection to their tenants. However, she claimed, RMI voluntarily undertook' a duty to provide security and, having done so, was bound to use reasonable care. To show that RMI had assumed this duty, she attached the following exhibits:
1. The Good Neighbor Handbook. Paragraph 14 of the lease agreement stated that tenants would abide by the House Rules as set forth in the Handbook.
2. A portion of RMI’s Employee Procedures Manual. The manual contained sections entitled “Security” and “Security Patrol.”
3. Deposition testimony of Chuck Needs. Mr. Needs was a maintenance man at the complex.
According to Mrs. Hall, each of these exhibits contained evidence that RMI had assumed the duty to provide its tenants with protection against criminal activity. The following are the relevant portions of the exhibits.
The Good Neighbor Handbook
Under a section titled “SECURITY,” the following paragraph appears:
A feeling of security is important to all residents. If you notice any unusual or suspicious activity, please notify the Resident Manager immediately. All residents are asked to cooperate when seeing abuse to anyone or to the property. Do not open the door to anyone unless you know who it is. If you are in doubt, call the management if necessary.
The following provisions are included in a section titled “HOUSE RULES”:
The management cannot be responsible for your children in the event of parent negligence. We can only see that the grounds and apartment are a safe place to live; but without a parent, it becomes very unsafe and threatens the life of your child.
Because of management’s concern for safety and your peace of mind, children under school age cannot be allowed in public areas such as laundry, office or recreation room, unless accompanied by a parent or guardian.
You have the same privacy as if your apartment were a separate home. Each tenant has that same right of privacy and peaceful enjoyment. Since the apartments are close together, you must think of the other people who live next door to you. To give your neighbors the privacy that they deserve, we ask that your children do not play outside beyond the time of 9:00 p.m. each evening.
Employee Procedures Manual
The manual as a whole deals with many aspects of apartment living such as lock-outs, visitors, keys, pets, and fire safety. However, three pages of the manual address the subject of security. Under the heading “Security,” RMI resident managers are directed to be concerned about the safety factor in apartment living, and told that effective security requires cooperation between management and residents. General security advice is given such as having children play in designated areas; making sure there are no excessive crowds or noise; vehicular control, meaning no large trucks or trailers in parking places, no motorcycles in breezeways, and no disabled vehicles; reminding residents to control their guests; being alert for suspicious activities; and getting acquainted with local law enforcement personnel. The following provisions also appear:
On-site management will have to recommend to the Property Manager if security officers are needed. It is most important that ALL on-site personnel be security and safety conscious at all times.
Security patrol may be performed by employees to check the property in the evenings. A regular check will ward off problems and inform the management of any unusual activity.
RMI employees must:
Conduct themselves, at all times, in a helpful, friendly, yet business-like manner with all residents and guests. This will give the residents a sense of well-being. A business and no-nonsense approach will let them know that we take our jobs seriously and that the welfare of the residents is very important to all employees.
Any person on the property that is not a resident or guest is considered trespassing. If there is any cause for concern, call the police. In any event, ask the person if we can help or give directions. A person must have legitimate business to be on the property. If the person has no business on the property, they must be asked politely to leave. Again, if there is cause for concern, CALL THE POLICE. Obtain the person’s name. If possible, obtain the license number of the car. Keep this information on record for future reference.
Under the heading “Security Patrol,” the following appears:
Crime is a major worry for residents and there is no substitute for having the property patrolled by well-trained people, whether by our own employees or professional security personnel. Strict management of tenants behavior and the behavior of guests make it clear from the start that the property is a no-nonsense place. Adhering to strict policy will not be attractive to those who just want to ‘hang out.’ ‘Hanging out’ will not be tolerated. This is the beginning of major problems.
Activities that are disturbing and impose on the rights of others will not be tolerated, not only from residents but from others. Activity of this type must never be allowed to get started. Our reputation will serve as some type of security measure.
Residents may blame the management for failing to provide security or for providing it negligently. Legal liability for negligence may perhaps be reduced by hiring an outside Security Patrol.
If there is a problem with security, the resident must contact the RMI office. We will be happy to go to any length to correct the problem.
It is our goal to at all times provide'a safe place for our residents and family. We feel our residents have the right to be safe and live in a peaceful environment.
Deposition of Chuck Needs
On the date of the shooting, the resident manager was on vacation. Mr. Needs, the maintenance man, was left to respond to maintenance calls, check the lights, and help with the youth activity center. The complex employed no security guards. Either Mr. Needs or the manager would patrol the premises, especially if residents called and said they heard a noise, for example. In such a case, Mr. Needs would look around the area. If he saw some evidence, such as footprints, that a person had been outside an apartment, he would make a record of the incident. The steps the complex might take as part of security were checking the lighting, responding to tenant calls and making the rounds to check playgrounds, porches, and driveways. If, for example, a tenant saw a person with a gun, the tenant might call him and he would call the police.
After a hearing, the trial judge granted the motion for summary judgment. He relied on our recent decision of Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), and found that the activities of RMI in making some efforts toward safety did not create a duty to provide security against the criminal acts of others. Mrs. Hall appeals from that ruling.
This is the type of issue which is properly decided by summary judgment. It involves the question of whether a duty exists. This is always a question of law, not to be decided by a trier of fact. First Commercial Trust Co. v. Lorcin Eng’g, 321 Ark. 210, 900 S.W.2d 202 (1995).
Our most recent case concerning the duty of a landlord in these circumstances is Bartley v. Sweetser, supra. In that case, two men entered a tenant’s apartment and raped her. The tenant sued her landlord claiming that the landlord provided her with a windowless door with a simple push-button lock, failed to provide adequate security and adequate lighting of the common areas, and failed to warn her that the complex was prone to criminal activity. The trial court granted summary judgment in favor of the landlord and we affirmed. In our affirmance, we recognized the general rule that a landlord does not owe a duty to protect the tenant from criminal acts. However, the appellant alleges that the activities undertaken by RMI remove this case from the rubric of Bartley. She argues that RMI voluntarily undertook to provide security, thereby becoming liable for any negligence in doing so.
We have implied that a landlord who assumes a duty not required of him is removed from the general rule. See Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989) and Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969) where we said that there was no evidence of “an agreement or assumption of duty that removes the landlord from the general rule.” (Emphasis added.) Indeed, this principle is widely recognized. R. Schoshinski American Law of Landlord & Tenant, § 4:15 (Supp. 1995); Walls v. Oxford Management Co., 137 N.H. 653, 633 A.2d 103 (1993); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Hill v. Chicago Housing Authority, 233 Ill. App. 3d 923, 599 N.E.2d 1118 (1992). So, the question left to us is whether RMI has removed itself from the general rule and assumed a duty to protect its tenants from criminal attacks. The answer is no.
The provisions of the handbook and the procedures manual, along with the deposition testimony of Chuck Needs reflect that RMI had a concern for the general welfare of its tenants, and a desire to keep on-site management informed of the activities taking place on the grounds. Its implementation of certain practices such as lighting, evening patrols, and communicating with residents regarding suspicious activities help assure the quiet enjoyment and basic safety of the tenants, in addition to providing a modicum of deterrence to criminal activity. We are reluctant to hold that a landlord’s use of these modest, conscientious measures imposes a full-blown duty to protect tenants from third-party criminal activities.
The Alabama Supreme Court faced a similar issue in the case of Dailey v. Housing Authority for the Birmingham Dist., 639 So.2d 1343 (1994). There, the tenant argued that certain provisions in a procedures manual, similar to those here, and the hiring of a guard to patrol the grounds, gave rise to a duty to protect tenants from criminal attacks. The court said the following:
all that the quoted statements from the documents and the HABD’s hiring of a security guard indicate is an attempt by HABD to discourage crime in the Metropolitan Gardens area, not a voluntary assumption of a duty to provide [the tenant] with protection from all criminal acts. We find the actions of HABD to be commendable, both in hiring security personnel and in setting out in writing those persons’ duties and roles. HABD was attempting to reduce the occurrence of crime in the Metropolitan Gardens neighborhood and to alleviate the fears and anxieties of its tenants.
The provisions undertaken by RMI in this case do not rise to such a level that RMI has assumed a duty to protect its tenants from criminal attacks by third parties. Therefore, we hold that this case is controlled by the general rule enunciated in Bartley v. Sweetser.
Affirmed.
Appellant attached a number of exhibits to her response, but only three are abstracted. We will consider only those exhibits which are abstracted. See Columbia Mut. Ins. Co. v. Patterson, 320 Ark. 584, 899 S.W.2d 61 (1995); Rowe v. Druyvesteyn Constr. Co., 253 Ark. 67, 484 S.W.2d 512 (1972). | [
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Andree Layton Roaf, Justice.
Appellant Robert Earl Galvin was convicted of first-degree murder and sentenced to thirty-six years imprisonment. For his sole point on appeal, Galvin contends that the trial court erred in denying his motion for a directed verdict. We affirm.
At appellant’s trial an officer with the Little Rock Police Department testified that he received a call at 2:31 a.m. on December 19, 1993, and, after arriving at the intersection of Twenty-fifth and Maple, discovered the body of the victim, Joey Madaris, lying in a grassy area next to a fence near the corner. In addition, an expended cartridge was found in the intersection itself. A crime specialist testified that the expended cartridge was found approximately forty feet from the victim and that such a cartridge would not have been ejected more than six or seven feet from where the weapon was fired. He further testified that it was impossible to determine whether the cartridge was involved in this incident. An associate medical examiner with the Arkansas State Crime Laboratory testified that the victim had two gunshot wounds. The fatal shot entered the right side of the victim’s back, and a second shot entered the sole of the victim’s right foot.
Derrick Johnson, age seventeen, testified that he knew the victim, Joey Madaris, and that he saw the victim on the morning of December 19, 1993. Johnson stated that he also saw Robert Galvin, age sixteen, John Holmes, and Derrick Galvin standing in a yard by John Holmes’ house which was next to the house with the fence where the victim was found. Derrick Johnson was standing across the street near an elementary school on Maple Street. Johnson testified that it appeared Madaris was exchanging words with the Galvins and Holmes. When Madaris attempted to walk away, Derrick Galvin and Holmes grabbed him, Robert Galvin pulled up his shirt, pulled out a gun, and started shooting. Johnson testified that he heard two shots and started running; the last place he saw Madaris was near the corner of the fence. Johnson stated that he knew appellant Robert Galvin before the incident and identified the appellant in court. Although Johnson could not say that he actually saw Madaris get shot, he testified that he saw Galvin shoot the gun at Madaris from close range and heard two shots before he ran away.
The appellant argues that the trial court erred in denying his motions for directed verdict because there was no substantial evidence upon which reasonable jurors could find appellant committed the homicide. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Young v. State, 321 Ark. 541, 906 Ark. 280 (1995). When reviewing the sufficiency of the evidence on appeal, we do not weigh the evidence but simply determine whether the evidence in support of the verdict is substantial. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id. In determining whether there is substantial evidence, we review the evidence in the light most favorable to the State, and it is permissible to consider only that evidence which supports the guilty verdict. Id.
At the close of the State’s case, the appellant moved for a directed verdict on the basis that reasonable jurors could not find Derrick Johnson credible. The appellant further asserted Johnson’s testimony was directly contradicted by the State’s evidence regarding where the victim was found and where other evidence was found. The appellant again moved for a directed verdict at the close of all the evidence on the basis that reasonable jurors could not find Johnson’s testimony credible based upon “all the contradictions of the other testimony.”
On appeal, the appellant asserts that the only evidence which had any tendency to link him with the crime was the testimony of Derrick Johnson. The appellant again submits that such evidence was not credible and was not substantial. However, on matters of credibility of the witnesses and conflicting testimony, we have repeatedly held that the determination of those issues is left to the trier of fact. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995). Further, the uncorroborated testimony of one State’s witness is sufficient to sustain a conviction. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992).
The appellant points out certain discrepancies in the statements Johnson gave to police and his testimony at trial. At trial, Johnson admitted that in his original statement to the police on the morning of December 19, 1993, the day of the shooting, he said that he did not know anything because he did not want to get involved. He testified that he gave the police a second statement on February 9, 1994, in which he told the truth. In his second statement, Johnson told the police he went to a friend’s home and had her dial “911,” and he then reported the shooting. At trial, Johnson testified that he dialed “911.” The friend testified by way of a transcript from a prior proceeding that Johnson had not come to her house on the night Madaris was shot. She admitted that she told an officer that Johnson called “911” from her home but claimed that Johnson had called and asked her to do so, and she thought it was a prank. Johnson also admitted that he had pled guilty to two counts of delivery of cocaine and made an agreement with the State that in exchange for his truthful testimony in the instant case his punishment on the delivery of cocaine offenses would be reduced to five years probation, 120 days in the county jail, and a $500 fine.
The appellant also asserts that Johnson’s testimony conflicts with the physical evidence. We need not examine these conflicts because we review the evidence in the light most favorable to the State, and it is permissible to consider only that evidence which supports the guilty verdict. Nevertheless, much of the testimony can be reconciled with the physical evidence. Johnson testified that he saw Galvin shoot the gun from close range. The appellant submits this conflicts with the testimony of the criminalist with the Arkansas State Crime Laboratory. However, the criminalist testified that her conclusion that the shots were fired at a “distant range” was simply based upon the fact that no smoke residues or gunpowder flakes were discovered, and she stated that “distant range” meant nothing in terms of feet and inches. The appellant also points out that Johnson last saw the victim at the corner of the fence, and the victim was in fact discovered approximately fifteen feet away. Finally, the appellant finds it significant that an expended cartridge was found in the intersection some forty feet away; however, the crime specialist testified it was impossible to determine whether the cartridge was involved with this incident.
In sum, this case involves a credibility determination and while Johnson may not have an exemplary background, credibility is for a jury, not an appellate court, to determine. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).
Affirmed. | [
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David Newbern, Justice.
This is a mortgage foreclosure case brought by the appellee, Twin City Bank, against William V. Alexander, the appellant. Foreclosure was decreed, and the Chancellor granted a summary judgment to the Bank with respect to a counterclaim. The summary judgment on the counterclaim is the subject of this appeal. The judgment is affirmed.
The transaction which resulted in Mr. Alexander’s liability to the Bank originated in 1984 when he and his partners, who were John Flake and others, executed a note in favor of the Bank to finance a Colorado condominium project. In 1987, after it was apparent that the project was in financial trouble, a document was executed which relieved each partner of joint and several liability for 100% of the note and substituted individual liability of each partner for 125% of each partner’s pro rata share. Mr. Alexander’s claim is that Mr. Flake “put” him in the real estate deal and assured him that his participation was without recourse. Mr. Alexander alleges that, by agreeing to the change in the partners’ liability structure, the Bank reduced Mr. Flake’s personal liability on the loan thus making it easier for Mr. Flake to avoid his obligation to hold Mr. Alexander harmless. In conjunction with his counterclaim in the Bank’s foreclosure action, Mr. Alexander impleaded Mr. Flake. The third party claim alleged Mr. Flake had defrauded Mr. Alexander and had breached a fiduciary relationship with him. The counterclaim alleged the Bank had aided and abetted in the fraud and breach.
The Chancellor declined to hear the claim against Mr. Flake. That claim became the subject of separate litigation in Pulaski Circuit Court, and it resulted in a summary judgment in favor of Mr. Flake which we affirmed. Alexander v. Flake, 95-5 (October 30, 1995). In his letter opinion Circuit Judge Bogard concluded Mr. Alexander had been fully informed of the status of the real estate venture and there was no evidence to support his claim that Mr. Flake stood in a fiduciary relationship with him. In the penultimate paragraph of his opinion, Judge Bogard wrote:
Finally, the Court notes that even [if] it were to conclude that there was a fiduciary duty breached by Flake or that he had defrauded Alexander, the three-year statute of limitations has clearly run. At the latest, Alexander was on notice and should have known of any alleged fraud or breach of fiduciary duty on Flake’s part in 1987 when the Continuing Guaranty reduced Alexander’s exposure on the note. Reasonable minds could not disagree ... that Alexander’s claims are barred pursuant to A.C.A. 16-56-105 and Flake is entitled to summary judgment for this reason alone.
Mr. Alexander’s first point of appeal states that the judgment on his counterclaim must be reversed in the event we reverse the Circuit Court judgment. As we affirmed that judgment, the point has become moot.
In his only other point of appeal, Mr. Alexander seeks reversal of the judgment on his counterclaim because “there were additional fact issues to be heard that were not relevant to the prior lawsuit and the issues were not actually litigated in that case.” In his argument on this point, Mr. Alexander refers to FDIC documents which formed the basis of an affidavit of Ray Hackworth stating that the Bank was guilty of wrongdoing.
Mr. Hackworth, who has 30 years’ experience in banking, stated he had examined FDIC reports on the Bank from 1985, 1987, and 1988, and that the FDIC had been critical of the Bank for being overextended on loans to Mr. Flake. He opined that the Bank had allowed a reduction in Mr. Flake’s obligation to escape from regulatory violations. While this information tends to support Mr. Alexander’s claim that the Bank had a motive for helping Mr. Flake, it does nothing to indicate that there was any fraudulent conduct with respect to Mr. Alexander or that there was any concealment which would have the effect of tolling the statute of limitations on whatever fraud or fiduciary breach claims he might have against the Bank.
In response to Mr. Alexander’s claim of “additional facts not litigated,” the Bank argued to the Chancellor, and it argues on appeal, that Mr. Alexander’s claim against the Bank is barred by collateral estoppel. It is argued that, if Mr. Flake has been found innocent of any fraud or breach of a fiduciary relationship, the Bank cannot be held liable for aiding and abetting something that did not occur. The Chancellor granted summary judgment on the basis of collateral estoppel.
An element of the doctrine of collateral estoppel is that the issue sought to be barred from consideration not only have been actually litigated and decided previously but that the previous determination must have been essential to the judgment. Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). ludge Bogard’s conclusions that there was no fraud and no fiduciary relationship were not essential to his judgment in view of his ultimate pronouncement that the statute of limitations barred the claims whether or not they were true. See John Cheeseman Truck ing, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993). Our affirmance of the judgment was also on the basis of the statute of limitations.
Chancery cases are tried de novo on appeal. Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995). Although we cannot affirm in this instance on the ground which apparently formed the basis of the Chancellor’s decision, i.e., collateral estoppel, we are free to affirm for a different reason. Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992).
Just as in the Circuit Court claim against Mr. Flake, it is clear that the statute of limitations bars the claim against the Bank and thus that summary judgment in the Bank’s favor was appropriate. Mr. Alexander’s counterclaim addressed the statute of limitations problem by saying that the fraudulent acts were concealed from him and not discovered until September, 1991, thus tolling the statute of limitations until that time. There is no evidence whatever of concealment. The record before us indicates Mr. Alexander was kept informed of his liability, and nothing in the record shows he lacked knowledge of Mr. Flake’s other relations with Bank officers. The record shows that, beginning in 1984, Mr. Alexander himself participated in a separate limited partnership venture which included Mr. Flake and Terrence Renaud, a Bank officer.
We decline to reverse and remand when we know that to do so would be a useless act. Perhaps the best example of a case in which we declined to do so is Robb v. Hoffman, 178 Ark. 1172, 14 S.W.2d 222 (1929). In that case the Chancellor had erroneously refused to determine the interest of one of the parties to land after determining a lien issue. We wrote, “To reverse the case and remand it with directions to determine that question might cause another appeal, and would be a useless and expensive procedure to all parties concerned. We therefore proceed to determine that question.” See also Washington Regional Med. Center v. Medical Care Int’l, Inc., 289 Ark. 198, 711 S.W.2d 457 (1986)(useless to remand for transcription of public hearings if no fact issue on appeal); Borengasser v. Chatwell, 207 Ark. 608, 182 S.W.2d 608 (1944)(no need to remand to chancery court to sell pursuant to equitable lien as satisfactory sale con-
ducted in law court); Teegarden v. Director, Ark. Emp. Sec. Div., 267 Ark. 893, 591 S.W.2d 675 (Ark. App. 1979)(useless gesture to remand where employee-claimant could add nothing to the record).
Given our perception that the record in this case is complete, with Mr. Alexander’s best effort having been made at demonstrating his claim against the Bank, we conclude that to reverse and remand because the doctrine of collateral estoppel was misapplied by the Chancellor would be a useless gesture. Just as in Alexander v. Flake, it is clear that Mr. Alexander’s claims arising from a transaction evidenced by documents of 1984 and 1987 are barred by the three-year statute of limitations expressed in § 16-56-105, given the fact that his counterclaim was not filed until March 16, 1993.
Affirmed.
Corbin, J., not participating. | [
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Per Curiam.
The appellant, Dixon Ticonderoga Co., filed its abstract and brief in this case. The Winburn Tile Manufacturing Co. filed the appellee’s brief. Prior to the time appellant’s reply brief was due, the appellant’s attorney realized that the abstract was insufficient to address an issue raised by appellee in its brief, and filed a motion asking that he be allowed to supplement appellant’s abstract. Since the case is not yet ready for submission, we grant the motion and allow the appellant fifteen days within which to file a substituted abstract and brief.
Rule 4-2(b)(2) of the Rules of the Supreme Court provides that, when it does not cause an unreasonable or unjust delay in the disposition of an appeal, an appellant’s attorney may be allowed time to revise his brief, at his own expense, to conform to Rule 4-2(a)(6); however, he may not simply address the new issue in his reply brief, as the rule requires that appellee be afforded the opportunity to revise or supplement its brief. Granting the motion in this case will not cause an unjust delay since the case is not yet ready for submission and other cases are ready for submission. Upon filing of the substituted abstract and brief, the appellee will be afforded an opportunity to revise or supplement its brief, at the expense of the appellant’s counsel. | [
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Per Curiam.
Guy C. Barnes tendered to this court a pro se petition for writ of mandamus in which he contended that the Circuit Court of Sebastian County had improperly refused to allow him to appeal as an indigent even though he filed a timely notice of appeal. With the petition for writ of mandamus, petitioner Barnes furnished an order of the circuit court entered April 18, 1995, denying relief pursuant to Criminal Procedure Rule 37. We presumed the notice of appeal was from that order. In an order entered August 9, 1995, the circuit court had directed that the notice of appeal and designation of record be stricken from the record and that the record not be prepared at public expense for an appeal unless a higher authority were to order it prepared.
Because there was no reason given in the order for striking the notice of appeal, it could not be determined why the notice of appeal was dismissed from the record. So that the ground or grounds for striking the notice of appeal could be determined, we treated the petition for writ of mandamus as a petition for writ of certiorari and directed the Circuit Clerk of Sebastian County, Ft. Smith District, to provide the record with respect to the Rule 37 petition which was denied on April 18, 1995.
The record has been received and the mandamus petition filed. The record reflects that the notice of appeal was filed by petitioner on August 3, 1995. Rule 4(a) of the Rules of Appellate Procedure provides that, to be effective, a notice of appeal must be filed within thirty days of the date an order is entered. It is likely that the trial court dismissed it because it was untimely as this court would do.
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Robert H. Dudley, Justice.
This is an appeal from an order disqualifying a law firm from participating in a case. We affirm the disqualification order. The facts viewed in the light most favorable to appellee are as follows. Clark Brewster, a member of the law firm of Boswell, Tucker & Brewster, was a member of the Board of Governors of the Saline Memorial Hospital from July 1, 1989, to June 30, 1992. During this period, Brewster, as a member of the board, was privy to confidential and privileged information about the hospital’s quality assurance activities and the peer reviews conducted by the medical staff. He additionally served as Chairman of the Joint Conference Committee, a committee composed of three members of the board and three members of the medical staff. This committee relayed concerns of the medical staff to the board about the quality assurance programs. This information was not known to the public and was disclosed to Brewster because of his fiduciary relationship to the hospital. He was not employed as the hospital’s attorney, but he was asked questions by board members because of his profession.
On July 25, 1992, or twenty-five days after the attorney’s term on the board ended, Toni Berry underwent emergency surgery at the Saline Memorial Hospital and, lamentably, died the next afternoon. Shortly after her death, her widower, Jackie Berry, employed Ted Boswell, senior partner in the firm of Boswell, Tucker & Brewster, to investigate a possible negligence action against the hospital. Ten months later the Boswell law firm filed a negligence action on behalf of Toni Berry’s estate against St. Paul Fire & Marine Insurance Company, the insurer of Saline Memorial Hospital, which is a county-owned hospital. See Ark. Code Ann. § 23-79-210 (Repl. 1992). The gravamen of the complaint was that the hospital and certain of its employees committed medical malpractice. See Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995).
On November 15, 1994, the Boswell firm requested numerous records from the hospital under the Arkansas Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 to -107 (Repl. 1992 & Supp. 1995). The FOIA at times provides greater disclosure than do the discovery procedures afforded by the Arkansas Rules of Civil Procedure. Baxter County Newspapers v. Baxter Gen. Hosp. Staff, 273 Ark. 511, 622 S.W.2d 495 (1981). Among the many requested records were “records used by the nursing or hospital administration to determine patient acuity levels”; “records of the employee-to-patient ratio reports from 1991, 1992, and 1993”; and “records of the employee-per-occupied-bed reports for 1990, 1991, 1992, and 1993.” The hospital complied with most of the requests, but refused to release statements taken from witnesses as part of a quality assurance or peer review proceeding. In its response to the Boswell firm’s request, the hospital replied that the quality assurance and peer review records:
are specifically excluded from disclosure and are absolutely privileged communications pursuant to Arkansas statutes. These would be the only such records in the hospital’s possession. Those made and kept by St. Paul or this [law] firm [Friday, Eldredge & Clark] and are not public records.
The Estate of Toni Berry then filed this separate suit under the FOIA and, among other things, requested the circuit court to order the hospital to disclose all records denied “on any alleged quality assurance privilege. . . .”
The Hospital filed a motion seeking to disqualify the Boswell firm from representing the estate in this FOIA suit on the following basis:
The confidential information gathered by Clark Brewster while serving on the hospital’s Board and the decisions related to the operation of the hospital are directly at issue in the present lawsuit. The representation of the Plaintiff in an action directly adverse to the interests of the hospital is improper, presents an unavoidable conflict of interest and gives the appearance of impropriety that undermines the public’s perception of the legal profession and defeats the public policy principles against such actions.
[He] was in a fiduciary relationship with Saline Memorial Hospital and continues to owe a duty of loyalty which will be breached if allowed to represent interests adverse to those of the hospital.
The trial court ruled that the Boswell law firm was disqualified because:
[Clark Brewster’s] membership on the board of Governors of Saline Memorial Hospital, at the time Quality Assurance and Peer Review policies and procedures were approved and adopted by the board, is a matter related to the issues in the pending FOIA action. Mr. Brewster’s law firm represents interests directly adverse to the hospital which will necessarily involve issues related to the very policies and procedures which Mr. Brewster approved and implemented as a member of the Board.
The Boswell firm appeals from the ruling.
Appellant first contends the trial court erred in disqualifying the law firm because the firm was not in an attorney-client relationship with the hospital. We could summarily dispose of the argument by stating that the trial court did not rule that an attorney-client relationship existed. Even so, we answer in more detail. The trial court ruled that a conflict of interest existed between the attorney and the hospital, and that ruling was correct. Rule 1.7(b) of The Model Rules of Professional Conduct provides that a lawyer “shall not represent a client if the representation of that client may be materially limited by the lawyers’s responsibility to another client or to a third person,” unless the client or the third person consents. Model Rule 1.10 states that, while lawyers are associated in a firm, “none of them shall knowingly represent a client when any of them practicing alone would be prohibited from doing so by Rule 1.7.” The Comment to Rule 1.7 discusses several possible conflicting relationships such as the business interests of the lawyer and membership on a board of directors.
A member of a hospital’s board of directors holds a fiduciary relationship with the hospital. Warren v. Wheatley, 231 Ark. 707, 331 S.W.2d 843 (I960). One who is in such a relationship may not assume a position in which his personal interest might conflict with his fiduciary duty as a member of the board. Id. at 712-13, 331 S.W.2d at 847. When a lawyer is on the board of a hospital, the lawyer owes a fiduciary duty to the hospital, and the lawyer should not take any action that conflicts with that duty, such as filing a suit against the hospital. After the lawyer’s term on the board ends, the lawyer should not take any action to the detriment of the hospital when that action is based upon confidential information the attorney gained during the fiduciary relationship.
The holding in this case must be read in context of this case only. The Model Rules of Professional Conduct are not really designed for disqualification trials; rather, they are designed for regulating conduct through the Committee on Professional Responsibility. The rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the Committee on Professional Conduct, does not imply that an antagonist in a collateral proceeding even has standing to seek enforcement of a rule. See The Preamble to the Model Rules of Professional Conduct. In addition, in this case the trial court’s ruling on disqualification does not conflict with the Arkansas Freedom of Information Act. We can envision situations where a disqualification ruling might present a conflict with the FOIA, and a weighing of those conflicts then would be required.
Appellant next argues that any materials reviewed by Brewster, and all actions taken by him as a member of the board, were subject to public scrutiny under the FOIA; therefore, there was no breach of confidentiality. The argument is one that is based upon Mr. Brewster’s recollection of the facts. It fails because we must view the facts, and all reasonable inferences from them, in the light most favorable to appellee. We do not reweigh the evidence, we only determine whether the trial court’s finding was clearly against the preponderance of the evidence. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). In such a review it is permissible to consider only testimony that supports the finding. Griffin v. Woodall, 319 Ark. 383, 892 S.W.2d 451 (1995).
Contrary to Mr. Brewster’s recollection, there was proof from another member of the board, Max Blake, that information was supplied to Mr. Brewster during his tenure on the board that related to quality assurance and peer review and this information was not public information. Moreover, one of the hospital’s responses to the FOIA request, which prompted this FOIA suit, was that “statements taken from witnesses as part of a Quality Assurance or Peer Review proceeding are specifically excluded from disclosure and are absolutely privileged communications pursuant to Arkansas statues.” Appellant does not deny that he seeks records related to quality assurance and peer review. Indeed, one of the issues to be decided by the circuit court when the merits of this FOIA case are reached is whether peer review and quality assurance records are excluded from the FOIA. We observe, without deciding the issue and without indicating how the circuit court should rule when it reaches the merits, that this is a valid issue. The FOIA provides that all records of county hospitals are to be open to the public “except as otherwise specifically provided by this section or by law. . . .” Ark. Code Ann. § 25-19-105(a) (Supp. 1995). One of the exceptions provided “by this section” is for “medical records.” Ark. Code Ann. § 25-19-105(b)(2). Another statute, Ark. Code Ann. § 16-46-105 (Repl. 1994), provides that peer review and quality assurance records “shall not be subject to discovery or admissible in any legal proceeding and shall be absolutely privileged communications.” Id. § 16-46-105(a). See also Baxter County Newspapers, 273 Ark. at 513, 622 S.W.2d at 496.
Regardless of the ultimate ruling on the merits of the issue, the only ruling made by the trial court that is now on appeal is that:
[Brewster’s] membership on the Board ... at the time Quality Assurance and Peer Review policies and proce dures were approved and adopted by the board is a matter related to the issues in the pending FOIA action. Mr. Brewster’s law firm represents interests directly adverse to the hospital which will necessarily involve issues related to the very policies and procedures which Mr. Brewster approved and implemented as a member of the board.
The ruling was not clearly erroneous.
Appellant’s final assignment is that the trial court erred because there was no appearance of impropriety or olfactory offense sufficient to warrant disqualification of counsel. The argument is without merit. Some of the Model Rules of Professional Conduct are imperatives, cast in the terms “shall” or “shall not.” These rules define proper conduct for purposes of professional discipline. Others, generally cast in the term “may,” are permissive and define areas under the rules in which the lawyer has professional discretion. See “Scope” of Model Rules of Professional Conduct. However, Rule 1.7, the primary rule at issue in this case, is cast in imperative terms. It provides that a lawyer “shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibility to ... a third person.” (Emphasis added.) A member of the law firm held a fiduciary relationship with the hospital, and the trial court ruled that there was a substantial relationship between the lawyer’s responsibilities as a result of the fiduciary relationship and the information sought in the FOIA petition. Since the Model Rule is cast in imperative terms, the trial court did not abuse its discretion in finding a conflict of interest and disqualifying the law firm retained by appellant.
As a sub-point, appellant asks us to reconsider our position on the “appearance of impropriety” standard, as we are only one of three states retaining that standard. See David Ivers, Note, Prohibition Against Appearance of Impropriety Retained Under Model Rules of Professional Conduct, 13 U. Ark. Little Rock L.J. 271 (1991). We have recently used the standard in another disqualification case, see Saline Memorial Hosp. v. Jackie L. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995), and we continue to think that it is appropriate in disqualification cases.
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Donald L. Corbin, Justice.
Appellant, Betty Lou Grinning, appeals the order of the Jefferson County Circuit Court convicting her of disorderly conduct and refusal to submit to arrest and fining her $100.00 and $500.00, respectively. She raises two points for reversal of the order: that the trial court erred in overruling her objection based on Batson v. Kentucky, 476 U.S. 79 (1986), and that she was deprived of her right to a jury trial because she was tried by a jury composed of only six members. The Arkansas Court of Appeals certified this case to this court pursuant to Ark. Sup. Ct. R. 1-2(d)(2) as involving a legal principle of major importance. We find merit to appellant’s argument that she was deprived of her right to be tried by a twelve-member jury and therefore reverse and remand.
After voir dire, the trial court stated, “[f]or the edification of the jury, these charges today are misdemeanor charges, or actually under the statute we call them non-felony, which means that we can utilize pursuant to a 1993 enactment of the legislature a six-person jury.” Appellant did not object to the utilization of a six-member jury, nor did she challenge the legislation to which the trial court alluded, presumably Act 592 of 1993. In fact, after the foregoing statement by the court, there was no further discussion of the jury issue by the court, the prosecutor, appellant, or appellant’s counsel.
On appeal, appellant argues for the first time that the Constitutions of the United States and the State of Arkansas entitle her to be tried by a twelve-member jury. She relies upon Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994), for reversal, and cites Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), for the proposition that the right to jury trial is not subject to the contemporaneous objection rule such that she may raise this argument for the first time on appeal.
We first consider appellant’s argument pursuant to the United States Constitution. The United States Supreme Court has held that a twelve-member panel is not a necessary ingredient of the Sixth Amendment right to trial by jury, made applicable to the states through the Fourteenth Amendment. Williams v. Florida, 399 U.S. 78, 86 (1970). The United States Court of Appeals for the Eighth Circuit applied the Williams holding to criminal prosecutions in state courts and stated, “[t]here is no federal rule binding the state courts to use a twelve-member jury in state criminal prosecutions. The state courts are bound by their own sets of criminal procedure rules.” Vinston v. Lockhart, 850 F.2d 420, 424 (1988). As appellant was tried in state court for a state crime, there are no federal issues presented here.
Accordingly, we turn to appellant’s argument pursuant to the Arkansas Constitution. Appellant relies primarily on Ark. Const, art. 2, § 7, consistently applied by this court in criminal cases, which states in pertinent part: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law[.]”
After appellant was tried, but before this appeal was submitted to us, this court decided Byrd, 317 Ark. 609, 879 S.W.2d 435, in which this court held that Act 592 of 1993, codified at Ark. Code Ann. §§ 16-32-202, -203 (Repl. 1994), which provides for a jury of six persons in non-felony cases at the judge’s discretion, violated Ark. Const, art. 2, § 7. This court stated in Byrd that the art. 2, § 7 guarantee of a defendant’s right to a jury trial meant the right to be tried by a twelve-member jury and that such right must be waived by the defendant “in the manner prescribed by law.” Thus, the Byrd Court concluded that Act 592 violated art. 2, § 7 by effectively eliminating the waiver requirement and leaving the matter to the judge’s discretion.
Since Act 592 was declared unconstitutional, sections lb-32-202 and -203 remained viable as they existed prior to the enactment of Act 592. Byrd, 317 Ark. 609, 614, 879 S.W.2d 435, 438. Prior to Act 592, section 16-32-202 provided for trial by jury of less than twelve members only upon agreement of the parties. Rules 31.1 through 31.5 of the Arkansas Rules of Criminal Procedure establish the process by which a defendant may waive his right to trial by jury. According to those rules, except in misdemeanor cases where only a fine is imposed by the court, a defendant must waive his right personally either in writing or in open court and the waiver must be assented to by the prosecutor and approved by the court; a verbatim record of the waiver is required.
Our case law has been clear for more than a century
that a defendant’s failure to object to the denial of the right to trial by jury does not constitute a waiver of that right. Warwick v. State, 47 Ark. 568, 2 S.W. 335 (1886). In every criminal trial where there is a right to trial by jury, the court should proceed as if there will be a jury trial, and it is the court’s burden to ensure that, if there is to be a waiver, the defendant waives her right to trial by jury in accordance with the Arkansas Constitution and Rules of Criminal Procedure. Calnan, 310 Ark. 744, 841 S.W.2d 593. In short, there was no waiver in this case in the manner prescribed by law, and appellant’s case must therefore be reversed and remanded.
The state contends that appellant has not preserved her argument for appellate review. We must reject the state’s responsive argument on the basis of the Winkle case. The facts of Winkle are remarkably similar to the present case. In both cases, neither the appellants nor their counsel objected to the violation of their jury trial right. In Winkle, this court stated that denial of the right to trial by jury in a criminal case, without the requisite waiver in accordance with the law, is a serious error for which the trial court should intervene, and is therefore an exception to the contemporaneous objection rule. Winkle, 310 Ark. 713, 717, 841 S.W.2d 589, 591 (citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)).
The state contends Winkle is distinguishable from the present case because it involved a bench trial instead of a trial by jury. We find Byrd forecloses the possibility of affirming this case based on the state’s asserted distinction. Byrd states unequivocally that art. 2, § 7 clearly contemplates that the right to trial by jury means a right to trial by a twelve-member jury. Byrd, 317 Ark. 609, 612, 879 S.W.2d 435, 437.
The state cites Ford v. State, 222 Ark. 16, 257 S.W.2d 30 (1953), in support of its contention that the contemporaneous objection rule applies to this case. It is true, as the state contends, that Ford did dispose of the twelve-member jury argument by applying the contemporaneous objection rule. However, that rule was applied in Ford in the context of an invited error, inasmuch as Ford not only failed to object to being tried by a jury of less than twelve members, but agreed in open court to be so tried. There was no such agreement or waiver by appellant in the present case. Finally, two civil cases cited by the state as inconsistent with the result we reach today are not so. In Venable v. Becker, 287 Ark. 236, 697 S.W.2d 903 (1985) and Mode v. Barnett, 235 Ark. 641, 361 S.W.2d 525 (1962), this court found that valid waivers occurred in the manner prescribed by law; specifically, in the manner prescribed by ARCP Rule 38 and the former statute which Rule 38 superseded, Ark. Stat. Ann § 27-1743.
Therefore, we conclude, given the absence of a waiver, appellant’s argument that she was denied her right to trial by jury may be raised without a contemporaneous objection. We are well aware of the view expressed by the state that some abuse of the criminal justice system could result from our construction of the Arkansas Constitution and the Arkansas Rules of Criminal Procedure. However, as the Arkansas Court of Appeals recently and accurately observed, “this may be the price the judicial system must pay to ensure that a defendant is not deprived of his fundamental constitutional right to a trial by jury.” Reaser v. State, 47 Ark. App. 7, 11, 883 S.W.2d 851, 854 (1994).
As for appellant’s Batson argument, we first observe that the record is insufficient to demonstrate error. We do not presume error, and it is therefore appellant’s burden to produce a record sufficient to demonstrate error. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987). The record on appeal is confined to that which is abstracted. Id. The failure of the record to demonstrate error is perhaps due to the lack of attention that was given the Batson challenge by the parties and the trial court. Appellant’s counsel created confusion by using the term “jury pool” loosely. The record does not clearly indicate whether counsel was referring to the venire or the petit jury that tried this case. The prosecutor’s proffered racially-neutral explanation of “past performance” is painfully lacking in detail. The trial court’s cursory disposition of appellant’s challenge completely overlooked one juror the state had struck. Most importantly, the record does not disclose the total number of African-American jurors in the venire, the number of African-Americans who were seated on the petit jury, and whether any questions were asked during voir dire, be they racially-based or racially-neutral.
The order of conviction is reversed, and the case is remanded for a new trial.
Jesson, C.J., Glaze and Brown, JJ., dissent. | [
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David Newbern, Justice.
Andrew Comer died in 1951. In his will he devised 160 acres of land as follows: “I give and devise unto my niece, Elizabeth Swanson, for her life, with remainder at her death to Lester Mann for his life, and then unto his bodily heirs, or if no bodily heirs, then to Claude Mann in fee simple.” Claude Mann died in 1954. Lester Mann died without bodily heirs in 1989. Elizabeth Swanson died in 1992. Claude Mann’s heirs, the appellees, sued Andrew Comer’s heirs, the appellants, and asked for a declaratory judgment interpreting the devise and for a decree quieting title. The Chancellor awarded summary judgment to the Mann heirs. He held, attempting to ascertain Mr. Comer’s intent from the four corners of the will, that Claude Mann’s interest was a vested fee simple remainder subject to defeasance. As the defeasance did not occur, the Mann heirs prevailed.
The Comer heirs contend Claude Mann’s interest was a contingent remainder alternative to the one devised to the bodily heirs of Lester Mann. They say the land comes to them due to their reversionary interest because neither contingent remainder vested. We agree with their argument and reverse.
Had the devise been to Elizabeth Swanson for life with the remainder to Lester Mann worded, “to Lester Mann and the heirs of his body,” Lester Mann would have had a fee simple absolute subject to the life estate in Ms. Swanson. Pickens v. Black, 318 Ark. 474, 885 S.W.2d 872 (1994); Bowlin v. Vinsant, 186 Ark. 740, 55 S.W.2d 927 (1933). In view, however, of the fact that the devise to Lester Mann was, “for his life, and then unto his bodily heirs,” it is clear that the Pickens and Bowlin cases do not apply for the intent of the devisor was to limit Lester Mann’s interest to that of a life estate.
A remainder which is dependent upon a contingency which may not arise or which is granted to a person not in existence and who may not come into existence is contingent. See Fletcher v. Hurdle, 259 Ark. 640, 536 S.W.2d 109 (1976); Wise v. Craig, 216 Ark. 144, 226 S.W.2d 347 (1949). Thus, neither Claude Mann nor the bodily heirs of Lester Mann can be said to have had a vested remainder. As Lester Mann died without issue but Claude Mann died with heirs who could succeed to the “fee simple” granted to him in remainder, the question becomes whether Claude Mann’s heirs have an interest which vested despite the fact that Claude Mann did not survive the life tenant, Elizabeth Swanson.
The Comer heirs argue Claude Mann’s heirs have no interest because the Fletcher and Wise cases hold that an alternative contingent remainderman, such as Claude Mann, takes no interest if he does not survive the preceding life tenant.
The cases cited in response by the Mann heirs are Cox v. Danehower, 211 Ark. 696, 202 S.W.2d 200 (1947), and Bell v. Gentry, 141 Ark. 484, 218 S.W. 194 (1920). In the Bell case, the devise of the testator was A to his widow for life or until her remarriage and upon her decease or remarriage to “my children and their bodily heirs in the following manner: . . .” Thereafter the testator named his two children and specified the lands each was to receive. We held that, upon the death of the widow, each child took the land specified in fee, the remainder having been fixed “when the remainder was cast.” In an obiter dictum we said, “Had they [the children] or either of them died in the lifetime of their mother, their bodily heirs would have taken the fee; and these bodily heirs would have taken as devisees under the will . . . they being special, or bodily heirs, in esse, when the event happened upon which the remainder was to vest, that is the death of the testator’s widow.”
In the Cox case, the testator devised land to his son, Joseph Cox for life and at death to the heirs of his body, but if Joseph Cox should die without bodily heirs, then to “brothers and sisters and the heirs of their bodies.” Joseph Cox died without bodily heirs, and two of his siblings predeceased him. The heirs of the siblings living at the time of Joseph Cox’s death claimed the heirs of the siblings who predeceased Joseph Cox had no interest in the land. On the basis of the obiter in Bell v. Gentry we held the heirs of the siblings who had predeceased Joseph Cox took their parents’ shares per stirpes.
To the extent that Bell v. Gentry may have been applicable in the Cox case, it was because the heirs seeking to recover were “fixed,” and they were “special heirs” rather than the general ones who claim pursuant to the grant to Claude Mann in this case. Here we have nothing more than the “general” heirs of Claude Mann seeking to recover an interest which, according to Fletcher v. Hurdle, supra, and Wise v. Craig, supra, did not vest because the person to whom a contingent interest in the land was devised predeceased the life tenant.
Cox v. Danehower is at least ostensibly distinguishable on the basis that, as in Bell v. Gentry, the heirs were “special” and in esse rather than “general” heirs yet to be determined. We distinguished the Fletcher case and the Cox case in Pickens v. Black, supra, on the basis of the specific language of the grants.
While it was appropriate for the Chancellor to look to the four corners of the will to determine the intention of the testator, as we said in the Fletcher case, the purpose of doing so must be to ascertain not what was in the mind of the testator but what his words meant. The words of the testator must be tested against the cases which have expressed rules of property such as the one found in the Fletcher and Wise cases. The Chancellor properly declined to consider testimony about the intent of the testator.
Our holding is that Claude Mann’s contingent remainder ceased to exist when he predeceased Elizabeth Swanson. We remand the case to the Chancellor for an order consistent with this opinion.
Reversed and remanded. | [
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Bradley D. Jesson, Chief Justice.
This case presents a question under the Teacher Fair Dismissal Act, codified at Ark. Code Ann. § 6-17-1501 to 1510 (Repl. 1993). Appellant Patricia Love claims on appeal that she was entitled to notice that her contract with the district would not be renewed for the 1993-94 school year. The trial judge determined that Ms. Love was not a “teacher” as contemplated by the Fair Dismissal Act and therefore not entitled to notice of nonrenewal. We reverse on that point and hold that Ms. Love was a teacher under the language of the Act. Since the trial judge did not expressly rule on the amount of compensation to which Ms. Love is entitled, we remand to allow that determination.
On December 11, 1992, district superintendent Russell Johnson wrote a memo to the school board indicating the need to hire a “half-time, long-term substitute” for the sixth grade at Smack-over Elementary School. The full-time teacher was being reassigned to new duties for half a day as assistant principal. The board met on December 16, 1992, and, according to minutes of that meeting, voted that the district hire a “half-time, long-term replacement.”
Ms. Love, who has a degree in elementary education, had been student teaching at Smackover Elementary. Upon being informed that the half-time teaching position was available, she visited the office of superintendent Johnson on December 19, 1992, and signed a contract. The contract provided that the district, by a majority vote of directors present at the December 16 meeting, agreed to employ Ms. Love as a “half-time elementary teacher” for a period of 89 days at a salary of $4,005.00. The contract further provided as a condition of employment that Ms. Love have a state teaching certificate. The contract was signed on behalf of the district by use of rubber stamp signatures of the board president and secretary.
During the eighty-nine days of her contract, Ms. Love signed in daily on the teacher, rather than the substitute, sign-in sheet. She was given a form for the teacher retirement program, her own lesson-plan book, and sick leave. Other teachers considered her a member of the teaching staff. On occasion she also substituted for other teachers on her afternoons off for which she was paid by separate check.
The contract period was completed in June of 1993. Ms. Love learned in July that she would not be rehired for the position in the coming year. In April of 1994, she filed suit in Union County Circuit Court. She alleged that, because she had not received notice of nonrenewal by May 1, as mandated by Ark. Code Ann. § 6-17-1506(a) (Repl. 1993), her contract was automatically renewed.
A hearing was held at which superintendent Johnson and school board members testified that they had only intended to hire a long-term substitute, not a full-fledged teacher. The trial court agreed with the district, finding that Ms. Love was not a teacher covered by the Fair Dismissal Act. In ruling from the bench, the court found that the district had no intention of hiring anyone other than a substitute and that those portions of the contract which indicated otherwise were simply clerical errors.
The term “teacher” is defined simply and precisely by the language of the Act. Any person, other than a superintendent or assistant superintendent, employed in an Arkansas public school district, who is required to hold a state teaching certificate as a condition of employment, is a teacher. Ark. Code Ann. § 6-17-1502(a)(l) (Repl. 1993). Ms. Love was employed by the district and required to be certified. She therefore met the Act’s two criteria and was, for its purposes, a teacher. It does not matter if she was denominated a part-time teacher, a half-time teacher, or a replacement. The Act makes no such distinction in its definition. It simply provides that if any person is employed by the district and required to be certified, that person is a teacher, and the applicable provisions of the Act are triggered. See Western Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). In that case, we considered the certification requirement in determining whether a coach was a teacher under the Act.
Arkansas Code Annotated § 6-17-1506(a) (Repl. 1993) provides that every contract between a teacher and the board shall be renewed for the next school year unless the teacher is notified of nonrenewal by May 1 of the contract year. It is undisputed that Ms. Love did not receive this statutory notice. Therefore she is entitled to the remedies provided by the Act.
The district argues that Ms. Love’s contract should be void because there was either a mistake among the parties as to her status or that Ms. Love knew she was only to be a substitute. There is disputed evidence on this point. But ultimately, what the parties thought about the longevity or renewability of the contract is of little consequence in this instance. Arkansas law requires that school districts strictly comply with the notice provisions of the Act. Ark. Code Ann. § 6-17-1503 (Repl. 1993); Hamilton v. Pulaski County Sp. Sch. Dist., 321 Ark 261, 900 S.W.2d 205 (1995). As a matter of law, once Ms. Love was employed by the district and required by the terms of her con tract to be certified, she was covered by the Act.
The district further argues that superintendent Johnson did not have the authority to enter into the contract with Ms. Love. This argument is based upon the provisions of Ark. Code Ann. § 6-13-620(4)(A) (Repl. 1993), assigning to school boards the power to employ and make contracts with teachers. The school board, it is claimed, did not in this instance hire Ms. Love because Ms. Love’s name was not mentioned at the board meeting or in the minutes. It is true that Ms. Love was not hired at the school board meeting by name. However, the board approved a recommendation that a half-time replacement be hired. Ms. Love was employed for that position three days later. The superintendent executed this decision using a standard teacher form contract bearing the rubber stamped signatures of the board president and secretary. (The use of these stamped signatures was authorized by the board.) Nothing in the law requires the board to actually name the person it purports to employ. In fact, superintendent Johnson and board members testified that, while the board, as a matter of custom, usually designated the teachers it would hire by name, there were exceptions. In short, Ms. Love had a written contract signed by board members containing provisions which entitled her to assert her rights under the Teacher Fair Dismissal Act.
Because the trial judge ruled that Ms. Love was not covered by the Act, she did not have the opportunity to address the question of damages. We remand the case so that this determination can be made in light of our ruling. See Carson v. Hercules Powder Co., 240 Ark. 887, 402 S.W.2d 640 (1966).
Reversed and remanded.
Brown and Roaf, JJ„ dissent. | [
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Per Curiam.
Appellant, Jeffery L. Williams, by his attorney, Jeff R. Conner, has filed a motion for a rule on the clerk and a petition for writ of certiorari to complete the record. Conner states by motion that, although he timely filed a notice of appeal from judgment entered September 26, 1995, pursuant to reversal and remand by this court, and although he requested the court reporter to prepare the record in this case, the ninety days for filing the record has expired and, due to mistake on his part, he has not filed the record or sought an extension.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant relief. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). We therefore grant the requested relief and, consistent with Ark. Sup. Ct. R. 3-5, direct the circuit clerk and court reporter to complete and certify the record by March 27, 1996.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
On June 12, 1995, Cleotis Willis filed a notice of appeal from his criminal conviction. Rule 5(a) of the Arkansas Rules of Appellate Procedure provides that a record shall be filed with this Court within 90 days of the filing of the first notice of appeal unless the time is extended by the trial court. Subsection (b) of the Rule provides that the trial court may extend the time for filing the record with this Court if the order of extension is entered before the expiration of the original filing period.
On September 11, 1995, which was the 90th day from the date the notice of appeal was filed, the Trial Court signed an order extending to October 11, 1995, the time for filing the record. Mr. Willis’s counsel, Donnie Gillaspie, attempted to lodge the record with this Court on October 11, 1995. The Clerk refused the record because the Trial Court had not acted to extend the time for lodging the record within the 90-day period prescribed by Rule 5. Mr. Gillaspie contends that, in view of the fact that both he and the circuit clerk’s office received facsimile copies of the Trial Court’s order extending the time on September 11, 1995, compliance with the Rule was had. Rule 5(b) provides, however, that the order of extension must be “entered” within .the 90-day period. The order was not entered and file marked by the Circuit Clerk until September 12, 1995; therefore, it was not timely.
Mr. Gillaspie has admitted, as an alternative to his argument that the record was lodged in a timely manner, that he was negligent in not having the record filed on time. The motion for rule on the clerk is granted, and a copy of this opinion will be forwarded to the Committee on Professional Conduct. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). | [
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David Newbern, Justice.
This is a Teacher Fair Dismissal Act case. The Act is found at Ark. Code Ann. §§ 6-17-1501 through 6-17-1510 (Repl. 1993). Garry Lester appeals the decision of the Faulkner County Circuit Court which affirmed the decision of the Mount Vernon-Enola School Board (the Board) to terminate his teaching contract. Mr. Lester contends the Board’s hearing in response to his request to review the Superintendent’s termination recommendation was not held within the time period prescribed by the Act. Mr. Lester made additional arguments, but as we agree with his point on the timing of the hearing, we need not address them. We reverse and remand the case for further proceedings.
The incident which led to Mr. Lester’s termination occurred on Friday, August 26, 1994. It involved the use of inappropriate language by Mr. Lester during a homeroom class period he supervised.
During the weekend following the incident, Mr. Lester learned that parents of students who had been present during his admitted indiscretion and the superintendent, Mr. Bakker, did not approve of his conduct. On Friday night, a parent confronted Mr. Lester and expressed his displeasure with the language that was used during his child’s homeroom class. Then, on Sunday night, Mr. Lester received a call from Mr. Bakker, who informed him he was not to report for his bus driving or for teaching duties. Mr. Bakker also told Mr. Lester to report to his office on Monday.
Mr. Lester met with Mr. Bakker and Mr. Guffy, the principal of the high school on Monday, August 29, 1994. He was informed of the complaints received from parents concerning the “joke” he told, and that as a result, they were going to recommend the termination of his contract to Board. On September 2, 1994, Mr. Lester received the following written notice from Mr. Bakker:
You are hereby notified that you are suspended with pay, effective immediately and that I intend to recommend that your contract with the Mount Vernon-Enola School District be terminated. The reasons for my recommendation are as follows: The use of inappropriate language to teenage female students.
You have the right to a hearing on this recommendation before the school board. If you desire a hearing, you must make a request for same, in writing to may office, within thirty days of your receipt of this letter. The hearing will be held at the next regular school board meeting following the receipt of your request for a hearing, unless a later date is agreed to in writing.
If you request a hearing, you have the right to be represented by the person of your choice, and if you so request in writing, a record of the hearing will be preserved and a transcript will be provided to you at no cost.
After receiving the written notice from Mr. Bakker, Mr. Lester talked with each of the five members of the Board to ascertain how each would vote on Mr. Bakker’s recommendation. Mr. Lester believed at least three would vote against termination. Mr. Lester testified that the President of the Board, Owen Leach, recommended that in light of the three favorable votes, the hearing should take place as soon as possible so Mr. Lester could get back to the classroom.
Mr. Lester sought the advice of his brother, Bobby Lester, Superintendent of the Pulaski County Special School District. Bobby Lester testified he told his brother he should hire an attorney and take the issue to the Board. Bobby Lester also advised his brother to wait the full 30 days allowed by the Act before requesting a hearing, as that would allow time to continue receiving pay and to attempt to resolve differences with the parents of his students.
Despite Bobby Lester’s advice, on September 4, 1994, Garry Lester hand-delivered a letter to the Board in which he requested a hearing before the Board “as soon as possible.”
On September 8, 1994, four days after Mr. Lester gave notice that he wanted a hearing, a special meeting of the Board was called for a hearing on Mr. Bakker’s recommendation. The Act requires that any such hearing “shall take place not less than five (5) days nor more than ten (10) days after the written request has been served on the board, except that the teacher and the board may, in writing, agree to a postponement of the hearing to a later date:. . .” § 6-17-1509(c)(l). The Board voted 3-2 to uphold Mr. Bakker’s recommendation. Mr. Lester appealed to the Circuit Court where he argued that the action of the Board violated the law because the hearing was held too early.
In affirming the Board’s decision, the Court recited the following conclusion, among others:
5. Plaintiff waived his right to strict compliance for a hearing to be held not less than 5 (five) nor more than 10 (ten) days when he requested the hearing to be held as soon as possible. No objection was made and the Plaintiff was not prejudiced by the action of the district. .
Mr. Lester correctly argues that since 1989 the General Assembly has required strict compliance with the Teacher Fair Dismissal Act. Holding the hearing fewer than five days after his request was submitted constituted failure to comply strictly with § 6-17-1509(c)(1).
Prior to 1989, we recognized that “substantial compliance” with the Act was sufficient. See Murray v. Alteimer-Sherrill Public Schools, 294 Ark. 403, 743 S.W.2d 789 (1988). In 1989, however, the General Assembly enacted Act 625, which amended the Act and added this sentence to § 6-17-1503:
A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies.
See also Western Grove School District v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994).
Mr. Lester contends that, by finding that he waived the statutory time period by requesting a hearing “as soon as possible,” and by finding that he was not prejudiced by the timing of the hearing, the Trial Court engaged in a substantial compliance analysis, which contravenes the intent of the General Assembly. In addition to citing Mr. Lester’s letter, the Board notes that Mr. Lester made no objection to the timing of the hearing.
In other contexts in which the General Assembly has stated a strict compliance requirement it has been held that such compliance may be waived. Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993); Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976). The question here, however, is whether waiver occurred. The evidence does not support the Trial Court’s finding of waiver of the minimum (5-day) period between request and hearing.
In every case of which we are aware, we have held that a waiver of a right requires knowledge of that right on the part of the party alleged to have waived it. In Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980), we quoted from Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978), our standard statement on the subject as follows:
Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely on that right. . . . The relinquishment of the right must be intentional. . . .
That case involved waiver of the right to alimony by failure to request it. Other cases in which we have uttered the same or similar language in various contexts include, Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993); Worth v. Civil Service Comm’n, 294 Ark. 643, 746 S.W.2d 346 (1988); and Mobley v. Estate of Parker, 278 Ark. 37, 642 S.W.2d 883 (1982).
While there is evidence that Mr. Lester knew of some, if not most, of his rights under the Act, we have carefully combed the record for any evidence that he was aware of his right to have the hearing no fewer than five days after his request. We found no such evidence.
We might speculate that Mr. Lester would have wanted the hearing held as soon as possible even if he had been aware of his right to have it no fewer than five days after his request. A holding to that effect or a holding that the Trial Court’s finding that there was a waiver implied the necessary knowledge would, however, completely evade the issue and subvert the General Assembly’s strict compliance requirement and obvious intention that a “cooling off’ period occur in these cases. It would also mock our earlier decisions requiring evidence of knowledge as a predicate for waiver. The same would be true if we based affirmance on the failure of Mr. Lester to object to violation of a rule of which there is no evidence he was aware. Absent evidence of the requisite knowledge on Garry Lester’s part of the right purportedly waived, we cannot, in accordance with our precedent, hold that he waived it.
We remand the case to the Trial Court for entry of an order consistent with this opinion.
Reversed and remanded. | [
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Robert L. Brown, Justice.
The appellant in this case, Lannie Trull, was convicted of aggravated robbery and sentenced to life imprisonment. He appeals on two grounds: that his statement to a police officer was involuntary, and that a comment by a police officer at trial concerning a “pattern” of robberies warranted a mistrial. We disagree, and we affirm the judgment.
On August 23, 1994, at about 10:00 p.m., the Little Caesar’s Pizza restaurant in West Memphis was robbed. The robber was wearing a mask, a ski cap, and gloves and was armed with a pistol. West Memphis Police Officer Shane Griffin was on his way home when he heard that the robbery had occurred in the vicinity. While driving in the area, he spotted a person carrying a black bag and gave chase. In the bag were a mask, a pillow case, a revolver, and loose cash. He arrested the person, who was Trull, and gave him the Miranda warnings. At a pre-trial Denno hearing, Officer Griffin testified that Trull told him: “Well, I guess it’s finally over.”
At the same Denno hearing, West Memphis Police Officer Anthony Bradley testified that after he arrived at the crime scene, he heard Officer Griffin read Trull his Miranda rights. He testified that Trull then told him (Bradley) that he was glad it was finally over. Trull went on to relate to Officer Bradley that he had performed a series of robberies because he had lost his job and needed money.
At the conclusion of the Denno hearing, the trial court suppressed the statement made to Officer Griffin because of the discrepancy between the statements of the two officers as to when the Miranda rights were read to Trull and as to what transpired thereafter. The court found that Officer Bradley was a credible witness and that Trull’s statement to Bradley was voluntary.
At the trial that followed, Officer Bradley testified that Trull told him that he was relieved that he had been caught, that he was glad it was over, and that he had committed the robbery because he had lost his job and needed the money. Also at the trial, Officer Griffin testified on direct examination:
We’ve had, over the past few months, quite a few robberies and stuff, and from everything we’ve, I’ve found out before, we could tell a pattern that was running, usually some. . .
Defense counsel objected and moved for a mistrial. The trial court denied the motion and offered to give a curative instruction to the jury. Defense counsel asked that this not be done. Trull took the stand in his defense and denied ever speaking to Officer Bradley. The verdict of guilty was returned. At the sentencing phase, nine prior convictions out of Tennessee were introduced into evidence pursuant to Act 535 of 1993, now codified at Ark. Code Ann. § 16-97-103 (Supp. 1993). The sentence of life imprisonment was imposed.
Trull first argues that because the trial court ruled that the statement given to Officer Griffin was inadmissible due to doubtful Miranda warnings, the statement given to Officer Bradley should also be suppressed because the statement to Officer Bradley was based on the same Miranda warnings. On appeal, this court must make an independent determination of the voluntariness of a confession. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). But in doing so, “we review the totality of the circumstances and will reverse only when the trial judge’s finding of voluntariness is clearly against the preponderance of the evidence.” Weaver v. State, 305 Ark. 180, 187, 806 S.W.2d 615, 619 (1991). Conflicts in the testimony are for the trial court to resolve, and again, we will not reverse unless the trial court’s finding is clearly erroneous. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994).
Trull’s argument does not necessarily hold true, and he cites no authority to support it. The fact that the trial court found that the State had not met its burden of proving the voluntariness of the alleged statement to Officer Griffin does not automatically disparage the statement that Officer Bradley contends was made to him. See Oregon v. Elstad, 470 U.S. 298 (1985). In Elstad, the Court held that the Fifth Amendment did not require the suppression of a statement, made after proper Miranda warnings and a waiver of the same, solely because a police officer had obtained an earlier voluntary but unwarned statement from the same defendant. Here, Officer Bradley testified that he was present when Officer Griffin read Trull his Miranda rights. He further testified that Trull’s statements to him followed the Miranda warnings. Trull argues that Officers Griffin and Bradley were inconsistent as to when Griffin read Trull his rights. Even if this is so, the trial court found Officer Bradley to be a credible witness and Trull’s statement to Bradley to be voluntarily made after appropriate Miranda warnings had been given. There is no basis for a conclusion by this court that the trial court was clearly wrong in finding Trull’s statements to Officer Bradley to be voluntary and, therefore, admissible.
For his second point, Trull maintains that the trial court erred in refusing to grant a mistrial after Officer Griffin’s reference to a “pattern” of robberies. We note initially that Officer Griffin did not tie Trull directly into the robberies to which he alluded. The trial court also referred to this fact, when it denied the motion for mistrial. Despite this, the trial court did offer to give a curative instruction, which defense counsel refused. We have often commented on the drastic nature of the mistrial remedy. See, e.g., Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995); Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994).
A mistrial is appropriate only when the possible prejudice cannot be cured by some admonition or curative instruction to the jury. See Furlough v. State, 314 Ark. 146, 861 S.W.2d 297 (1993). In Furlough, a testifying police officer referred to the defendant as a suspect in other robberies. The trial court admonished the jury to disregard these references, and we affirmed the defendant’s judgment of conviction and held that the admonishment was sufficient. Here, defense counsel refused a curative instruction offered by the trial court. That was defense counsel’s choice. We find no abuse of discretion flowing from the trial court’s handling of this matter or in its ruling on this point.
The record in this case has been reviewed for other reversible error in accordance with Supreme Court Rule 4-3(h), and none has been found.
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Tom Glaze, Justice.
In March of 1993, appellee Sherman advertised the sale of her 1983 Oldsmobile in the newspaper. Her ad asked for $2,500, but she hoped to get $2,200.00, which is what she believed the car was worth. Appellant Ge Zhan responded to Sherman’s ad. Sherman permitted Zhan to test drive the car which was parked in Sherman’s driveway. The car was on a slope and when Zhan entered the car, she pulled the gear shift out of park before turning on the engine. As a consequence, the car rolled down the driveway where it ran into someone’s fence. The fence and the right rear quarter panel of the car were damaged. A Little Rock police officer, Tommy Hudson, came to investigate the accident and while there, pulled the car out of the fence. As a result of Zhan’s actions, Sherman paid for damages to the fence and ended up selling her damaged car to a third party, Herb Peach, for 1,000.00, less $200.00 which Sherman agreed to pay for repairing the car’s radiator.
Sherman later filed suit against Zhan, alleging Zhan’s negligence had caused her damages in the amount of $1,334.36. A bench trial resulted, and after hearing the testimony of Sherman, Zhan, Police Officer Hudson and Peach, the trial court found Zhan’s negligence caused Sherman damages in the amount of $800.00 to the car and $134.36 to the fence. The trial court also awarded $189.64 to Sherman for costs. On appeal, Zhan does not question the trial court’s finding of negligence, but instead claims the trial court erred in calculating Sherman’s damages in the amount of $989.64 and arguing the amount was based upon speculation and inadmissible hearsay. Zhan also argues the trial court erred in awarding costs, stating the amount awarded is not supported by the record.
In her first argument, Zhan recognizes that, under Arkansas law, the measure of damages to automobiles is the difference in the fair market value of the automobile before and immediately after the accident. See Ark. Code Ann. § 27-53-401 (1987); AMI Civil 3d 2210 (1989); Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984). This court has also held that, when proving damages for property that was not a total loss, the difference in fair market value may be established by the reasonable cost of repairing the damaged property. Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992). Here, Zhan concedes Sherman showed her car was worth $2,200.00 before Zhan damaged it. However, Zhan’s contention is that Sherman failed to prove the value of her car after the accident. Zhan is wrong.
This court has consistently allowed the property owner to give his or her opinion of the value of damaged property. Hickman v. Carter, 315 Ark. 678, 870 S.W.2d 382 (1994); Minerva Enter., Inc., 308 Ark. 291, 824 S.W.2d 377. Here, Sherman testified that the after value of her car was $1,000.00, making the difference in the fair market value or loss to be $1,200.00 ($2,200.00 minus $1,000.00). The trial court questioned Sherman’s after-value figure, suggesting the evidence reflected that her damaged car was worth more than $1,000.00. In fact, the trial court entered judgment in the amount of $800.00, which reflects a higher after value than Sherman gave her damaged car. Sherman never questioned the trial court’s reduction of Sherman’s proposed $1,200.00 damage amount; instead, it is Zhan who complains that the damages were awarded in error.
Zhan argues that it is unclear how the trial court arrived at its $800.00 figure, and therefore the amount was undoubtedly based upon speculation. In sum, Zhan asserts Sherman did not present sufficient evidence of the fair market value of the car. Additionally, she says the court committed reversible error when it allowed Sherman to introduce inadmissible hearsay, a repair estimate, which reflected the cost to repair Sherman’s car was $1,077.09.
We would initially point out that regardless of the inadmissibility of the repair estimate introduced by Sherman, this court has held that a nonjury case should not be reversed because of the admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made. Butler v. Dowdy, 304 Ark. 481, 803 S.W.2d 534 (1991). First, the repair estimate amount was only $122.91 more than the competent value testimony given by Sherman; thus that estimate evidence cannot be said to have affected the trial court’s findings or award of damages any more than Sherman’s testimony.
We next mention that, besides Sherman’s owner-value testimony concerning damages, Officer Hudson testified, without objection, that he believed Sherman’s car had been damaged in the approximate amount of $200.00. Peach, the purchaser of the damaged vehicle, concluded he believed the car was worth the $1,000.00 he was willing to pay for it. In sum, the evidence reflects the car damages ranged from as much as $1,200.00 and as little as $200.00.
Our cases give the factfinder, jury or trial court, some latitude in its decision in awarding damages when arriving at a fair market value figure and have not required exactness on the proof of damages. See Lancaster v. Schilling Motors, Inc., 299 Ark. 365, 772 S.W.2d 349 (1989); Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980); see also Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). If it is reasonably certain that some loss has occurred, it is enough they can be stated only proximately. Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992). We conclude that is the situation here and hold the competent evidence supports the trial court’s award of $800.00 for the car’s damages.
In presenting her first argument, Zhan also complains about the trial court’s ruling, allowing Sherman to introduce an invoice or bill, reflecting the fence damage amounted to $134.36. Again, Zhan’s complaint is that the bill was inadmissible, prejudicial hearsay requiring reversal. In making this argument below and on appeal, Zhan ignores Sherman’s unobjected to testimony that she had paid $134.36 for the repair of the fence. Based on this competent evidence, we affirm the trial court’s award for the damaged fence.
For her second point, Zhan argues that, at the close of the trial below, the trial court ordered Zhan to pay Sherman’s costs in the amount of $44.24, including filing fee and service costs. These costs were mentioned during trial. However, when the trial court’s judgment was entered, it awarded $189.64 in costs. Based on the record, Zhan submits she is obligated to pay only the filing fee cost because Sherman waived service costs at trial and limited her cost request to the filing fee.
Under ARCP Rule 54(d), costs authorized by statute or by the rules of civil procedure shall be allowed to the prevailing party if the court directs, unless a statute or rule makes an award mandatory. In construing this rule, our court has held that Rule 54(d) gives the trial judge discretion in awarding authorized costs. Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988).
We affirm the trial court’s award of costs because Zhan could have raised this issue after the judgment was entered. See ARCP Rule 52 (a) and (b). If Zhan believed the trial court erred in its cost award, she could have requested the judgment be amended to comport with the proof and law. Because Zhan failed to raise that issue below, we will not consider it on appeal. Oglesby v. Baptist Medical Sys., 319 Ark. 280, 891 S.W.2d 48 (1995).
The radiator was not a repair required as a result of Zhan’s accident. | [
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Per Curiam.
The appellant pleaded guilty to two counts of delivery of a controlled substance on March 3, 1994. He was sentenced to a total of twenty-two and one-half years imprisonment. The sentence was imposed on March 3, 1994. Almost a year later, on February 22, 1995, the appellant filed a petition to correct an illegal sentence pursuant to Ark. Code Ann. § 16-90-111. The petition was denied and the appellant brings this appeal.
The trial court’s denial of relief is affirmed because the appellant’s petition was untimely. Criminal Procedure Rule 37.2(b) provides in pertinent part that all grounds for post-conviction relief, including claims that a sentence is illegal or illegally imposed, must be raised in a petition under Rule 37. See Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994). Arkansas Code Annotated § 16-90-111 (Supp. 1991), which permits the trial court to correct a sentence imposed in an illegal manner within one-hundred-twenty days after the receipt of the affirming mandate of the appellate court and which permits an illegal sentence to be corrected at any time is in conflict with Criminal Procedure Rule 37. Criminal Procedure Rule 37.2(c) provides that if the conviction was obtained on a plea of guilty, a petition is untimely if not filed within ninety days of the date of entry of judgment. Since the petition was not filed until nearly a year after the judgment, it was untimely. The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on an untimely petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Therefore, the appellant was not entitled to relief in circuit court.
This court has recognized a distinction between a petition for writ of habeas corpus and a petition for post-conviction relief under Rule 37. Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993); Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). A state writ of habeas corpus cannot be substituted for post-conviction relief. The writ of habeas corpus will be issued only when the commitment is invalid on its face or the committing court lacked jurisdiction. Mackey v. Lockhart, supra; Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989). This court in Waddle v. Sargent, supra, held that a defendant had the right to petition the trial court for a writ of habeas corpus based on the trial court’s alleged lack of jurisdiction even though his petition for a writ of habeas corpus was untimely filed.
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David Newbern, Justice.
Recently we released our opinion in Jones v. State, CR95-397 , affirming the conviction of Chad Eugene Jones of first-degree murder and second-degree battery. The State has filed a separate appeal arising from the same trial which was the subject of CR95-397. In its appeal brought pursuant to Ark. R. Crim. P. 36.10, the State asks that we declare the Trial Court erred in refusing to permit certain evidence tending to show that Mr. Jones was a member of a street gang known as “The Southwest Kings.” Rule 36.10(c) provides in part:
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 (60) days of filing the notice of appeal.
We disagree with the Attorney General’s conclusion that the correct and uniform administration of justice requires a review in this case, and we thus dismiss the appeal.
The Trial Court determined that the probative value of some of the evidence about Mr. Jones’s membership in a gang was outweighed by the danger of unfair prejudice. The ruling of the Trial Court concerning gang-affiliation testimony turned on a question of relevancy and the balancing test provided in Ark. R. Evid. 403. It was a determination based on the particular facts of this case, and thus we cannot say that the uniform administration of the criminal law would require a declaration of error even if error were found in the application of Rule 403.
Mr. Jones was one of the individuals charged in the shooting death of Jason Hatcher and the wounding of Tim McGarrity in Sherwood on December 18, 1993. The State produced evidence that on the evening of December 17, 1993, Mr. Hatcher and his friends went to a basketball game at North Little Rock High School. Following the game, the group went to a place called “Fones,” which is apparently a dead-end road where teenagers frequently go to “hang out.” After spending some time at Fones, the group proceeded to Parkway Music Studio in North Little Rock, where a party was being held.
After leaving the party, Jason Hatcher and his friends proceeded toward Taco Bell in Sherwood, which shares a parking lot with a Harvest Foods store. The testimony showed the group used three separate vehicles and that each vehicle reached the parking lot at close to the same time. The first car to arrive at the parking lot was a white Subaru containing Casey Stalnaker, Tim McGarrity, and Clay Cochran. Mr. Hatcher was a passenger in one of the other vehicles that arrived shortly thereafter.
In the period between the arrival of the white Suburu and the vehicles containing Mr. Hatcher and his other friends, the occupants of the Subaru saw a white low-rider pickup truck parked by the pay phones in front of Harvest Foods. Although it is not entirely clear, it was suggested that the occupants of the pickup, Shan Messer and James Gross, had earlier made “gestures” at Jason Hatcher’s group at an intersection. Clay Cochran and Tim McGarrity walked over to Shan Messer and James Gross, and a fight broke out. By this time, the other members of Mr. Hatcher’s party had arrived, and a crowd had begun to form around the fracas.
After the fight had begun and the crowd of spectators had formed, a Blue Honda carrying Mr. Jones and others arrived on the scene. With the arrival of the Honda, a series of shots were heard. Although the testimony concerning these events varied, several witnesses testified they saw Mr. Jones standing outside the vehicle and holding an object. Casey Stalnaker, who remained in the Subaru during the incident, testified he saw Mr. Jones with a gun. Mr. Jones was also heard yelling, “I told you not to fuck with the Southwest Kings.” Tim McGarrity was wounded in his leg and Mr. Hatcher suffered a back wound which resulted in his death.
These events gave rise to the information filed against four defendants, including Mr. Jones. Because the State was unable to demonstrate conclusively which defendant shot Tim McGarrity and which shot Jason Hatcher, it proceeded on an accomplice theory against all four defendants. The State later amended its information to include a charge of engaging in violent criminal group activity against each of the defendants.
Prior to the trial, Mr. Jones moved in limine to prevent the State from introducing evidence of Mr. Jones’s alleged affiliation with the Southwest Kings. Subsequently, the State proffered the testimony of Mr. Jones’s former girlfriend and other youths who stated that they either knew of Mr. Jones’s membership in the gang or heard him proclaim his membership in a threatening manner at the party at Parkway Music Studio. At the conclusion of the proffered testimony, the Trial Court refused to admit gang-affiliation evidence and said, “this testimony, whatever, would be more prejudicial than probative. And I think there may be even some problems with the factual basis of this as well.” The ruling excluded the evidence of activity earlier in the evening suggesting Mr. Jones’s gang affiliation but permitted reference to Mr. Jones’s alleged statement about the Southwest Kings which occurred on the parking lot.
In its argument that the appeal should be allowed, the State cites a case in which we addressed, pursuant to Rule 36.10, the State’s cross-appeal concerning whether a dying declaration of a small child should have been admitted in evidence. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). The Trial Court had suppressed the child’s statement because “no one told him he was going to die.” We did not discuss in detail the propriety of the appeal. We concluded the child’s statement, made shortly before he died, about having been beaten by his mother’s fiance should not have been suppressed because there was evidence he suspected his impending death.
Also cited is State v. Browning, 206 Ark. 791, 178 S.W.2d 77 (1944), in which we entertained the State’s appeal of questions concerning admissibility of a confession of one accused of a crime. One of the questions in the Browning case was whether it was proper for the Trial Court to exclude a confession obtained by police authorities prior to the arraignment of the accused. We held the exclusion to have been improper.
In both cases the Trial Courts and we were concerned with direct, technical application of evidence rules. Neither presented the sort of balancing issue present here in the application of Rule 403 which provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
In the case now before us, the Trial Court made no sweeping decision about the admissibility or inadmissibility of evidence of gang membership of a criminal defendant. That is obvious from the fact that not all references to the Southwest Kings were excluded. Nor was there a technical interpretation of an evidence rule. Any decision we might make in response to the State’s appeal would have to address the Trial Court’s discretion in excluding evidence he apparently thought might result in unfair prejudice.
In State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994), the State attempted to appeal from a decision that a Department of Human Services food stamps fraud investigator was a law enforcement officer required to advise a suspect, in accordance with Arkansas Rules of Criminal Procedure 2.3, that she was free to leave his office after having been invited for an interview. We dismissed the appeal and said:
In short, an interpretation of the Criminal Rules with widespread ramifications is simply not at issue in this case. We have said the following in connection with a prior decision on the correct and uniform application of the law:
Where the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim P. 36.10.
State v. Mazur, 312 Ark. 121, 123, 847 S.W.2d 715, 716 (1993); quoting State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). Such is the situation before us now in this appeal.
The same is true here, therefore, we dismiss the State’s appeal.
Appeal dismissed.
Glaze and Corbin, JJ., dissent. | [
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Robert L. Brown, Justice.
Appellant Homer W. Durham appeals from a judgment awarded to appellee Arkansas Department of Human Services/Child Support Enforcement Unit in the amount of $16,621.20. The Arkansas judgment was the result of an Illinois judgment for child support arrearages which was entered in that state in 1975. It was subsequently revived in Illinois in 1992, and then registered in Arkansas in 1993. Durham contends that the chancellor erred in enforcing a judgment which had been revived in Illinois under Illinois’s 20-year statute of limitations rather than refusing to enforce the judgment under Arkansas law which limits commencement of actions on judgments to ten years after the cause of action accrues. We disagree with Durham’s analysis and affirm the judgment.
On July 20, 1971, appellant Durham and his wife, Linda Sue Durham (now Kautz), were divorced in Illinois. The divorce decree ordered Durham to pay $20 per week for each of the couple’s two children. According to a stipulation of facts entered into by the parties, Durham resided in Arkansas between May 7, 1971, and June 25, 1975. On July 9, 1975, Durham relinquished his parental rights in his children so that his former wife and her new husband could adopt them, which they did. At that time, further support obligations were terminated. Unpaid support arrearages totalling $7,600, however, had accumulated, and the Illinois court awarded Linda Kautz judgment in that amount on that same date. Pursuant to that judgment, Durham was ordered to pay $50 a week to reduce the judgment amount.
In 1992, Human Services attempted to enforce the judgment in Arkansas but learned that it had not been revived in Illinois. On September 18, 1992, the Illinois circuit court revived Kautz’s judgment against Durham by court order and extended the judgment until 2002. Human Services petitioned to register the revived Illinois judgment in the chancery court of Columbia County, Arkansas. On March 26, 1993, the chancellor ordered registration of the Illinois judgment but delayed enforcement of it until the matter could be further developed. On October 24, 1994, the chancellor entered judgment in the amount of $16,621.20 against Durham. The chancellor found that the 1992 Illinois judgment was valid and was not barred by the Arkansas statute of limitations and further found that the 20-year Illinois statute of limitations applied. The chancellor again granted the request for registration of the Illinois order and provided for enforcement of that judgment by execution and garnishment. On November 7, 1994, Durham filed a motion for new trial or amendment of judgment and primarily contended that the chancellor retroactively applied Act 468 of 1993, now codified as Ark. Code Ann. § 9-17-604 (Repl. 1993), in applying the Illinois statute of limitations. The motion was denied.
Durham’s sole point on appeal is that the chancellor erred in giving retroactive effect to Act 468 of 1993, which provides for application of the longer statute of limitations as between the law of the state issuing the support order (in this case, Illinois) and Arkansas. Act 468 became effective March 13, 1993, which was one day after the chancellor issued his letter opinion approving the registration of the Illinois judgment. Durham directs us to our caselaw that the General Assembly may not revive a cause of action previously barred by the existing statute of limitations. See Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). He argues that if the revival of the Illinois judgment and its registration in Arkansas were already barred as of March 13, 1993, under Arkansas’s ten-year statute of limitations, Act 468 could not be used to resurrect it.
The chancellor makes no reference to Act 468 of 1993 in his letter opinion, his order, or his judgment in this matter. Human Services, however, concurs with Durham that the chancellor relied on Act 468 and retroactively applied it to the registration of this foreign judgment. We agree that if the chancellor did indeed retroactively apply Act 468 so as to breathe life into a dormant judgment, this was an erroneous application of the law. But we further agree with Human Services that if the result reached by the chancellor was correct even for the wrong reason, we will affirm it. In the Matter of Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).
In 1985, the General Assembly passed Act 387, which reads in part relating to conflicts of laws and limitation periods:
(a) Except as provided by § 16-56-204, if a claim is substantially based:
(1) Upon the law of one (1) other state, the limitation period of that state shall apply; or
(2) Upon the law of more than one (1) state, the limitation period of one (1) of those states, chosen by the law of conflict of laws of this state, shall apply.
(b) The limitation period of this state shall apply to all other claims.
Ark. Code Ann. § 16-56-202 (1987).
If the statute of limitations of another state applies to the assertion of a claim in this state, the other state’s relevant statutes and other rules of law governing tolling and accrual shall apply in computing the limitation period, but the other state’s statutes and other rules of law governing conflict of laws shall not apply.
Ark. Code Ann. § 16-56-203 (1987). The claim in this case is in the form of enforcement of an Illinois judgment, which is substantially based on the law of that state. See Ill. Rev. Stat. ch. 110, par. 13-218.
We recognize that Arkansas provides a ten-year period for the enforcement of all judgments and that this period also applies to judgments revived in this state. Ark. Code Ann. §§16-56-114, 16-65-501 (1987). But in the instant case a judgment was revived in Illinois under that state’s 20-year statute of limitations, and registration and enforcement were then sought in Arkansas. Thus, we must address whether this state should give full faith and credit under the U.S. Constitution to a validly revived judgment in Illinois. We can discern no valid reason for not doing so.
The oft-stated law in this state is that a foreign judgment is as conclusive on collateral attack as a domestic judgment, absent fraud in the procurement or want of jurisdiction in the rendering court. See, e.g., Strick Lease, Inc. v. Juels, 30 Ark. App. 15, 780 S.W.2d 594 (1989); see also Tisdale v. Seavey, 286 Ark. 222, 691 S.W.2d 144 (1985). Full faith and credit, however, does not require a state to substitute the statute of another state that reflects a conflicting policy from that of its own statute. Orintas v. Meadows, 17 Ark. App. 214, 706 S.W.2d 199 (1986).
We are aware that cases in the various states dealing with conflicting statutes of limitation are not of one mind. One treatise on conflict of laws states the problem as follows:
Some uncertainty exists whether revival of the original judgment in the state of rendition will serve to overcome the recognizing forum’s shorter limitation on the original judgment, assuming that the revived judgment itself is not barred by the limitation. One view distinguishes between revival prolonging the original judgment and revival having the effect of creating a new judgment: the former is said to continue to be barred by the shorter local statute, while the latter is entitled to full faith and credit. However, the implication in the U.S. Supreme Court’s decision in Watkins v. Conway [385 U.S. 188 (1966) (per curiam)] is that any revival of a judgment is entitled to full faith and credit.
Scoles and Hay, Conflict of Laws § 24.32, p. 995 (2d Ed. 1992).
While Arkansas does have a ten-year limitations period for revival of judgments and for enforcement of judgments, it also has enacted § 16-56-202 and § 16-56-203, which apply the statute of limitations of a foreign state, when the claim involved is substantially based on the law of that state. We perceive no contravention of our domestic policy by giving full faith and credit to a valid Illinois judgment, appropriately revived in that state, under that state’s limitations statute. Were we to sanction Durham’s position, this might well lead to situations where devious obligors would shop from state to state to find the most favorable limitations period and then subsequently seek to invalidate enforcement of the issuing state’s judgment. We can also conceive of the burden placed on those seeking to enforce support orders by first having to ascertain the state of the obligor’s residence in order to determine the time period for revival. While there is no indication that either circumstance existed in the instant case, an opinion in accordance with Durham’s position would allow for that result.
Though the chancellor, according to the parties, permitted registration and enforcement of the Illinois judgment under an inapposite statute, we affirm his decision and give full faith and credit to the revived Illinois judgment.
Affirmed.
Newbern, Corbin, and Roaf, JJ., dissent. | [
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Robert L. Brown,
Justice. Appellant Dennis Lee Caldwell was convicted of first-degree murder, attempted rape, and burglary. He was sentenced to prison terms of life, thirty years, and twenty years, respectively. On appeal, he argues that the trial court erred (1) in failing to quash the jury venire; (2) in permitting the State to make a rebuttal argument during the sentencing phase; and (3) in refusing to give his proffered instruction on voluntary intoxication. The arguments are without merit, and we affirm the judgments.
On August 5, 1993, Keith Franklin was stabbed to death outside of his residence in Monticello. On the morning of August 7,1993, Caldwell, who was at his parents’ home in Crossed:, was arrested by Crossed police officers. He made an oral confession to Officer Scott McCormick of the Crossed Police Department and said that he had stabbed “a fellow” in Monticello and thought that he had killed him but that he had been smoking crack cocaine for three days and did not know what he was doing. He told Officer Steve Sadler, also of the Crossed Police Depart ment, that he had smoked $400 to $500 worth of crack cocaine. That same morning, Caldwell was transported back to Monticello where he signed a written statement taken by Captain Charles Cater of the Monticello Police Department. That statement was introduced at trial and describes what occurred:
On Thursday evening around 8:40 p.m., I walked up to Keith Franklin’s house, I knocked on the door Mrs. Allison was there, I ask here if Keith was home, she said no. I left going in back toward the trailer I have been staying in, I saw Keith and Vickie Haynie setting in front of the house, Keith ask where I was going I told him I was going to get ready to go to work. I put on a pair of white warmups, and a rabbit shirt. I put the knife in my pocket. I walked around the park, I walked back to Winchester Rd. I saw Keith putting his bike in the house. I told him I would be at the back door, Keith came out the back door, we started talking. I pushed Keith he called me a big crack headed son-of-a-bitch. I close lined him and he fell. I got on top of him. I threatened him with the knife. He grabbed my arm. He was holding my arm. I drew back my other fist and he let go, when he turned loose of my arm, the knife came down & stuck him. I thought damn, I have done f.....up. Then I stuck him two more times, I got up off of him and went to the back door, I went inside to the kitchen, Mrs. Allison came into the kitchen, I grabbed her and tried to put a pillow case over her head, but she pulled it off. I was behind her I pushed her into the bedroom, onto the bed, I pulled her pants off. She said, I want to get my grandbaby. I went into the living room and got the baby’s bottle, when I came back into the room she was crawling out the window. I took off, I jumped the fence & went toward the church. I crossed Oakland St. and went back by Vickie’s house. There is a trail that leads to the trailer pk. I went to Antwaun’s trailer. I caught a ride to work. I went on to work, about a hour later, someone told me Keith was dead. I ask my boss, if I could leave. I left and walked to James Dealer’s house. I got with Wanda and Yvon her sister. We went back to Keith’s house.
Viletha Allison, who was Keith Franklin’s 63-year-old mother, confirmed the burglary and attempted rape in her testimony at trial. She testified that she later found her son’s wallet in a pillow case in the bedroom where the attempted rape occurred without any money in it.
A steak knife was seized from the trailer where Caldwell was living, and the blood scrapings from the knife matched the DNA profiles of the victim. Dr. Charles Kokes, a state medical examiner, testified at trial that the victim had 22 stab wounds to his neck, hands, chest, and left thigh and that he died of massive internal bleeding.
Caldwell was charged with capital murder and the death penalty was requested. He was found guilty of first-degree murder and sentenced to life imprisonment as well as to terms of years for attempted rape and burglary.
I. JURY VENIRE
Caldwell first contends that the trial court erred in its failure to grant his motion to quash the venire because it was not made up solely of registered voters from the judicial district where the crime was committed. According to Caldwell, the Consent Decree entered by the United States District Court in Hunt v. State, No. PB-C-89-406 (Nov. 7, 1991), established new judicial districts which favored the election of minority judges and which also required that juries be selected from registered voters who lived in those new districts when crimes were committed there. The Franklin murder did occur in a new district, argues Caldwell, and yet only three jurors who were registered voters of the new district served on his jury. Under Caldwell’s theory of the case, that runs directly contrary to Arkansas law and to the Sixth Amendment to the U.S. Constitution.
Article 7, section 13, of the Arkansas Constitution sets the parameters for the state’s judicial districts, or circuits:
The State shall be divided into convenient circuits, each circuit to be made up of contiguous counties, for each of which circuits a judge shall be elected, who, during his continuance in office, shall reside in and be a conservator of the peace within the circuit for which he shall have been elected.
Thus, under the plain meaning of the Constitution, the judicial districts, or circuits, are to be framed along county lines and may include more than one county. The General Assembly has provided that each year “the prospective jurors for the following calendar year shall be selected from among the current list of registered voters of the applicable district or county. . . .” Ark. Code Ann. § 16-32-103(a) (Repl. 1994). Subsection (b) of § 16-32-103 states that the persons selected for jury duty shall come from registered voter lists for the district or county as provided by the county clerk.
The Consent Decree invoked by Caldwell in this appeal did have as its purpose “to provide African American voters improved and equal access to the political processes for electing judges to the trial courts of general jurisdiction in the State of Arkansas and to enhance the political participation and awareness of all citizens.” The Consent Decree also states that the lines of existing judicial districts will not be disturbed by the remedy except to the extent that electoral subdistricts are created. The Decree then goes forward and creates “majority African American and majority white population electoral subdistricts in Judicial Districts One, Two, Six, Ten, and Eleven West. . . .” The Tenth Judicial District is at issue in the instant case. The General Assembly has designated its composition as Drew, Bradley, Ashley, Chicot, and Desha Counties. See Ark. Code Ann. § 16-13-1801 (Repl. 1994).
Whether the electoral subdistricts contemplated in the Consent Decree are judicial districts under our Constitution and statutes is an issue that has not been previously addressed in an opinion by this Court. In Morgan v. State, 273 Ark. 252, 618 S.W.2d 161 (1981), this court did consider whether the trial court erred in allowing the jury only to be drawn from one of the two judicial districts created in Sebastian County. We concluded that “[cjlearly both our Constitution and the statute contemplate that a jury may properly be drawn from only one district within a county having more than one district.” Morgan, 273 Ark at 255, 618 S.W.2d at 162. In Morgan, however, this court was analyzing Article 13, § 5, which expressly provides for two judicial districts in Sebastian County.
In the case at hand, there is no constitutional or legislative provision that divides the Tenth Judicial District into two judicial districts. Added to this point is the fact that the language of the Consent Decree states that its remedy is directed at violations of the United States Voting Rights Act, and it specifically states that it “will not disturb existing district lines of the present judicial districts except to the extent that it creates electoral subdistricts. . ..” Other than inserting this new electoral district for the purposes of electing minority judges, no other aspects of the Tenth Judicial District were to be affected. According to the Consent Decree, the judges elected from the electoral subdistricts would exercise jurisdiction district-wide, and there was no requirement that each judge reside within the electoral district.
In an attempt to establish that legislative approval of the Consent Decree has occurred, Caldwell directs us to various appropriation measures passed by the General Assembly to fund the state judicial system. These measures do not evidence a directive by the General Assembly to subdivide the Tenth Judicial District but rather are funding mechanisms for the judges and judicial offices in both electoral subdistricts who exercise their authority throughout the judicial district. There simply has been no effort by the General Assembly to convert the electoral sub-districts into entirely separate and self-contained judicial districts with all the attendant ramifications. We hold that the electoral subdistricts within the Tenth Judicial District are not judicial districts and that the venire in this case was properly drawn from Drew County as a whole.
Finally, Caldwell maintains that he has a right under the Sixth Amendment to the U.S. Constitution to have the jurors selected from the electoral subdistrict where the crime was committed. The Sixth Amendment reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation. . . .
Caldwell provides us only with reference to the Sixth Amendment and with no additional authority. For the reasons stated above, we do not perceive the new subdistricts as having been created for reasons other than for the elections of minority judges. We hold that the Tenth Judicial District remains intact under state law and that the state’s judicial districts are the districts referenced in the Sixth Amendment as opposed to the electoral sub-districts established in the Consent Decree.
II. REBUTTAL ARGUMENT
Caldwell next urges that he was prejudiced in the sentencing phase because the trial court permitted the State to rebut his closing argument. Caldwell argues strenuously that in the sentencing phase, there is no burden of proof on either the State or the defense and, as a consequence, the State is unduly favored by having had the last word in this instance.
When the issue before us was whether the State was entitled to any closing argument during the sentencing phase for habitual offenders, we stated:
The appellant also argues that it was error to allow additional closing argument in the sentencing phase of the trial because it is not provided for in the statutory provision [Ark. Code Ann. § 5-4-202 (1987)] providing for sentencing procedure for habitual offenders. He maintains it prejudiced him because the prosecutor was able to argue punishment on both convictions. The appellant cites no authority for his contention beyond the language of Ark. Code Ann. § 5-4-502, which gives us no guidance. However, we find some analogy to the procedure in capital cases, see Ark. Code Ann. § 5-4-602 (1987), and that, coupled with the trial court’s broad discretion in the management of trial proceedings generally, supports the conclusion there was no error.
Beard v. State, 306 Ark. 546, 553, 816 S.W.2d 860, 864 (1991).
Act 353 of 1993, which establishes new bifurcated sentencing procedures in criminal trials, contemplates that the State will introduce relevant evidence to the issue of sentencing, including prior convictions, delinquency adjudications, and aggravating circumstances, but it is also silent on the procedures for argument in the sentence phase at jury trials. See Ark. Code Ann. § 16-97-103 (Supp. 1993). The trial court followed the traditional format in criminal cases, where the State has the burden of proof, by allowing the State to present its closing argument, the defense to respond, and the State to rebut. See Ark. Code Ann. § 16-89-123(a) (1987). As in Beard v. State, supra, permitting the State rebuttal argument in the sentencing phase when it has the burden of obtaining some penalty falls within the trial court’s broad discretion in managing the trial. We hold that there was no abuse of that discretion in the procedure followed by the trial court in this regard.
III. PROFFERED INSTRUCTION ON INTOXICATION
After the evidence presented during the guilt phase of the trial, Caldwell offered the following instruction which the trial court refused to give:
Voluntary intoxication is not a defense. It may, however, be considered by you in determining whether or not Dennis Caldwell has the ability to form the specific intent [for] the offense charged.
Caldwell then proffered the instmction for purposes of this appeal.
By Act 101 of 1977, now codified at Ark. Code Ann. § 5-2-207 (Repl. 1993), the General Assembly eliminated self-induced intoxication as a defense in criminal prosecutions. We have recognized that voluntary intoxication is no longer a defense to criminal charges in a line of cases since the enactment of Act 101. See, e.g., Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991); Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1992); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).
Contrary to Caldwell’s assertion, § 5-2-207 does not eliminate the State’s burden to prove purposeful intent to commit murder beyond a reasonable doubt, and the jury in his case was specifically instructed on the State’s burden in this respect. We confronted this identical issue in Sullinger v. State, supra, also a first-degree murder case, where a due process violation was similarly raised. We referred in that opinion to § 5-2-207 and its constitutional soundness. We underscored that ample evidence of purposeful intent had been presented in the case in the form of two eyewitnesses who described how the defendant had shot the police officer. We also made reference to the evidence that the defendant brought before the jury relating to his history of alcohol abuse. It was clear in Sullinger that the burden of proof remained with the State to prove purposeful intent and that the jury had determined that the State met its burden.
Here, Caldwell described his conduct in a statement given to Captain Cater of the Monticello Police Department. In that statement, Caldwell recounted in clear and lucid fashion the crimes he had perpetrated against Keith Franklin and Viletha Allison. There was no suggestion from any State witness, including the victim, Viletha Allison, that Caldwell’s actions demonstrated anything other than intentional behavior. There was also evidence presented to the jury that Caldwell had been on a significant crack cocaine binge at the time of the crimes. Thus, the evidence relating to any element of purposeful intent was for the jury to weigh and evaluate in light of the State’s burden to prove that intent beyond a reasonable doubt. That is how the jury was instructed, and, as in Sullinger v. State, supra, it clearly found that the State met that burden.
Caldwell’s proffered jury instruction is not an AMCI Instruction. Moreover, the instruction merely emphasizes Caldwell’s theory of the case that his crack cocaine intoxication should be considered as diminishing his capacity to form purposeful intent. The trial court properly refused to give the instruction.
The record in this case has been examined in accordance with Supreme Court Rule 4-3(h), and no reversible error has been found.
Affirmed.
The thrust of the State’s case was capital felony murder and first-degree felony murder with robbery of Franklin as the underlying felony. The jury, however, was also instructed on purposefully causing the death of another and for that reason we address the issue of the proffered instruction in terms of purposeful murder. | [
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Per Curiam.
On August 5, 1993, Charles Patton was found guilty by a jury of three counts of delivery of a controlled substance and was sentenced to ten years imprisonment on each count. Patton, who was represented at trial by his retained attorney, John Frank Gibson, Jr., filed a timely pro se notice of appeal. Gibson lodged the record on appeal in the Arkansas Court of Appeals on March 7, 1994, but the appeal (CACR 94-570) was dismissed on February 1, 1995, on the basis that Gibson had failed to file the appellant’s brief. On February 28, 1996, the appeal was reinstated by the court of appeals in a per curiam order.
Patton had also been found guilty in a separate proceeding of a fourth count of delivery of a controlled substance. Judgment in that case was entered January 5, 1994. On March 9, 1995, Gibson tendered the record to this court in case CR 95-230 with a motion for rule on the clerk which was necessary because the record was not filed in a timely manner. On April 3, 1995, we denied the motion for rule on the clerk but stated that if Gibson would concede that the untimeliness of the record filing was his fault within thirty days, or if other good cause was shown, the motion would be granted. Patton v. State, 320 Ark. 271, 895 S.W.2d 531 (1995) (per curiam). With respect to the conviction on three counts of delivery of a controlled substance, we stated that we could not grant relief because the court of appeals had dismissed the appeal in CACR 94-570. We noted that Gibson had erroneously merged the two cases.
On April 10, 1995, Gibson filed a motion in CACR 94-570 (or CR 95-230) in which he again confused the two appeals. He admitted fault for not filing a brief. However, the sole issue before this court was counsel’s conduct in the appeal of the separate January 5,. 1994 judgment. On May 15, 1995, the motion was denied. Patton v. State, 320 Ark. 513, 898 S.W.2d 446 (1995) (per curiam). In that order, we again gave Gibson 30 days to concede fault in failing to timely file the record in this case.
Gibson did not file another motion for rule on the clerk in this court with respect to the January 5, 1994 judgment until February 6, 1996 — almost nine months after our second per curiam order. Gibson admitted fault in failing to file the record on time in that motion. While we consider the delay in filing the motion to be extreme, we consider such an error admittedly made by counsel for a criminal defendant to be good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Glaze, J., not participating. | [
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Tom Glaze, Justice.
Appellant Grover Henderson was convicted of delivery of a controlled substance (three rocks of crack cocaine) and sentenced to life imprisonment. He was also fined $5,000. He appeals on multiple grounds. We affirm.
Jerry Revels was a resident of Stamps and a confidential informant of then Stamps Chief of Police, AI Dyar. Chief Dyar knew Revels was a drug user, and for a period of time he paid Revels $50 per drug buy to make cases for prosecution against drug sellers. On the night of April 23, 1993, Revels was involved in a drug buy for Dyar. According to the testimony of Dyar at trial, he and Revels had discussed making a buy from a person named Lamont Reynolds. Dyar first searched Revels and then gave him a micro-cassette tape recorder to record the events and $20 to purchase the cocaine. Dyar situated himself where he could observe the purchase. Dyar saw Revels talk with Reynolds and then continue on where Revels met Henderson. Dyar, who was thirty-five or forty yards down the road, stated that he saw Henderson pull a pill bottle out of his sock and remove a packet of tinfoil. Revels took the tinfoil and gave Henderson the $20 bill. When Revels returned to Dyar’s truck, Dyar opened the tinfoil and saw three rock-like substances. Dyar rewound the tape and he and Revels listened to it on the return to the police station where the cocaine and tape were turned over to Joe Thomas of the drug task force. Later that same evening, Revels gave a hand-written statement in which he described buying “three rocks” from Henderson for $20.
On August 22, 1993, Revels signed an affidavit under oath at the request of Henderson’s defense counsel. In that statement, he averred that Henderson, whose nickname was “Knot,” had never sold him any rock cocaine during April of 1993. He stated that he talked to Henderson on the night of April 23,1993, about buying crack cocaine but that a sale was not made. He stated that Chief Dyar coached him to make the statement that he bought drugs from Henderson that night, although in reality he bought the cocaine from a person coming out of Henderson’s house. He stated that Dyar threatened to use a burglary charge against him, if he did not implicate Henderson.
Because of Revels’s conflicting statements, a lie detector examination was scheduled before State Police Investigator Jerry Reed. The meeting occurred on September 16, 1993, but before the polygraph was administered, Revels told Investigator Reed that he had lied in his August 22 affidavit to Henderson’s defense attorney and that the first statement given to Chief Dyar on April 23, 1993, was the truth. Revels then gave the investigator a handwritten statement describing Henderson’s sale of the crack cocaine to him for $20. He later told the investigator that he had given the contrary affidavit to Henderson’s defense counsel because Henderson had threatened him.
Trial in this matter was originally scheduled for December 6, 1993, but Revels did not appear for trial, and the prosecutor asked for and was granted a continuance. On December 8, 1993, Revels was located by Lafayette County Deputy Sheriff Peter Briggs and arrested for failure to appear at trial. On that same date, Revels gave a statement, revealing that on December 5,1993, Henderson told Revels that he heard Revels had been subpoenaed for trial but that the subpoena had not been served. Revels’s December 8 statement further reflected that Henderson told Revels that he did not have to go to court, and if Revels wanted to lay low for a while, he could stay out of sight until everything blew over. Revels further stated that Henderson picked him up the morning of the trial, took him to the Livingston Motel in Springhill, Louisiana, paid for the room, and gave him money for food.
On August 29, 1994, trial of this matter commenced. The prosecutor called Jerry Revels as a state witness. However, when Revels testified that Henderson had always wanted him to come to court to testify, the prosecutor moved to declare Revels a hostile witness, which the trial court granted. The prosecutor then used Revels’s December 8 written statement to impeach Revels’s trial testimony. Later, on redirect examination of Revels, the prosecutor offered into evidence Revels’s earlier statements to Al Dyar on April 23, 1993, and to Investigator Reed on September 16, 1993, wherein Revels reaffirmed his April 23 drug buy from Henderson. Defense counsel stated that he had no objection to the introduction of these two statements.
Chief Dyar also testified for the state concerning his observations of Henderson’s involvement in the drug sale and, in addition, the micro-cassette tape evidencing a drug transaction between Revels and Henderson was played for the jury. Chief Dyar and Officer Briggs both had identified the voices on the tape as being those of Revels and Henderson. Based on this evidence, the jury found Henderson guilty.
Henderson first contends that the state’s evidence is insufficient to support the judgment. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Frier v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Only evidence supporting the verdict will be considered by this court on appeal. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).
As set out factually above, Chief Dyar witnessed Henderson’s participation in the crack cocaine transaction with Revels. In addition, that sale had been tape recorded, and after Henderson’s voice was properly identified on the tape, that tape was introduced to corroborate the other proof showing Henderson’s participation in the drug sale. While Henderson questions on appeal the credibility of Chief Dyar, Dyar’s credibility was a matter for the jury to weigh and resolve. Henderson also says the tape, standing alone, was too cryptic to show delivery of the drugs beyond a reasonable doubt, and without the written statements Revels made to Chief Dyar on April 23, 1993, and Investigator Reed on September 16, 1993, no sense could be made of what was said on the tape. He now asserts those two statements were prior inconsistent statements and should not have been given substantive effect. Henderson, however, failed to make that point below, and as mentioned hereinabove, Henderson simply stated he had no objection to the trial court’s admitting those two statements into evidence. In sum, the trial court correctly ruled the state’s evidence was sufficient to support a conviction.
Henderson next argues that the state’s evidence showing Henderson had tampered with a witness some six months after the April 23, 1993 drug sale constituted reversible error because it was impermissible evidence of a separate crime or wrong under Ark. R. Evid. 404(b). He also claims such evidence was inadmissible since it was used to impeach on a collateral matter and also it was utilized as substantive proof, rather than for impeachment purposes.
Other jurisdictions have recognized similar evidence of subsequent crimes or wrongs as probative of consciousness of guilt. Coronado v. State, 654 So. 1267 (Fla. Dist. Ct. App. 1995) (subornation of a witness); Peoples v. State, 874 S.W.2d 804 (Tex. Ct. App. 1994) (threat to a witness); Byrd v. State, 634 A.2d 988 (Md. Ct. Spec. App. 1993) (attempted subornation of a witness); see also State v. Broussard, 649 So. 2d 726 (La. Ct. App. 1994). This court has also permitted the introduction of other crimes or wrongs as relevant to show consciousness of guilt. See Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995); citing Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990) (refusal to take a breathalyzer test); Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994) (escape); Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993) (attempt to cover up crime); Morris v. State, 21 Ark. App. 228, 731 S.W.2d 230 (1987) (persuasion of witness to change testimony). In the Spicer and Morris cases, the court of appeals specifically discussed consciousness of guilt as an exception to Rule 404(b). Certainly a factfinder is entitled to know whether a defendant attempted to thwart his prosecution by secreting a witness who had implicated him in the charged offense. Thus, we hold that the proof regarding Henderson and his travel with Revels to Louisiana on the day set for trial was relevant circumstantial evidence of his knowledge or consciousness of guilt and was not unfairly prejudicial.
Because we decide that the evidence of witness tarn pering is relevant and strongly probative of a defendant’s knowledge or consciousness of guilt, we must also reject Henderson’s argument that such evidence was inadmissible as collateral matter. See Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). And for the same reason, Henderson’s claim that the trial court erred in allowing Revels’s December 8, 1993 statement to Officer Briggs is also of no import. As we have already held, other like evidence was properly introduced to show Henderson’s role in assisting Revels’s earlier absence from trial, and Revels’s December 8 written statement was merely cumulative evidence and not prejudicial. See Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995).
Before leaving this part of Henderson’s argument, we mention his brief contention that the trial court erroneously admitted hearsay evidence through Deputy Sheriff Briggs’s testimony on what the register at the Livingston Motel in Springhill, Louisiana showed for the dates December 6, 1993, through December 8, 1993. According to Briggs, the register showed a fictitious name (Arthur Johnson) and reference to a Buick automobile, which is the same make of car that Revels drove. Henderson objected to this testimony, and the court allowed it solely for impeachment purposes. A copy of the motel register was introduced into evidence by the state.
We observe again that the testimony was relevant as it was some evidence of registration in Louisiana on the trial date under a false name, and, thus, some evidence that Henderson engaged in witness tampering. This was not evidence regarding a collateral matter. Moreover, we do not view the motel register as hearsay evidence. Clearly, had the state’s introduction of the register through Deputy Sheriff Briggs been for the purpose of proving that Arthur Johnson was registered at the Livingston Motel on December 6, 1993, and drove a Buick automobile, that would be hearsay evidence. The motel register, however, was not introduced to prove the truth of the matter asserted. See Ark. R. Evid. 801(c); see also Owens v. State, 318 Ark. 61, 883 S.W.2d 471 (1994). Rather, its purpose was to illustrate that the room was registered under an assumed name — a fact which Revels denied. There was no abuse of discretion in the trial court’s admission of this evidence for impeachment purposes.
In his third point, Henderson argues error occurred as a result of the prosecutor’s closing arguments. The first statement by the prosecutor occurred during his closing argument following the guilt phase when reference was made to Henderson’s impeachment of Chief Dyar by a 1987 misdemeanor conviction for failure to pay taxes: “They said well good we got a policeman here we can attack now too.” The prosecutor next intimated to the jury, according to Henderson, that Henderson had plied Revels with drugs and money so that he would not testify against him. And, thirdly, during arguments following the penalty phase, Henderson was absent and the prosecutor stated: “[H]e’s not even here to accept the sentence that you’re going to hand down on him.”
Regarding the first two statements, in each instance the trial court admonished the jury that closing arguments must be reasonably related to the evidence. The response by the trial court in both instances was proper.
After the prosecutor’s comment about Henderson’s absence following the penalty phase, defense counsel moved for a mistrial which was denied. Subsequently, Henderson returned to the courtroom, and defense counsel moved the court to bring the jury in to see that Henderson was back. The trial court did so. Any possible prejudice caused by Henderson’s absence and the prosecutor’s remark was cured by defense counsel’s proposal to bring the jury back to observe Henderson. These were matters of trial court discretion, and we find no abuse of discretion on the points raised. See Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993).
Henderson next urges that the trial court was biased against him, which denied him a fair trial. Henderson is correct that a judge must avoid even the appearance of impropriety. Canon 2, Arkansas Code of Judicial Conduct (1993); City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990); Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). We conclude, however, that this point has no merit.
Henderson presents three examples of the trial court’s rulings at trial which, he contends, confirm an appearance of bias. The first involves the questioning of Jerry Revels by both the prosecutor and defense counsel on whether Revels was lying. When defense counsel asked whether Revels was lying, the prosecutor objected, and the objection was sustained. However, when the prosecutor asked the question to Revels, there was no objection to it by defense counsel. Henderson’s argument in this regard is frivolous.
Henderson also points to a question by the prosecutor asking Chief Dyar whether the statements by Revels corroborated the tape, to which defense counsel objected. The basis for defense counsel’s objection was that this was a task for the jury to decide. The trial court allowed it. We consider this issue a judgment call by the court. Manifestly, it does not support an allegation of bias.
As his third example, Henderson cites us to the trial court’s ruling sustaining the prosecutor’s objection to a question posed to Chief Dyar on cross-examination about whether his affidavit for arrest warrant on his incident report was true. The objection was made to the form of the question. The trial court also sustained the prosecutor’s objection to defense counsel’s explanation of the plea negotiation surrounding Chief Dyar’s 1987 misdemeanor conviction. Both rulings are entirely plausible and exhibit no prejudice by the trial court. Nor does the trial court’s allowance of the evidence regarding witness tampering, as already noted.
Henderson next contends that his life imprisonment sentence for first-offense delivery of crack cocaine constitutes cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. We conclude, too, this argument forms no basis for reversal. First, the sentence falls within the limits set by the General Assembly for the offense. See Ark. Code Ann. § 5-64-401 (Repl. 1993). Secondly, we have held that if the sentence fixed by the trial court is within legislative limits, we are not free to reduce it even though we might consider it to be unduly harsh. Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995); Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990). We have carved out extremely narrow exceptions to this general statement of the law: (1) where the punishment resulted from passion or prejudice, (2) where it was a clear abuse of the jury’s discretion, or (3) where it was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. See Williams v. State, supra; Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990); Parker v. State, supra; see also Harmelin v. Michigan, 501 U.S. 957 (1991).
Evidence in this case clearly reveals that Henderson’s sale of three rocks of cocaine to Revels was not an isolated incident. The tape recording of the drug transaction contains Henderson’s admission that he had given five rocks of cocaine to a girl to sell for him, she sold two, and the rocks Henderson was selling to Revels were the three rocks she had returned having been unable to sell them because they were soft from her having sweated on them. Two handwritten statements from Revels entered into evidence by the state corroborated the tape recording. Consistent with this evidence, the prosecutor during the penalty phase told the jury without objection that, contrary to defendant’s counsel’s argument, Henderson’s drug involvement with Revels was not isolated, and in fact, Henderson was also involved with another person’s (a girl’s) attempt to sell “dope.” He told the jury “it was hard to catch these guys (like Henderson), because everybody is willing to sell the dope for them. . . .”
We note that the dissenting justices conclude Henderson’s life sentence runs afoul of the moral sense of the community because Henderson only sold three rocks of crack cocaine and this was his first offense. Apparently, it is true that Henderson has not been convicted of selling crack before, but as we pointed out above, Henderson has been involved in at least another drug sale transaction which was known by the jury when it returned Henderson’s life sentence. The jury had every right to believe that Henderson was no innocent bystander when it comes to selling or delivering controlled substances. In any event, Henderson offered no proof or argument showing the sentence imposed here was contrary to the moral sense of the community.
Finally, we find no merit in Henderson’s contention that there was cumulative error in this trial. No motion was made to this effect, and we, as a result, will not consider it. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).
The record has been reviewed for other reversible error pursuant to Supreme Court Rule 4-3(h), and none has been found.
Affirmed.
Newbern, Brown and Roaf, JJ., dissent.
To reiterate, these statements reflect Revels said that he did purchase crack cocaine from Henderson.
To reiterate, we note Revels denied at trial that Henderson ever encouraged his absence from court and when the trial court allowed the state to impeach Revels by using his earlier December 8, 1993 statement to the contrary, Henderson claims its actual use was substantively to show guilt. | [
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Robert L. Brown, Justice.
This matter relates to whether appellee Barbara Mellon was afforded an opportunity to be heard on why she did not appear at a telephone hearing before the Appeal Tribunal of the Employment Security Department. The Board of Review of the Employment Security Department dismissed Mellon’s request to be heard, after she failed to appear at a second telephone hearing. The Arkansas Court of Appeals in an opinion handed down on March 29, 1995, remanded the case to the Board of Review to examine whether Mellon was denied her statutory or due process rights. In a supplemental opinion handed down on June 28, 1995, the Court of Appeals denied rehearing. The Employment Security Department petitioned for a review of the opinions by the Court of Appeals, and this court granted review on July 10, 1995, pursuant to Supreme Court Rule 2-4. Upon review, we affirm the decision of the Board of Review and reverse the decision of the Court of Appeals.
Barbara Mellon sought unemployment insurance benefits after her employment terminated with Classic Cleaners in Berryville. The Employment Security Department found that Mellon had left her job voluntarily for undisclosed reasons. Because the Department determined that good cause was not shown for terminating the job, it denied Mellon’s request for benefits, and she appealed to the Appeal Tribunal. A telephone hearing was scheduled by the Appeal Tribunal for November 3, 1993, but Mellon did not call in prior to the hearing and provide a telephone number, as the notice required. Because of Mellon’s failure to appear at the telephone hearing, the Department’s denial of benefits was affirmed in a decision by the Tribunal on November 4, 1993. That decision stated that it would become final if not appealed within twenty days after the date of the mailing. The decision was mailed on November 4, 1993.
By letter post-marked December 16, 1993, Mellon requested a new hearing before the Appeal Tribunal. The text of her letter read:
I would like to set up a new hearing date. I never received my notice in the mail.
The unemployment office told me the date it was supposed to be.
The twenty-day period for filing an appeal had expired by the time Mellon wrote her letter. The Appeal Tribunal, nevertheless, forwarded her letter to the Board of Review, which scheduled a telephone hearing for January 18, 1994, to determine whether her failure to appeal in timely fashion was due to circumstances beyond her control.
Mellon received the notice of the second hearing and provided a telephone number where she could be reached on the date of the hearing. However, she failed to appear on that date. Mary Cameron, the appeals referee and staff attorney, commented that she called the number, and the person answering stated that she “did not know if [Mellon] would make it to her house today.” On January 27, 1994, the Board of Review dismissed Mellon’s appeal, stating:
Although duly notified of the date and time of the hearing, the claimant/appellant failed to respond as directed in the notice of telephone hearing and has not shown good cause for failure to respond.
The board of review considers it appropriate to dismiss the appeal, and the appeal tribunal decision ... remains in effect.
In a letter dated February 7, 1994, Mellon responded to the ruling:
Due to the weather on January 18, 1994,1 was unable to reply to the scheduled hearing I left message with the number.
I think the weather was good cause for not being able to reply to the hearing. You may reach me at 501-. . . .
The letter was stamped received by the Board of Review on February 16, 1994, and the Board forwarded the letter to the Court of Appeals for its consideration.
In an opinion dated March 29, 1995, the Court of Appeals remanded the case to the Board of Review to determine whether good cause was shown for Mellon’s failure to appear at the telephone hearing scheduled for January 18, 1994. Citing Ark. Code Ann. § 11-10-524 (Supp. 1993), the Court of Appeals based its opinion on the fact that Mellon’s letter was received within the twenty-day period for rehearing. The Department petitioned for rehearing of the court’s decision and contended that § 11-10-524 provides for no rehearing before the Board of Review within twenty days of its decision. The Court of Appeals denied the petition in its supplemental opinion dated June 28, 1995, and concluded that due process required that the Board of Review provide Mellon with another opportunity to be heard:
Thus, forgetting about Ark. Code Ann. § ll-10-524(c) and whether it applied to the board in this case, we think the request for new hearing, received by the board before its January 27 decision became final, allowed the board to grant the appellant a new hearing. Whether the new hearing should be granted is for the board to determine on remand. However, due process considerations stated in Paulino v. Daniels and its progeny require more than a simple finding that the appellant failed to appear at a hearing and therefore has not shown good cause for failing to file a timely appeal to the board. Moreover, in the instant case the two-prong requirement of opportunity to be heard and reasons for the untimely appeal are both present.
The Department contends that neither Arkansas statutes nor due process requirements demand that Mellon have a third opportunity to be heard. The Court of Appeals appeared to recognize in its supplemental opinion that § ll-10-524(c) provides the Appeal Tribunal may reopen a decision upon a showing of good cause. But that procedure does not apply to the next tier of appellate review before the Board of Review. At that stage, there is no statutory provision for reopening a decision, but only a provision for judicial review:
The decision [of the Board of Review] shall be final unless within twenty (20) days after the mailing of notice thereof to the party’s last known address, or, in the absence of the mailing, within twenty (20) days after the delivery of the notice, a proceeding for judicial review is initiated pursuant to § 11-10-529.
Ark. Code Ann. § 11-10-525 (1987). The letter received by the Board of Review on the twentieth day from its decision was a request for still another hearing based on allegations of good cause for missing the January 18, 1994 hearing. That is a remedy which the employment security statutes simply do not provide at the Board of Review level.
We turn then to the issue of whether due process considerations mandate another hearing for Mellon under Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (Ark. App. 1980). In Paulino, the claimant was late in appealing a denial of benefits to the Board of Review. The Board found that the appeal was late and that the claimant’s failure was not caused by circumstances beyond her control. The Board, therefore, affirmed the denial of benefits, but the Court of Appeals reversed and held:
As appellant was given no opportunity before the Board of Review to attempt to explain the lateness of her appeal to that body, and in view of the fact that there is no substantial evidence in this record to support the finding of the board that the failure to file a timely appeal was not a result of circumstances beyond the appellant’s control, due process requires that claimant-appellant be afforded a hearing on her contentions.
In this case, unlike the Paulino facts, Mellon was given an opportunity by the Board of Review to explain why she did not appear at the telephone hearing before the Appeal Tribunal. But she failed to appear at this second telephone hearing, despite the fact that she undoubtedly knew about the hearing on January 18, 1994, and had provided die Board with a telephone number where she could be reached. Moreover, the Board of Review waited until January 27, 1994, to enter its decision affirming the denial of benefits. From the record, it does not appear that Mellon contacted the Board until twenty days after her failure to appear.
In short, the Board of Review did provide Mellon with an opportunity to explain her first failure to appear, and she did not take advantage of it. Because of that and after waiting nine days from the hearing date, the Board affirmed the Appeal Tri bunal. Due process and Paulino v. Daniels, supra, require no more than this.
The decision of the Board of Review is affirmed, and the decisions of the Court of Appeals as reflected in the original opinion and the supplemental opinion are reversed. | [
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Donald L. Corbin, Justice.
Appellant, Robert Lee Jones, appeals the judgment of the Mississippi County Circuit Court, filed on October 3, 1994, finding him guilty of one count of capital murder for the felony murder of Estella Black committed in April of 1993. Appellant was tried by a jury and sentenced to life imprisonment without parole. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant raises four arguments for reversal. We find no error and affirm the trial court’s judgment.
1. Sufficiency of evidence
Appellant argues that there was insufficient evidence to support his conviction for capital murder. We consider this argument first because the double-jeopardy clause, as interpreted in Burks v. United States, 437 U.S. 1 (1978), precludes a second trial when a judgment of conviction is reversed for insufficient evidence. Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Appellant has failed to preserve this issue for our review due to a lack of specificity in his motions for directed verdict below.
Appellant moved for a directed verdict at the close of the state’s case, as follows:
THE COURT: Let the record reflect that the State having rested, we’re in chambers at the request of the defense for the purpose of making a motion for a directed verdict challenging the sufficiency of the evidence.
MR. SWIFT [COUNSEL FOR DEFENDANT]: That’s correct.
THE COURT: And the motion will be denied.
(End of hearing.)
Proceedings then resumed in the courtroom at which time the defense immediately rested. The record states that “defense renewed the motion for a directed verdict which was heard and denied.”
It is well-established that a challenge to the sufficiency of the evidence requires the moving party to apprise the trial court of the specific basis on which the directed-verdict motion is made. E.g., Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Haltiwanger v. State, 322 Ark. 764, 912 S.W.2d 418 (1995). Neither appellant’s original directed-verdict motion nor his renewal motion indicates that any specific deficiency in the evidence was called to the trial court’s attention. Because there was a failure to raise the specific basis for a directed verdict at trial, appellant cannot now challenge the sufficiency of the evidence on appeal. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).
2. Speedy trial
Appellant argues the trial court erred in denying his motion to dismiss on the ground that the state failed to timely bring him to trial. Ark. R. Crim. P. 28.1. Appellant’s trial began on September 14, 1994, a date more than twelve months after the speedy-trial period began on April 9, 1993, when appellant was taken into custody and incarcerated from that point forward. Thus, appellant established a prima facie case that a speedy-trial violation occurred, and the burden shifted to the state to show the trial court that the delay was the result of the appellant’s conduct or otherwise legally justified. Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993). We find that the state met this burden.
On February 18, 1994, appellant filed a motion for continuance to obtain a psychological examination, to obtain discovery materials purportedly withheld by the state, and because:
4. As further grounds for this matter to be continued, the attorney for the Defendant has developed physical problems which will make it difficult for him to adequately represent the Defendant at trial. It is possible that the attorney for the Defendant may be hospitalized as a result of these physical problems in the next few days.
On February 18, 1994, appellant filed a separate motion for psychiatric examination. By order filed on February 22, 1994, the case was continued on appellant’s motion to the first day of the next term of court on May 31, 1994. Appellant does not dispute, on appeal, the period of delay excluded under this order.
The gravamen of appellant’s argument is that it was error to exclude the period of delay from May 31, 1994, until September 6, 1994, on the basis of the following order that was filed on September 13, 1994:
Now, on this 12th day of September, 1994, upon Motion of the Defendant, Robert L. Jones, by and through his attorney, Henry Swift, IT IS HEREBY CONSIDERED, ORDERED AND ADJUDGED that the above-captioned case is continued from May 10, 1994 until September 6, 1994 due to the illness of Henry Swift.
IT IS FURTHER ORDERED that the time between the dates be an excluded period of time within the meaning of the Speedy Trial Rules.
The September 13 order was signed by Circuit Judge Samuel Turner, Jr. The hearing on appellant’s motion to dismiss was conducted by Circuit Judge Gerald Pearson.
Appellant argues that the September 13 order was obtained by the state, without action on the part of him or his trial attorney, Henry Swift, and was not reflected by any docket entry, as required by Ark. R. Grim. P. 28.3(i), and, therefore, the period of delay from May 31, 1994, until September 6, 1994, cannot be charged against him.
At the hearing on the motion to dismiss, the trial court requested evidence regarding the September 13 order. Deputy Prosecuting Attorney Richard Rhodes testified that, on or about May 9, 1994, he received a telephone call from Dr. Reggie Cullom, Mr. Swift’s physician, who advised him that Mr. Swift was hospitalized, that Mr. Swift had informed him that he had a number of cases ready for trial in the upcoming term of court at the end of May, that Mr. Swift would be in no condition to try any cases in June, and asked that Mr. Swift’s cases be continued due to his poor physical condition.
The trial court stated that pretrial criminal proceedings were held on May 10, 1994, for the term of criminal court that commenced on May 31, 1994. Mr. Rhodes testified that he went to the pretrial proceeding on May 10, 1994, and talked to Judge Turner, who indicated that he had also received a communication from Dr. Cullom.
Mr. Rhodes testified that, at the May 10, 1994 pretrial proceeding, Judge Turner announced that Mr. Swift was hospitalized and unable to try his cases in the upcoming term of court, and that all of Mr. Swift’s cases were continued.
At the hearing on the motion to dismiss, Mr. Rhodes provided the trial court with a copy of a letter dated May 12, 1994, from Deputy Prosecutor Charles R. Easterling to Mr. Swift. Although the letter concerned another criminal case, it contained the following language that is pertinent to this appeal:
At the Osceola pre-trial on May 10, Judge Turner advised that he had been advised that you were having significant health problems which have resulted in your hospitalization and also your unavailability to try cases during the upcoming criminal term commencing May 31. It was Judge Turner’s understanding that you wished to have all of your cases continued on defense motion until the next term which is September 6.
The record shows that a copy of the May 12 letter was filed in this case on May 23, 1994. Mr. Rhodes testified that, when appellant filed the motion to dismiss in August 1994, he examined the court docket, found no entry for May 10th, and, thereupon, prepared a written order memorializing the continuance from May 10, 1994, until September 6, 1994, that was granted at the May 10, 1994 pretrial proceeding.
At the hearing on the motion to dismiss, Deputy Prosecuting Attorney Shannon Langston testified that, on September 13, 1994, she filed the order continuing the case from May 10, 1994, until September 6, 1994, after she talked with Judge Turner and showed him Mr. Easterling’s letter. Ms. Langston testified that Judge Turner glanced at the letter, had no qualms about signing the continuance order, and said that he did not believe he had not made docket entries that day, was very sorry that he had not made docket entries, and did remember making an announcement before court. Ms. Langston also testified that Mr. Guy Long, who had been described by Mr. Swift as someone “I could have and did have so he could sit with me at trial,” was present in court on May 10, 1994, and “was in agreement.”
At the hearing on the motion to dismiss, Mr. Swift testified that he was hospitalized in Memphis, Tennessee, from May 3, 1994, until his discharge on May 31, 1994. Mr. Swift did not controvert the fact that Judge Turner orally continued all of Mr. Swift’s cases on May 10, 1994. Mr. Swift testified, however, that he did not request a continuance from May 31, 1994, and that neither Dr. Cullom nor Mr. Long was authorized to act for him or appellant.
The trial court determined that the delay from May 10, 1994, to September 6, 1994, was excludable by order of Judge Turner, and denied the motion to dismiss, stating:
Now, perhaps it’s unfortunate — well, it’s certainly true that Mr. Swift did not file a motion for continuance for the May term of court. No docket entry was made by the Court at that time. However, it is abundantly clear to the Court in reconstructing the record as to what actually transpired that the case was set for the May ‘94 session of court, that Mr. Swift was ill, hospitalized for a period of 27 days, three weeks or so, having been discharged on May 31st, the date set for trial.
It’s clear abundantly to the Court that the State would not have been able to proceed to trial on May the 31st and subpoenaed witnesses and have them here for trial on that date under the circumstances. It’s grossly unfair that the State would be penalized for not having tried the case at the May 31st session of court under the circumstances.
Communication was had with the judge and prosecuting authorities that Mr. Swift was not physically able to try the case during that period of time.
We find no error in the trial court’s ruling. First, the period of delay from May 31, 1994, to September 6, 1994, is excludable, pursuant to Ark. R. Crim. P. 28.3(h), for good cause. Appellant does not contest the fact of the continuance that was ordered at the May 10, 1994 pretrial proceeding, only that he did not request the continuance. However, we have held that, even absent a defendant’s specific request for a continuance, a trial delay that is attributable to the defendant may constitute “good cause” for exclusion of the delay, pursuant to Rule 28.3(h). E.g., Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993) (delay occasioned by defendant’s motion to remove his court-appointed counsel); Clements, 312 Ark. 528, 851 S.W.2d 422 (delay occasioned by the trial court’s removal of defense counsel who were found negligent and held in contempt of court); Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991) (delay occasioned by the defendant’s motion to sever filed on the eve of trial). In this case, we do not hesitate to attribute the continuance that was ordered at the May 10, 1994 pretrial proceeding to appellant, inasmuch as it was a necessary and reasonable accommodation to him occasioned by the undisputed illness and hospitalization of his trial counsel until the first day of the criminal court term, May 31, 1994.
Second, although Judge Turner did not set forth the excluded period in a written order or docket entry on May 10, 1994, as required by Rule 28.3(i), we have held that a trial court’s failure to comply with Rule 28.3(i) does not result in automatic reversal of the conviction if a contemporaneous record is made that reveals the delaying act is attributable to the accused. Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). In Clements, 312 Ark. 528, 851 S.W.2d 422, we held that a nunc pro tunc order prepared and filed by the prosecution to memorialize a continuance that was attributable to the accused was sufficient where the record also reflected that the continuance was memorialized in the proceedings at the time. Accord Lewis, 307 Ark. 260, 819 S.W.2d 689. In this case, although no contemporaneous record was made by Judge Turner when he orally continued the case on May 10, 1994, by reason of Mr. Swift’s health problems, Judge Turner remedied that oversight by the order that was filed on September 13, 1994. Further, the record contains the May 12, 1994 letter of Mr. Easterling, which also sets forth the dates and basis for the May 10 continuance, as memorialized in the September 13 order. This case is distinguishable from other decisions in which we have found that, in addition to the trial court’s noncompliance with Rule 28.3(i), the state failed to prove that the disputed delay was legally justified. E.g., Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991) (finding the trial court’s order excluding period of delay violated Rules 28.3(b) and 28.3(i)); Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993) (finding no proper continuance indicating the reasons for delay was granted by the trial court when continuance was ordered). In the present case, in contrast, the state has clearly demonstrated that the disputed delay was the result of appellant’s conduct. This record is sufficient to satisfy Rule 28.3(i).
Finally, the record reveals a docket entry dated September 6, 1994, that provides: “Cont. to 9/14/94 for mo. Speedy Trial.” We understand this entry to memorialize a trial delay from September 6, 1994, until September 14, 1994, as a result of appellant’s motion to dismiss. Appellant does not dispute, on appeal, this excluded period of delay. On September 14, 1994, the trial commenced.
On this record, the state has met its burden of showing that the delay was legally justified. Therefore, the trial court did not err in denying the motion to dismiss.
3. Motion to suppress
Appellant makes the following statement in his brief to this court:
[Ajppellant feels he should call attention to the fact that he was questioned for 4 days, without benefit of the presence of Counsel or family, before giving the so called confessions; and that he never signed the statements.
Appellant feels the Lower Court was in error in not requiring greater proof the voluntariness of the confession.
By this statement, we understand appellant argues that the trial court erred in denying his motion to suppress two separate oral statements that he gave while in custody at the police department. In each statement, appellant declared that he believed he killed the victim. The first statement was given on Saturday, April 10, 1993, 4:11 p.m.; the second statement was given on Sunday, April 11, 1993, 3:30 p.m. Both statements were tape recorded and subsequently transcribed. At trial, the recordings of both statements were admitted into evidence and played.
At the evidentiary hearing on the suppression motion, testimony was given by Osceola Police Department Officers J.C. Brewer and A.C. Simmons, appellant, and Osceola District Municipal Court Judge William Lee Fergus. At the conclusion of the hearing, the trial court ruled both statements were voluntarily given prior to appointment of defense counsel for appellant, and denied the suppression motion.
We have stated that, on appeal, we make an independent determination of the voluntariness of a confession, but, in doing so, “ ‘we review the totality of the circumstances and will reverse only when the trial judge’s finding of voluntariness is clearly against the preponderance of the evidence.’ ” Trull v. State, 322 Ark. 157, 160, 908 S.W.2d 83, 84 (1995) (quoting Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991)). We do not reverse unless the trial court’s finding is clearly erroneous, recognizing that conflicts in the testimony are for the trial court to resolve. Id.
Appellant testified at the suppression hearing that he was released after he was questioned the first time, but was detained at the jail after he was picked up the second time. Appellant testified that Officer Simmons “kept asking me . . . and I kept telling him I didn’t know.” Other evidence introduced at the suppression hearing reveals that appellant was questioned and released on April 7, 1993, arrested on April 9, 1993, and detained by the police thereafter. Officers Brewer and Simmons identified five copies of a form document that informed appellant of his legal rights and waived those rights. Those documents were respectively dated April 7, 1993, 2:00 p.m.; April 9, 1993, 8:50 a.m.; April 10, 1993, 9:00 a.m.; April 10, 1993, 4:11 p.m.; and April 11, 1993, 3:30 p.m. The record of the suppression hearing does not reveal any other interviews during the period from April 7 to April 11, 1993.
At the suppression hearing, appellant testified that Officer Simmons read something to him at the jail, which he did not really understand because he (appellant) was under the influence of alcohol. When asked again at the suppression hearing whether he understood what Officers Simmons and Brewer had read to him, appellant testified that he could not remember. Officer Simmons recalled that he detected no alcohol from appellant’s person or in his manner or speech when he drove appellant to the jail.
The waiver form for the April 10 recorded statement was introduced into evidence at the suppression hearing and is dated April 10, 1993, 4:11 p.m. Officer Brewer testified that, prior to the April 10 recorded statement, he read the waiver form to appellant and appellant verbally responded in the affirmative to each question listed thereon. Officer Brewer stated that Officer Simmons was present during the reading of the waiver form, that appellant was asked to sign the waiver form if he understood his rights, and that appellant signed the waiver form in his presence. Officer Simmons corroborated Officer Brewer’s testimony. Both officers signed the waiver form and were present at the ensuing interview.
The waiver form for the April 11 recorded statement was not introduced into evidence at the suppression hearing or at trial, but the testimony from the suppression hearing reveals that it is dated April 11, 1993, 3:30 p.m. Both officers testified that the waiver form for the April 11 interview was read, acknowledged, and signed by appellant and by both of them in the same manner as described for the April 10 recorded statement. Both officers testified that Officer Brewer left after the April 11 waiver form was read and signed, and was not present at the interview that day. Officer Simmons testified that he was off-duty on Sunday, April 11, and that the interview that day was initiated by appellant when the station contacted him at home and informed him that appellant wanted to talk to him.
Appellant testified that Officer Simmons told him that he would help him and get him some help. Both officers testified that no force or coercion was used on appellant or any promises made to him to obtain either of the recorded statements.
It is undisputed that appellant was not accompanied by an attorney when the two recorded statements at issue were given. Appellant testified that Officer Simmons did not ask him if he wanted a lawyer. Officer Simmons testified that he specifically recalled informing appellant that he had a right to an attorney, and that appellant never asked for one. Appellant testified that “they” told him he had a lawyer. When asked at the suppression hearing who he was told was his lawyer, appellant testified that he had not known at the time.
Judge Fergus testified that he conducted the probable-cause proceeding at Officer Brewer’s office on Sunday, April 11. Judge Fergus recollected that the probable-cause proceeding occurred in the afternoon, possibly late afternoon, and that, just before he went to the police station, a statement had been taken from appellant that afternoon. Judge Fergus testified that, although the probable-cause affidavit indicated that bond was set and a public defender appointed, those matters would not have been done until the next day in court. Officer Simmons testified that the April 11 statement was given before appellant was bound over.
On this record, appellant has not demonstrated that the trial court’s finding that both of the recorded statements were voluntarily given prior to appointment of defense counsel is clearly erroneous. The conflicts in the testimonies were for the trial court to resolve. Trull, 322 Ark. 157, 908 S.W.2d 83. Therefore, the trial court did not err in denying the motion to suppress.
4. Tape recordings and transcriptions
Appellant argues that the trial court erred in refusing “to dismiss” the two tape recordings that were the subject of the aforementioned suppression hearing and the transcripts of those statements when they were offered at trial.
At trial, Officer Brewer identified the original tape recording of the April 10 statement, which was introduced into evidence, without objection, and played for the jury. Over appellant’s objection, the trial court instructed the jury that they would be permitted to have a transcription of the recording to aid in understanding the recording and that, if any discrepancies were noted, they must consider only the tape recording as it was the evidence and the transcription was just an aid. The transcription was not admitted into evidence. After the tape recording was played, the secretary who prepared the transcription testified that, at the beginning of the transcript, she had typed April 12 as the date of the interview. The secretary testified that that date had been changed in ink by someone else to read April 10. The secretary testified that, without listening to the tape, she did not know if the date she had typed was a typographical error or not.
Appellant moved to strike the April 10 statement on the ground that it was taken with the knowledge that counsel had been appointed to represent him and had not been informed of the interview. The trial court denied the motion to strike, stating that the discrepancy in the date had previously been addressed at the suppression hearing and that Officer Brewer had there testified that, when he noticed the clerical error on the transcription, he had manually corrected it so that it stated the correct date of the recorded statement, which was April 10. The trial court stated that if the recording itself stated that the interview occurred on April 12, then appellant would be heard further.
The state then conceded that the disputed date was not a part of the recording. On cross-examination, Officer Brewer testified that the statement of the date was not on the tape, that whoever typed the transcript put it' there, that he had manually changed the date from April 12 to April 10, and that the interview recorded was that conducted on April 10, 4:15 p.m. Appellant did not renew his motion to strike.
We observe that, at the hearing on the motion to suppress the April 10 and April 11 recorded statements, Officer Simmons stated that he never interviewed appellant after the April 11 probable-cause proceeding.
The transcription of the challenged recording, as noted, was never admitted into evidence. On this record, we do not find that appellant has demonstrated as clearly erroneous the trial court’s finding that the April 12 date in the transcription was a simple clerical error. Therefore, the trial court did not err in denying the motion to strike the recording of the April 10 statement.
Appellant argues that the April 11 tape recording and its transcription, which was prepared by a different secretary, should have been dismissed due to the possibility of taint. This argument, which is based upon a false premise, is clearly without merit.
Conclusion
In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for prejudicial errors objected to by appellant but not argued on appeal, and no such errors were found in this case.
Affirmed.
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Robert L. Brown, Justice.
The appellant, First Commercial Trust Company, Administrator of the Estate of Laura Full-bright, appeals from a judgment in favor of appellee Dr. Rheeta Stecker, who was the family doctor for Laura Fullbright and her mother, Mary Ellen Robbins. The Administrator asserts that the trial court abused its discretion in refusing to allow a medical expert, Dr. Frederick Epstein, to testify with respect to the standard of medical care regarding child abuse in Hot Springs. We agree that this was error, and we reverse the judgment in favor of Dr. Stecker and remand the matter for a new trial on the medical negligence count. We affirm the judgment in favor of Dr. Stecker on the count relating to failure to report under the child abuse reporting statute, and we hold that the refusal of the trial court to direct a verdict on this count in favor of the Administrator was not error.
On June 12, 1992, Mary Ellen Robbins took her 12 1/2- month-old baby, Laura Fullbright, to Dr. Rheeta Stecker for a “well-baby checkup.” Robbins was a pharmacist and had been a patient herself of Dr. Stecker’s for approximately five years. Dr. Stecker referred to her as a “colleague.” During that checkup, Dr. Stecker noticed that Laura’s forearm was angulated and swollen, but upon checking, she determined that it was not tender and there was no bruising. An X-ray showed that there was a fracture to both of the bones of the lower left arm. Robbins and her boyfriend, Joe Rank, stated that they did not know what had caused the fractures. Dr. Stecker then referred Robbins to Dr. Robert Olive, an orthopedic surgeon, to assure that the bone would heal properly. At that time, Dr. Stecker believed that there was a possibility the child had been neglected, and that belief was communicated to Dr. Olive. After treating Laura, Dr. Olive stated in a letter to Dr. Stecker that the bones would heal nicely and that there did not appear to be any evidence of neglect.
On July 9, 1992, Robbins visited Dr. Stecker’s office again. During that visit, Robbins complained that Laura was “wobbly” and unbalanced. Dr. Stecker did not find any signs of head trauma. Dr. Stecker decided that Robbins had given Laura too much juice. Because Laura had been on multiple antibiotics frequently for a chronic ear infection, Dr. Stecker opined that there might be an overabundance of yeast in her stomach, causing her to become intoxicated.
On July 21, 1992, Robbins returned with Laura again. Dr. Stecker was not there, but her husband, Dr. Elton Stecker, was present and treated Laura. Dr. Elton Stecker’s records state that Laura had been nauseated the previous day and had vomited that morning. When the child awoke, there was swelling on the right side of the head in the temple area and over the right eye. Robbins told Dr. Elton Stecker that the bruise above the right ear was caused by a fall the week before.
The next morning, on July 22, 1992, Robbins made two phone calls to the Stecker clinic. In the first of those calls, she stated that she believed Laura was having an allergic reaction and that the swelling over the right eye had gone down but that the other eye had become swollen. Later on that morning, Robbins called and stated that both eyes seemed to be swollen and that Laura was running a temperature of approximately 99.5 degrees. She was told by the nurse to bring Laura in.
When Laura was brought into the clinic, Dr. Rheeta Stecker examined her. Prior to this examination, she referred to the notes taken by her husband the previous day. Both of Laura’s eyes now appeared to be swollen, and there was some purplish discoloration. Robbins informed Dr. Stecker that the child had fallen down several stairs the week before and that several of the bruises were related to that fall. Robbins asked if the swelling of the upper lids could be related to allergies or to spider bites. Robbins told her that Laura had had a watery nasal discharge for the last few days which she thought was due to an allergy. At that point, Dr. Stecker discussed the possibility of abuse with Robbins. Robbins informed her that it was highly unlikely, but that her son, Matthew, might have dropped Laura. She further stated that her boyfriend, Joe Rank, was not the type to have a bad temper. Dr. Stecker did not report her suspicions to the Arkansas Department of Human Services.
On September 12, 1992, Robbins was working and left Laura with Joe Rank. When she returned Rank informed her that Laura was taking a nap and that she had fallen down in the driveway. When Robbins went to wake Laura from her nap, she found Laura lying in bed and moving her head from side to side. When she took a closer look, she saw what appeared to be either juice or blood draining from the corner of her mouth. When she picked Laura up, the child was limp. She immediately took Laura to St. Joseph’s Regional Health Center in Hot Springs. At St. Joseph’s, Laura was not breathing and did not have a pulse. She was transported to Arkansas Children’s Hospital in Little Rock where she was later pronounced dead.
The medical examiner, Dr. William Sturner, determined that the cause of death was homicide. He found four bruises on the child’s scalp and bruises on her left hand and arm. He also found abraded contusions on the mid-chest of the body and on the face, forehead, the right eyebrow, and the right cheek. The most significant injury, he concluded, was a fracture to the child’s skull, with corresponding brain damage. Dr. Sturner opined that those injuries would have had to have been caused by a marked or severe force.
Suit was commenced on behalf of Laura’s estate. The suit alleged that Joe Rank intentionally assaulted Laura Fullbright and that her mother, Mary Ellen Robbins, negligently placed Laura in the care of Rank with the knowledge of his past abusive behavior. Medical negligence was alleged against Dr. Rheeta Stecker in addition to her failure to report her suspicions of child abuse under the child abuse reporting statute. Prior to trial, Dr. Stecker moved twice for summary judgment on the basis that the alleged actions on her part were not violative of the child abuse reporting statute. The second motion included a prayer for summary judgment on the medical malpractice claim against her. The trial court denied the motions.
The case went to trial, and the trial court, at the conclusion of the plaintiffs case, granted a partial directed verdict in favor of Rheeta Stecker on the issue of medical malpractice after refusing to allow the plaintiffs expert, Dr. Frederick Epstein, to testify as to the standard of medical care concerning child abuse in Hot Springs. The case proceeded on the remaining issues, and the jury returned a verdict against Joe Rank in favor of Matthew Robbins, Laura’s half-brother, in the amount of $1,000,000. The jury found in favor of Mary Ellen Robbins and Dr. Rheeta Stecker on the remaining failure to report count. Judgment was entered accordingly.
I. Medical Expert Witness
The Administrator’s first argument is the trial court erred in excluding the testimony of Dr. Frederick Epstein on the standard of care for diagnosing child abuse in Hot Springs, as required by the Medical Malpractice Act and specifically by Ark. Code Ann. § 16-114-206(a)(1) (1987). Dr. Epstein testified that he was an emergency medicine physician from Panama City, Florida. His curriculum vitae confirmed that he was a highly qualified physician.
Dr. Epstein testified that Panama City had a population of approximately 80,000 people. He further testified that in terms of the medical facilities available, Panama City was “very similar” to Hot Springs and that he was unaware of any facilities needed to detect possible child abuse that would have been available in Panama City but not available in Hot Springs. He added that he was familiar with the type of practice in which Dr. Stecker was involved and had formulated an opinion about the standard of care. At that point, the Administrator requested Dr. Epstein’s opinion on whether or not Dr. Stecker breached the standard of care.
Prior to the opinion being rendered, Dr. Stecker’s attorney asked to voir dire the witness on his qualifications. Dr. Epstein admitted that he was an emergency room specialist rather than a family practitioner and that he did not practice family medicine. He added that the difference in the two specialties was that family practitioners have an on-going doctor/patient relationship and that that was usually not present in emergency room practice. He testified, nevertheless, that the standard of care for doctors in detecting and reporting child abuse would be the same for both emergency room physicians and family practitioners. Counsel for Dr. Stecker then objected to the admission of Dr. Epstein’s opinion on the standard of care relating to diagnosis of child abuse on grounds of dissimilar practice and locality. The trial court conditionally granted Dr. Stecker’s motion to exclude the expert testimony but allowed the Administrator to make a proffer of proof.
The Administrator first proffered the testimony of Dr. Stecker concerning the medical community in Hot Springs. Dr. Stecker, under questioning by the Administrator’s counsel, testified that Hot Springs, a community with a population of approximately 35,000, had two acute and two subacute hospitals. One of the acute hospitals usually had an occupancy of about 120 beds, although it had a capacity of around 270. The other acute care hospital had a capacity of closer to 70 beds, although it had an average occupancy of about 60 patients. Dr. Stecker testified that although the hospitals were located in Hot Springs, both of the hospitals drew patients from throughout Garland County. She also testified that there were approximately 150 physicians in Hot Springs, eight or nine of whom were pediatricians. She added that the only equipment needed in the evaluation of Laura Fullbright was X-ray equipment and possibly a CT scanner, both of which were available to her. She further testified that the injuries that she encountered in her examination of Laura Fullbright were injuries that might be treated by an emergency room physician.
After Dr. Stecker’s testimony, the Administrator recalled Dr. Epstein as part of his proffer. Dr. Epstein opined that based on the testimony of Dr. Stecker it was his opinion that Panama City was a comparable locality to Hot Springs. Dr. Epstein was then handed a Hot Springs telephone book and was asked if he could draw any conclusions about the makeup of the medical community based on the yellow pages. From that, he testified that the range of specialties and subspecialties available in Hot Springs was comparable to the range of specialties available in Panama City. He stated that the majority of patients that he encountered in the emergency room were not suffering from life-threatening injuries and that, although it was not intended for that purpose, the emergency room is used by some as a clinic. Therefore, in reality, he was able to know some of the patient’s families and history as well as Dr. Stecker might in her family practice. He added that sometimes he saw patients as many as three times a month. He concluded by stating that his opinion on this case turned more on the history of the case and the physical examinations than on any technology that was or was not available to Dr. Stecker. A Hot Springs physician, he maintained, would apply the same standards in taking the history of the case and performing the physical examination that a Panama City physician would.
After the Administrator’s proffer of Dr. Epstein’s qualifications, the trial court made the following ruling on the admissibility of Dr. Epstein’s opinion testimony:
The one burdensome thing that concerns the Court is that you have a highly skilled expert, emergency room practice, has written numerous times, has a curriculum that’s several pages. And here is a family practitioner. And I just hesitate to find that that highly skilled doctor would know what the standard is here in Hot Springs, Arkansas, or this locale. For that reason, I would exclude it.
Dr. Epstein then proffered his opinion that after reviewing the documentation, he believed Dr. Stecker failed to meet the standard of care by not reporting the suspected child abuse to investigating agencies on July 22, 1992.
The determination of an expert witness’s qualification is within the discretion of the trial judge. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989); McElroy v. Benefield, 299 Ark. 112, 771 S.W.2d 274 (1989); Phillips v. Clark, 297 Ark. 16, 759 S.W.2d 207 (1988). However, this discretion is not absolute, and this court will reverse, if the trial court abuses its discretion. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991).
a. Different Specialty
In Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986), this court expressed its agreement with the reasoning of Evans v. Ohanesian, 38 Cal. App. 3d 125, 112 Cal. Rptr. 236 (1974), in which the California court stated:
Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent. [Citation.] The reason for not requiring specialization in a certified field is obvious. Physicians are reluctant to testify against each other. [Citations.] Consequently, when an expert can be found, it is immaterial whether he is a general practitioner or a specialist providing he has knowledge of the standard of care in any given field; otherwise, the plaintiff could never prove a case against a specialist unless he has an expert of the particular specialty, and the plaintiff would never be able to sue a general practitioner unless he had a general practitioner who was willing to testify as an expert. [Citation.]
290 Ark. at 192-193, 718 S.W.2d at 101. We then went forward and rendered this holding:
We do hold that when the particular issue relates to a question within the general practitioner’s own area of expertise, he is not prohibited by the malpractice statute from testifying upon that question as an expert.
290 Ark. at 194, 718 S.W.2d at 101.
In the instant case, Dr. Epstein testified that the standard of care for doctors in detecting and reporting child abuse would be the same for emergency room physicians and family practitioners and that no specialized technology available only to an emergency room physician was necessary for these evaluations. Indeed, Dr. Stecker agreed that she had the necessary equipment on hand to detect child abuse. But she contended that Dr. Epstein’s emergency room practice and expertise made him unsuitable to testify about the standard of care for a family practitioner without emergency room expertise.
We disagree. What Dr. Epstein seemed to be asserting is that the knowledge necessary to evaluate a potential child abuse situation is one that is basic to the science of medicine and is the same regardless of whether the physician had a family medicine practice or an emergency room practice.
In this case, he based his opinion on the series of visits which Laura and her mother made to Dr. Stecker’s office in June and July of 1992 and the doctors’ notes and records respecting each visit. Had only one visit been made with signs of neglect or abuse, Dr. Stecker’s argument about dissimilar practices and knowledge of the family might have more merit. But here, in light of the pattern of visits [June 12, 1992 (broken arm); July 9, 1992 (wobbly demeanor); July 21, 1992 (swollen right temple and right eye); and July 22, 1992 (both eyes swollen and bruised)], and the medical records available, we see no reason why Dr. Epstein’s opinion would not be apposite. We are further persuaded that under these circumstances the variances in practices would not be a pivotal factor in diagnosing child abuse. See Cathey v. Williams, supra.
b. Similar Locality
Nor do we view Panama City, Florida as sufficiently dissimilar to Hot Springs to disqualify Dr. Epstein from testifying about child abuse. This court has addressed the similar locality rule in several cases. In Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1975), we wrote:
The rule we have established is not a strict locality rule. It incorporates the similar community into the picture. The standard is not limited to that of a particular locality. Rather it is that of persons engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community. The similarity of communities should depend not on population or area in a medical malpractice case, but rather upon their similarity from the standpoint of medical facilities, practices and advantages. For example, appellants state in their brief that it was uncontroverted that the medical standards of practice in Jonesboro, Little Rock, and Memphis are comparable. Thus, they could be considered similar localities.
258 Ark. at 770, 531 S.W.2d at 948-949. (Citations omitted.)
An expert witness need not be one who has practiced in the particular locality, or one who is intimately familiar with the practice in it in order to be qualified as an expert in a medical malpractice action, “if an appropriate foundation is established to demonstrate that the witness is familiar with the standard of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities.” White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978). Conclusory statements that the physician is so familiar are not enough. See Grice v. Atkinson, 308 Ark. 637, 826 S.W.2d 810 (1992). But that is not the situation in the case before us.
Here, unlike Grice v. Atkinson, supra, the trial court was provided evidence of similar localities through the testimony of Dr. Stecker and Dr. Epstein. There is, too, the irresistible suggestion that whether child abuse was evident is a question that spans localities irrespective of size and available technology. We further do not believe that by being called to proffer testimony about practice in Hot Springs Dr. Stecker was forced to be an expert against herself as contemplated by Ark. Code Ann. § 16-114-207(3) (1987).
In light of the above, we conclude that the trial court abused its discretion in excluding the medical expert testimony of Dr. Epstein. We reverse and remand the matter for a new trial solely for the claim made under the Medical Malpractice Act.
We next address whether a remand of the medical malpractice claim for trial would be a futile and useless act. See Alexan der v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995). Dr. Stecker contends that it would be since there is no cause of action for medical negligence for failure to report child abuse and, secondly, since there is no proof that the failure to report caused the death of Laura more than 1 1/2 months later. In essence, Dr. Stecker contends that the absence of a cause of action for medical negligence is another reason to affirm the directed verdict by the trial court.
Dr. Stecker cites us to Cechman v. Travis, 202 Ga. App. 255, 414 S.E.2d 282 (1992), for the proposition that a medical negligence claim does not lie under these facts. In Cechman, the doctor of a child later killed by an abusive father failed to report suspected child abuse after one examination in the emergency room. The Georgia Court of Appeals affirmed a grant of summary judgment in part because common law medical negligence did not impose a legal duty to discover and report a case of possible child abuse.
The scope of medical injuries giving rise to potential negligence claims in Arkansas, however, is apparently much broader than that in Georgia. “Medical Injury” is defined under the Medical Malpractice Act as “any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; ... or from failure to diagnose, ... or otherwise arising out of or sustained in the course of such services.” Ark. Code Ann. § 16-114-201(3) (1987). We conclude that this broad language encompasses a cause of action for failure to diagnose child abuse under the facts of this case. Moreover, counsel for Dr. Stecker conceded at oral argument that a child’s death the day after suspected child abuse might be actionable as medical malpractice. We believe that the trial court appropriately refused to enter summary judgment in favor of Dr. Stecker on this point.
There is, then, the question of causation. Dr. Stecker points to the absence of a causative relationship as still another reason to affirm the directed verdict. But causation is ordinarily a fact question for the jury to decide. See Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991). Here, Doug Shuffield, the brother of Robbins and an investigator for the Department of Human Services, testified for the Administrator. He stated that had Dr. Stecker voiced suspicion to his agency of child abuse involving Laura, he would have recommended that an investigation be commenced. Though he believed that the complaint would have ultimately been deemed “unfounded,” he acknowledged that in some instances knowing someone is going to be investigated might offer protection against abuse. He agreed that it might cause an abuser “to be more careful,” and “mind their manners from the standpoint of abuse.”
This stands to reason. Reporting child abuse would lead to an investigation which could result in some prophylactic action after the State entered the picture. In this case, Laura’s father, Jim Fullbright, might have been alerted to take some legal action. The failure to report, however, allows the matter to fester unabated. We conclude that a fact issue for the jury exists in this case on whether the failure to diagnose and report was a partial cause of the death of Laura Fullbright.
II. Directed Verdict
The Administrator also contends that the trial court erred in not directing a verdict in its favor on the count of failure to report reasonably suspected child abuse under § 12-12-507. According to the Administrator’s contention, Dr. Stecker admitted that she suspected child abuse but did nothing about it. As a result, the Administrator urges that a directed verdict on this point was appropriate. We disagree. There is no doubt that Dr. Stecker had suspicions but the question is whether she had reasonable cause to suspect abuse. That was an issue for resolution by the jury, and the jury resolved the issue in favor of Dr. Stecker.
Furthermore, we have made it clear that we are extremely reluctant to affirm a directed verdict on behalf of a plaintiff. Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993). In Young we quoted with approval from United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542, 547 (8th Cir. 1958):
Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.
311 Ark. at 555, 845 S.W.2d at 512; see also Potlatch Corp. v. Missouri Pacific R.R. Co., 321 Ark. 314, 902 S.W.2d 217 (1995). That test is not met in this case, and the trial court committed no error in denying the Administrator’s motion for a directed verdict.
We will not entertain Dr. Stecker’s cross-appeal on the “willful” component of the child abuse reporting statute because Dr. Stecker prevailed on that claim. See Walker v. Kazi, 316 Ark. 616, 875 S.W.2d 47 (1994).
Affirmed in part. Reversed and remanded in part.
Glaze, J., concurs.
Corbin, J. dissents. | [
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Bradley D. Jesson, Chief Justice.
The appellant was convicted of possession of cocaine with intent to deliver, Ark. Code Ann. § 5-64-401 (Repl. 1993), and of being a felon in possession of a firearm, Ark. Code Ann. § 5-73-103(a)(l) (Repl. 1993). As an habitual offender, he received sentences of forty-four years on the drug charge and twelve years on the firearms charge, the sentences to run concurrently. His arguments for reversal concern the sufficiency of the evidence to support his convictions, the denial of his motion to suppress, and four evidentiary rulings by the trial court. We find no error and affirm.
The appellant was the owner of an automobile detail shop in Vian, Oklahoma, which is about ten miles west of Sallisaw, Oklahoma. On December 21, 1993, he thoroughly cleaned and detailed a 1989 black Ford Ranger pickup belonging to a Mr. Sammy Henry. According to the appellant, he planned to drive the vehicle to Fort Smith, Arkansas to visit relatives and pick up his fiancee from work. She was not scheduled to leave work until late that evening , but the appellant left for Fort Smith sometime during the day. Along the way, he stopped in Sallisaw where he picked up his cousin, Eric Johnson.
Sometime after 9:30 that same evening, Detective Wayne Barnett of the Fort Smith Police Department was contacted by a confidential informant. According to the trial testimony, the informant told the detective that two black males from the Sallisaw, Oklahoma area, driving a black 1989 Ford Ranger pickup with Oklahoma tags, were selling crack cocaine. The informant stated further that the vehicle was parked in front of a residence near the intersection of 12th and G Streets in Fort Smith.
Shortly thereafter, Barnett contacted Detective Binyon with the Department’s narcotics unit. Binyon testified that the call came at approximately 9:55 p.m. Barnett relayed the information he had received from the informant. Within five minutes, Binyon and his partner, Detective Bruce, travelled in an undercover vehicle to an alley near the intersection of 12th and G Streets. From that vantage point, they conducted visual surveillance and observed a small, black Ford pickup with Oklahoma tags parked in front of a residence'at 12th and G Streets. According to Binyon, he had, in the past, executed a search warrant at the residence and had made several arrests at the intersection, an area well known for drug trafficking.
The detectives watched as three or four people came up to the truck, stayed for a short period, then left. Detective Bruce testified that two black males were continuously around the pickup, while other individuals came and went. About twenty minutes into the surveillance, the two men who had been standing by the truck got into it and pulled away. Bruce and Binyon called a patrol unit, and the truck was stopped before it had travelled more than a block and a half. The appellant was driving the truck and Eric Johnson was the passenger.
When Bruce and-Binyon arrived at the stopped vehicle, they asked the appellant and Johnson to exit the vehicle and told them of the reason for the stop. Bruce entered the truck on the driver’s side and immediately observed a plastic bag lying on the hump between the split bench seats. The bag contained a substance which the State Crime Lab later concluded was 1.868 grams of cocaine. Binyon, entering from the passenger side, found a .38 caliber revolver under the passenger seat. He also found, in the same area as the plastic bag, a pill container which held ten small chunks of a rock-like substance. The State Crime Lab later deter mined that the substance was .095 grams of cocaine base. Both detectives testified that the plastic bag and the pill container were in plain view between the driver and passenger seats.
After the contraband was found, the appellant and Eric Johnson were placed under arrest. They were tried together on the same charges and both found guilty.
For his first point of error, the appellant argues that the evidence was insufficient to support his conviction on either charge. In particular, he argues that the state did not prove that he was in possession of either the controlled substance or the firearm. He also argues that the state did not prove any intent to deliver the controlled substance.
Evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. On appeal, we view the evidence in a light most favorable to the appellee and look only to that evidence which supports the verdict. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). When possession of contraband is an element of an offense, the state need not prove literal, physical possession. Constructive possession can be implied when the contraband is in the joint control of the accused and another person. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). However, joint occupancy of the vehicle, standing alone, is not sufficient to establish possession. There must be some other factor linking the accused to the contraband. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994).
Among the “linking” factors this court has considered in cases involving vehicles occupied by more than one person are: 1) whether the contraband is in plain view; 2) whether the contraband is found with the accused’s personal effects; 3) whether the contraband is found on the same side of the car seat as the accused was sitting or in near proximity to it; 4) whether the accused is the owner of the automobile, or exercises dominion and control over it; and 5) whether the accused acted suspiciously before or during the arrest. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). In addition to the five factors set out in Plotts, we have also considered the improbability that anyone other than the occupants of the vehicle placed the contraband in the vehicle, and the improbable nature of the accused’s explanation for his journey. Mings v. State, supra.
In this case, the cocaine was in plain view. It was lying in proximity to the appellant in an area easily accessible by him. The handgun, while not in plain view, was also in an area accessible to the appellant. Detective Binyon testified that the truck cab was so small that anyone in the vehicle had access to anything inside. Additionally, the appellant exercised dominion and control over the vehicle. Although he did not own it, he had driven it from Vian, Oklahoma for his own personal purposes and had been the only one to drive it that day. Actual ownership is not required. Littlepage v. State, supra. Further, the appellant testified that he had thoroughly cleaned the vehicle prior to using it and would have noticed any contraband in it. Therefore, the jury could have dismissed the possibility that the drugs or the gun were in the truck when the appellant borrowed it. The jury might also have inferred that one who possesses cocaine with intent to deliver might also possess a handgun. Detective Binyon testified that it was common to find handguns in close proximity to drugs. This court has recognized that firearms are considered a tool of the narcotics dealer’s trade. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Finally, the jury might have found the appellant’s explanation that he came to Fort Smith long before his fiancee was scheduled to leave work improbable. Taken together, these factors amount to substantial evidence to support the jury’s determination that the appellant was in possession of the cocaine and the firearm.
The appellant also claims there was insufficient evidence of intent to deliver the cocaine. In addition to the evidence already set out in this opinion which would support that inference by the jury, the amount of cocaine possessed — in excess of one gram —created a statutory presumption that it was possessed with the intent to deliver. See Ark. Code Ann. § 5-46-401(d) (Repl. 1993). This is sufficient evidence of the element of intent. Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). The appellant attempts to argue that the presumption is unconstitutional because it shifts the burden of proof away from the state. He did not raise this argument below, so it cannot be raised on appeal. Williams v. State, 320 Ark. 211, 895 S.W.2d 913 (1995). In any event, the presumption is rebuttable and has withstood similar constitutional challenges in this court. Hooper v. State, 257 Ark. 103, 514 S.W.2d 394 (1974); Stoner v. State, 254 Ark. 1011,498 S.W.2d 634 (1973).
For his next point, the appellant argues that the search of his vehicle was the result of an illegal stop and detention. Rule 3.1 of the Arkansas Rules of Criminal Procedure provides, in pertinent part, as follows:
A law enforcement officer . . . may . . . stop and detain any person who he reasonably suspects is committing, has committed or is about to commit (1) a felony...if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
In Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982), we said that the justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized and articulable reasons indicating the person or vehicle may be involved in criminal activity. We also look to the definition of “reasonable suspicion” as set out in Ark. R. Crim. P. 2.1, which reads:
‘Reasonable suspicion’ means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
The thrust of the appellant’s argument is that the information provided by the confidential informant was so unreliable and so vague that it could not provide such reasonable suspicion. It is true that there was minimal evidence to show the reliability of the informant in this case. Detective Barnett testified that the informant had not provided him with any information leading to an arrest. However, Barnett had been able, in the past, to confirm the veracity of some of the information provided. Further, he was aware that the informant had worked with other detectives on cocaine cases. While we do not rule on whether such evidence would be sufficient to establish probable cause, see Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978), we hold that this evidence of reliability, combined with the accuracy of the informant’s information and the detective’s testimony regarding the area’s reputation for drug traffic, was enough to give the officers “specific, particularized and articulable reasons indicating the person or vehicle may be involved in criminal activity.” Hill v. State, supra.
Likewise, we hold that the informant’s description was not so vague as to remove any reasonable suspicion for the stop and detention. While we do not rule on whether such a description would be sufficient to form the basis for an arrest, see Branam v. State, 277 Ark. 204, 640 S.W.2d 445 (1982), we hold that the information provided was sufficiently detailed that, when combined with all other factors, it gave the officers a legal basis for the stop.
We now turn to the evidentiary issues. We initially note that the trial court is given great latitude on questions regarding admissibility of evidence and will not be overturned absent an abuse of discretion. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).
Before trial, appellant filed a motion in limine asking that the state not be allowed to mention that the narcotics officers had received a call saying there were two black males from the Sallisaw, Oklahoma area who were selling cocaine or had it in their possession. Appellant claimed the evidence would be highly prejudicial, apparently making an argument pursuant to A.R.E. Rule 403. The evidence had a high probative value. It served to explain the reason behind the officers’ surveillance of the appellant’s activity. In addition, the trial court gave a limiting instruction to the jury, informing them that they were not to look to the evidence for the truth of the matter asserted, but to show why the officers acted as they did. We have said that a limiting instruction may remove the inflammatory effect of evidence. Suggs v. State, 317 Ark. 541, 879 S.W.2d 428 (1994); Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). In view of the probative nature of the evidence and the trial court’s limiting instruction, we cannot say that the court abused its discretion in admitting the evidence.
The second evidentiary issue concerns the state’s use of the appellant’s prior convictions for impeachment purposes. See A.R.E. Rule 609. The appellant’s credibility was impeached with a 1984 robbery conviction and a 1988 sexual abuse conviction. The appellant contends that, since the state had the robbery conviction at its disposal, use of the sexual abuse conviction was unnecessary and prejudicial. In the recent case of Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995), we held that the trial court has discretion in determining the admissibility of prior convictions for impeachment purposes. We also noted that Rule 609 places no limit on the number of convictions used. The appellant cites us to Jones v. State, 271 Ark. 379, 625 S.W.2d 471 (1981), in which we held it was error to admit evidence of a sexual abuse conviction. However, the Jones case involved an appellant charged with sexual abuse. Our ruling was predicated on the similar nature of the crime charged and the prior conviction.
The third evidentiary point concerns a letter written by the appellant’s co-defendant, Eric Johnson, to a federal magistrate judge. The letter read as follows:
Dear Miss Magistrate Judge Beverly Stites.
I Eric Johnson, hereby give the following statement. Mr. Albert Kilpatrick gave me a ride on the night of December 22nd [sic] year of 1993, and did not know of the contents which was placed in his vehicle.
During Johnson’s testimony, he said nothing which indicated that the appellant had any knowledge of the contraband in the vehicle. The trial judge refused to admit the letter because it was consistent with Johnson’s testimony. The judge’s ruling was correct. Extrinsic evidence of a prior inconsistent statement is allowed under certain circumstances. A.R.E. Rule 613(b). Since there was nothing in the letter which contradicted anything Johnson said on the witness stand, the letter would have no impeachment value and would strictly be cumulative. We find no abuse of discretion in the exclusion of this evidence.
For his final argument, the appellant claims that the trial court should have granted a mistrial when, during his cross examination, he was asked if he knew of any reason why someone would call the police and say there were two people from Sallisaw dealing crack out of a Ford Ranger pickup. Appellant asked for a mistrial, saying the jury had been told to consider that evidence for a specific purpose only and that the state’s question gave “too much credence” to the informant’s report.
A mistrial is a drastic remedy proper only when there is error beyond repair which cannot be corrected by any curative relief. A trial court’s denial of a mistrial will be overturned only for an abuse of discretion or manifest prejudice to the appellant. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The admission of this evidence, even if it can be considered error, was not so drastic or prejudicial as to warrant a mistrial. The jury had already received two limiting instructions on the nature of this evidence. The information provided by the informant had already come into evidence through the state’s witnesses. Under these circumstances, we cannot say the appellant suffered such prejudice as to call for a mistrial.
Affirmed.
Although the appellant testified that his fiancee’s shift ended at 10:45 p.m., there was also evidence that her usual hours were 3:45 p.m. until 12:00 midnight or 1:00 a.m.
The appellant does not argue that the letter falls within the ambit of A.R.E. Rule 801(d)(l)(ii) which allows use of prior consistent statements in certain instances. | [
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Tom Glaze, Justice.
This case involves a petition for writ of prohibition. On March 21, 1994, petitioner Mark Bonnell’s former wife, Brenda Bonnell, filed a complaint for replevin against Bonnell in municipal court for possession of a 1984 Toyota, valued at $3,900.00. Mrs. Bonnell claimed right of possession through title to the vehicle and through the couple’s December 20, 1992 decree of divorce. On March 21, Mr. Bonnell was served with a summons and notice of petition for order of delivery, but he failed to object within five days pursuant to Ark. Code Ann. § 18-60-808(b) (1987). On April 5, the municipal court issued an order of delivery and the vehicle was seized.
Two days later, Mr. Bonnell filed a motion to dismiss his ex-wife’s complaint. In his motion he challenged the municipal court’s subject matter jurisdiction, requested vacation of the order of delivery, and requested Rule 11 sanctions. Mrs. Bonnell responded, claiming her ex-husband had waived his challenge by not responding within the required five day period.
The municipal court later found it did not have jurisdiction because the value of the vehicle in dispute exceeded the $3,000.00 original jurisdictional amount required by Ark. Code Ann. § 16-17-704(a)(4) (Repl. 1994). Upon Mrs. Bonnell’s request, the municipal court ordered the case transferred to circuit court. Mr. Bonnell then refiled his motions to dismiss and for sanctions in circuit court. He claimed that the municipal court correctly determined it had no jurisdiction of Mrs. Bonnell’s action and that the court in so holding should have dismissed rather than have transferred the case to circuit court. Mrs. Bonnell amended her complaint in circuit court to include an additional claim for $14,000.00 that she asserted was due her under the parties’ divorce decree. Mr. Bonnell renewed his motions, and later argued to the circuit court that the chancery judge had already decided the $14,000.00 claim.
The circuit court conducted a hearing on October 27, 1994, and denied Mr. Bonnell’s motions, ruling that it had subject matter jurisdiction over the replevin action. The circuit court recessed without deciding whether Mrs. Bonnell was precluded from pursuing her $14,000.00 claim. Bonnell subsequently petitioned this court for a writ of prohibition.
A writ of prohibition is an extraordinary writ, which is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994). When considering a petition for writ of prohibition, jurisdiction is tested on the pleadings, not the proof. Nucor-Yamato Steel Co. v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994). Prohibition is only proper when the jurisdiction of the trial court depends on a legal rather than a factual question. Id.
First, we point out that both municipal and circuit court may have jurisdiction of a replevin action. Ark. Code Ann. § 18-60-804 (1987). Section 18-60-804 provides as follows:
(a) In all cases . . . wherein a party claims a right of possession of property in the possession of another, the party may apply to the circuit court or the municipal court for issuance of an order of delivery of the property.
4= * 4=
(c) The petition may be brought in the municipal court at the election of the party so filing, and the municipal court shall have authority to give notice and hear the petition in the same manner as the circuit court. (Emphasis added.)
Generally speaking, a replevin action can be maintained only by one who has a general or special property interest in a thing taken or detained at the commencement of the action. Anderson v. Sharp County, Arkansas, 295 Ark. 366, 749 S.W.2d 306 (1988) (citation omitted). And such right of possession or ownership must be by a title recognized in law. Id.
The only limitation on a municipal court’s authority to act on a claim in replevin is found at Ark. Const, amend. 64 and Ark. Code Ann. § 16-17-704(a)(4), wherein the municipal court is given original jurisdiction, coextensive with the county where it is situated, and concurrent with the circuit court in matters of contract where the amount in controversy does not exceed $3,000.00, excluding interest. A circuit court, on the other hand, has jurisdiction over a claim in replevin for personal property valued above $3,000.00. See Ark. Const. art. 7 § 11; Ark. Code Ann. § 16-13-201 (Repl. 1994) and § 18-60-804. In the present case, Mrs. Bonnell’s complaint alleged that she possessed title to a 1984 Toyota vehicle valued at $3,900.00 which she obtained under the Bonnells’ divorce decree and which was being unlawfully detained by Mr. Bonnell. Clearly, Mrs. Bonnell’s replevin action was properly within the jurisdiction of the Washington County Circuit Court, and, as a consequence, a writ of prohibition does not lie in these circumstances.
Mr. Bonnell argues further, however, that the municipal court had no authority to transfer Mrs. Bonnell’s replevin action to circuit court in the first place, and instead the municipal court was obliged to dismiss, not transfer Mrs. Bonnell’s case. We disagree.
Both Arkansas statutory law and our Rules of Civil Procedure provide authority permitting the municipal court to transfer Mrs. Bonnell’s action as it did here. Ark. Code Ann. § 16-17-702 (1987) provides that all civil cases filed in municipal court (not subject to the Small Claims Procedure Act) shall be subject to the Inferior Court Rules, the Rules of Civil Procedure, and the Uniform Rules of Evidence. Section 16-17-702 reflects the General Assembly’s efforts to implement Amendment 64 to the Arkansas Constitution which enlarged the jurisdiction of municipal courts. This same statutory principle is embodied in Inferior Ct. R. 10, as well. Inferior Ct. R. 10 states that, unless otherwise allowed, “the Arkansas Rules of Civil Procedure and the rules of evidence shall apply to and govern matters of procedure and evidence in the inferior courts.” And finally, this court’s Ark. R. Civ. P. 12(h)(3) provides the following:
Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or direct that the case be transferred to the proper court. (Emphasis added.)
As is clearly provided by Arkansas’s statutory law and court rules, the municipal court had authority to transfer this cause to the Washington County Circuit Court after concluding Mrs. Bonnell’s replevin action exceeded the jurisdictional amount. Mr. Bonnell defended Mrs. Bonnell’s initial action by asking that it be dismissed, but acting under Rule 12(h)(3), the municipal court appropriately transferred the action instead. Mr. Bonnell does not challenge the constitutionality of these court rules or statute, and we are unaware of any such grounds that would limit the municipal court’s discretion in transferring a replevin action to circuit court in circumstances such as those presented here.
Again, Mrs. Bonnell in her complaint claimed right ful possession of the vehicle through “title showing her as owner.” While she also claimed possession through the couple’s divorce decree, it is the claim by way of title that places jurisdiction properly in circuit rather than chancery court. See Johnson v. Swanson, 209 Ark. 144, 189 S.W.2d 803 (1945). Had Mrs. Bonnell claimed right to possession from the divorce decree alone, jurisdiction to enforce the terms of the decree would have been properly in chancery court through exercise of its contempt powers. See Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983).
For the foregoing reasons, we deny the petition.
Dudley, Newbern and Roaf, JJ„ dissent.
We note that, although the dissenting opinion alludes to a number of old Arkansas cases in support of its vein that a municipal court cannot transfer a case to circuit court, it is unnecessary to discuss them since they predate Amendment 64 and the General Assembly’s enactment of § 16-17-702.
We reiterate that, under § 18-60-804(c), a municipal court must notify defendants and hear replevin actions in the same manner as circuit court, and actions commenced in municipal court depend upon the same standards applicable to actions in circuit and chancery courts. See Inferior Ct. R. 3 and its Reporter Notes.
We further note the dissenting opinion’s confusing reference on whether Mrs. Bonnell properly commenced her replevin action, and its mentioning hypothetical problems involving a statute of limitations. These issues were never raised below or argued on appeal, likely because Mrs. Bonnell’s complaint was factually detailed and her cause for replevin was lawfully stated and properly served. Because municipal court actions are subject to Arkansas Rules of Civil Procedure, § 16-17-702, the dissenting opinion’s prediction of municipal judges and parties abusing the court process cannot happen any more readily than in any circuit or chancery court subject to the same rules. | [
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Bradley D. Jesson, Chief Justice.
Appellant Harold Clark appeals from an entry of default judgment and sanctions against him under Arkansas Civil Procedure Rule 37 for failure to respond to a court order to submit discovery requests. The trial court entered judgment against Clark for the amount prayed for in appellee Michael Motor Company, Inc.’s amended replevin complaint for conversion of an automobile, which included $1547.34 for the value of the car, $3200.00 in punitive damages, and $149.61 in costs. The trial court also imposed $896.40 in sanctions against Clark and his attorney, John D. Garnett. On appeal, Clark asserts that the trial court erred in awarding damages in a summary manner without a hearing as to damages. We affirm the entry of the default judgment and the sanctions imposed for discovery violations, but reverse and remand as to the damages awarded for conversion.
This case involves a lengthy dispute over a 1983 Oldsmobile Delta Royale. In 1991, separate defendant Robert Brown purchased the car from appellee Michael Motor Company, Inc. (“Michael Motors”), which retained a purchase money security interest in the vehicle. Brown took the car to appellant Harold Clark, d/b/a Harold Clark & Son, an auto repair shop, for repair and storage. Brown defaulted, and in late 1992, Michael Motors filed a replevin complaint against Brown and Clark. Clark answered that the car was a total loss, and that his storage lien was superior and exceeded the salvage value of the vehicle. Michael Motors amended its complaint to allege that Clark had committed conversion, and prayed for $1547.34 in damages for the value of the car as converted, and $3200.00 in punitive damages.
A summary of the relevant pleadings is as follows. On March 26, 1993, Michael Motors propounded interrogatories and a request for admissions to Clark. On June 23, 1993, the trial court permitted counsel for Clark to disqualify, and ordered Clark to obtain substitute counsel and answer the interrogatories and request for admissions within 20 days. On July 2,1993, Clark filed a motion to substitute attorney John D. Garnett as counsel. While the record indicates that Clark filed responses to the interrogatories and request for admissions on August 6, 1993, no certificate of service is attached to either pleading. Subsequently, on September 21, 1993, the trial court entered an order for partial summary judgment against Clark on the issue of liability, while reserving the issue of the amount of damages and punitive damages. Following a January 28,1994, hearing on Michael Motors’s motion to compel Clark to answer its interrogatories, the trial court entered an order nunc pro tunc on February 15, 1994, directing that Clark had seven days from the hearing in which to supplement, without sanctions, his response to interrogatories. Approximately one year later, on February 14, 1995, the trial court entered a default judgment against Clark, and assessed sanctions “for the $4774.34 prayed for in the First Amended Complaint,” $149.61 in costs, and $896.40 in sanctions against Clark and his attorney. Clark appeals from the order granting default judgment.
Under Ark. R. Civ. P. 8(d), averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied. See also Rice v. Kroeck, 2 Ark. App. 223, 619 S.W.2d 691 (1981). It is the law in Arkansas that a default judgment establishes liability, but not the amount of damages. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992). A defaulting defendant is entitled to a hearing to determine the amount of damages, and the plaintiff is required to introduce evidence of the damages. Id.; B & F Engineering v. Controneo, 309 Ark. 175, 830 S.W.2d 835 (1992). The defendant has the right to cross-examine the plaintiff’s witnesses, to introduce evidence in mitigation of damages, and to question on appeal the sufficiency of the evidence to support the amount of damages awarded. B & F Engineering v. Controneo, supra.
Michael Motors asserts that the trial court’s award was proper under Ark. R. Civ. P. 37. The rule provides that, after a trial court issues an order to compel an answer to an interrogatory, and the party still fails to comply with the trial court’s order, the trial court may enter a sanction against the offending party by, among other things, “rendering a default judgment against the disobedient party.” Ark. R. Civ. R 37(b)(2)(C).
Michael Motors further relies on our decision in Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). Contrary to its assertion, Goodwin is not on point. In that case, Goodwin sued an obstetrician and gynecologist for medical malpractice, claiming that he had negligently prescribed birth control pills to her, and that he had failed to diagnose that the pills caused her to suffer a blood clot. The case went to trial and resulted in a jury verdict for the physician. On appeal, we rejected Goodwin’s argument that the trial court erred in refusing to impose monetary sanctions against the physician’s attorneys, while holding that the limited sanctions awarded against the attorneys for the failure to make discovery were proper under Rule 37. Goodwin did not involve the use of Rule 37(b)(2)(C) to impose damages in the amount prayed for in the complaint, as there was a verdict for the defendant in the case.
Simply put, the trial court was wrong to award damages for the value of the car and punitive damages for conversion under Ark. R. Civ. R 37 without hearing evidence as to such damages. In Sphere Drake Ins. Co. v. Bank of Wilson, 307 Ark. 422, 817 S.W.2d 870 (1991), we held that there was no authority under Rule 37(b)(2)(C) for sanctions in the amount of damages prayed for when the damages are unliquidated. In that case, a bank filed suit against an insurance company after it refused to pay the loss on a building that had burned. The bank, which had a secured interest in the building, sought $31,724.47 in damages, including the amount of the debt, a 12 percent penalty, attorney’s fees, and costs. The bank propounded interrogatories to the insurance company. After the bank filed a motion to compel, the trial court gave the insurance company a direct order telling it when to answer. The insurance company filed its answer late, and the trial court entered an order of default judgment as to liability, and assessed damages in the amount of damages prayed for in the amended complaint. The bank appealed. We affirmed the granting of default judgment as to liability, but reversed as to damages, rejecting the bank’s position that the amount awarded was a sanction imposed on the insurance company for its failure to respond to the interrogatories.
Based on our holding in Sphere Drake, we must conclude that the trial court erred in awarding judgment pursuant to Rule 37(b)(2)(C) for the amount of damages prayed for in Michael Motors’s complaint, as the damages were unliquidated. Thus, while we affirm the $896.40 in sanctions imposed against Clark and his attorney, John D. Garnett, we reverse the judgment as to the $4923.95 awarded for conversion, and remand for a hearing as to damages.
Affirmed in part; reversed and remanded in part.
Dudley, J., not participating.
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Bradley D. Jesson, Chief Justice.
The appellant, Anthony Wayne Griffin, was charged and convicted of capital felony murder in Crittenden County Circuit Court and was sentenced to life imprisonment without parole. On appeal, he asserts seven points of error: (1) the trial court erred in failing to suppress statements Griffin made while in custody; (2) the trial court erred in refusing to grant his request for a continuance; (3) the overlapping between the capital murder and first-degree murder statutes allows the jury to make an unconstitutionally capricious choice of crime and punishment; (4) the trial court erred in refusing to give an instruction on second-degree murder; (5) the trial court erred in not granting a mistrial following a reference to crack cocaine; (6) the trial court erred in not granting a mistrial after mingling of jurors and witnesses; and (7) the trial court erred in failing to instruct the jury regarding the weight to be given to expert witnesses. We affirm.
Facts
On May 31, 1993, the body of Moten Wynne was discovered in the back bedroom of his home in Lehi, Arkansas. Lying face down with his hands and feet bound together and his mouth gagged, Wynne had been struck several times in the back of the head, apparently with an axe which was found nearby.
During custodial interrogation at the Clarksville, Tennessee Police Department, appellant Anthony Griffin confessed to the murder as follows. In late May of 1993, Griffin was working as an automobile mechanic for Willie Smith in Clarksville when he pocketed $500.00 that he had collected from one of Mr. Smith’s customers. He left with the money and headed west, arriving in West Memphis just before Memorial Day. While in the area, he saw the victim working on an automobile in the front yard of his home. Griffin helped Wynne repair the car, and Wynne gave Griffin two dollars and some cigarettes. Wynne flagged down a friend, and asked him to give Griffin a ride down to nearby Blue Lake. At the destination, Griffin did not have the $3.00 admission fee for Blue Lake, and hitchhiked back to Wynne’s house.
After Griffin and Wynne visited for approximately thirty minutes to one hour, Wynne announced that he had to get ready to go into town to eat. Griffin then hit the victim, making him lie down on the floor so that he could tie his hands and feet together. After dragging the victim to the back bedroom, Griffin “hog-tied” him, gagged him, and placed a blue blanket over his head. Griffin then searched the house and found two pistols, a shotgun, and a box of tools, all of which he loaded into Wynne’s automobile. Fearing that the victim might be able to get away, Griffin reentered the house, tore the phone off the wall, and hit Wynne in the head some five or six times with a hatchet. Griffin then left in Wynne’s car, later selling it in Nashville, Tennessee. Griffin likewise sold the three guns and the box of tools, while returning to Clarksville.
Griffin was charged by felony information in Crittenden County with capital felony murder. The State waived the death penalty. Over Griffin’s objection, the trial court admitted his four in-custodial statements to police, and a fifth statement given to Willie Smith by telephone. At the close of all the evidence, the jury returned a verdict finding Griffin guilty of capital felony murder. The trial court entered a judgment of conviction for capital felony murder and sentenced Griffin to life imprisonment without parole, from which he now appeals.
1. Admission of custodial statements
Appellant Griffin’s first allegation of error is that the trial court erred in denying his motion to suppress his four in-custodial statements to police, as well as a statement given to Willie Smith. While the record does not contain a written motion to suppress these statements, the trial court was evidently aware of Griffin’s objection to the admission of the statements, as it held an evidentiary Denno hearing on this issue in accordance with Jackson v. Denno, 378 U.S. 368 (1964), after which it declined to suppress Griffin’s statements.
At the hearing, Detective Marty Watson of the Clarksville, Tennessee Police Department testified that he was investigating Griffin on forgery charges and learned on June 14, 1993, that Griffin was in jail and wanted to talk to someone about the forgery case. At approximately 11:45 a.m. that day, Detective Watson went to the jail, read Griffin his rights, and had him sign a waiver-of-rights form. According to Detective Watson, Griffin told him that he would tell him everything he wanted to know, and “stuff’ that he did not know, if Detective Watson would permit him to smoke a cigarette. Detective Watson advised Griffin of the building’s “no smoking” policy, but Griffin would not talk to him without the cigarette, Detective Watson, for the purposes of his own notes, then wrote “refused” on the rights form. It was Detective Watson’s testimony that Griffin specifically told him that he was “not refusing it”; rather, Griffin stated he “just want[ed] a cigarette.” The officer returned to his office and related the situation to his sergeant, who advised him to check Griffin out of the jail and allow him to smoke a cigarette outside on the way to the interview room.
At approximately 2:00 p.m., while proceeding under the original waiver-of-rights form, Detective Watson interviewed Griffin, who gave him information about the forgeries as well as other crimes he had committed. During this interrogation, Detective Watson scratched out the “refused” notation on the rights form and signed his name beside the scratch-out. When Detective Watson asked Griffin if there was anything else he wanted to tell him, Griffin replied, “I don’t know how to tell you this, but I killed a man in West Memphis, Arkansas.” Griffin offered to draw a map to the victim’s house, and while doing so, Detective Watson left the room to get Detective Erin Kellett and to have someone contact West Memphis authorities to confirm Griffin’s story.
Detective Kellett testified that he entered the interview room and witnessed and signed the original rights form, noting that the time was 2:00 p.m. rather than 11:45 a.m. He also witnessed and signed a second rights form before taking both a written and a taped statement from Griffin. In each statement, Griffin confessed to committing the murder.
Detective R.W. Brockwell of the Crittenden County Sher iff’s Office testified that he arrived the next day, June 15, 1993, and interviewed Griffin at the Clarksville Police Department. After Brockwell read Griffin his rights, Griffin signed and initialed a waiver-of-rights form. Griffin then made both taped and written statements, in which he again confessed to the murder. Detective Brockwell, as well as Detectives Watson and Kellett, denied using any threats, force, or coercion to obtain the statements from Griffin.
Willie Smith testified that on June 15, 1993, Griffin’s sister, Mary Garrard, came by his place of business to tell him that Griffin wanted to talk to him. Later that afternoon, Mr. Smith went by Griffin’s mother’s residence, where he talked to Griffin on the telephone. According to Mr. Smith, Griffin confessed to him that he had committed the murder.
Griffin testified at the Denno hearing and denied that he had made any statements to police on June 14. According to Griffin, he told the Tennessee officers that he wanted to talk to someone about a murder that happened in Arkansas, but refused to make a statement until the Arkansas detectives arrived the next day. Griffin stated that on June 15, before his rights were read to him, Detectives Brockwell and Watkins took him outside to the top of the building so that the three could smoke cigarettes. According to Griffin, Detective Brockwell handed him a cigarette, then hit him in the head with a pistol. Griffin testified that Detective Brockwell threatened that if he did not say what he was told to say, he would push him off the side of the roof, then “give his family’s address to the victim’s family to come and kill them.” Griffin stated that he was then “carried” back downstairs where he was forced to give both a written and a taped statement. It was Griffin’s testimony that during his taped statement, Detective Brockwell hit him on at least two occasions, which explained “[a] whole bunch of pauses in the tape.”
Griffin claimed that, after giving statements to the officers, he was carried back down to the drunk tank, where he told either Jailer Anderson or Jailer Monzella, neither of whom was present during his statements to police, that his head was bleeding and that he needed to go to the hospital. According to Griffin, one of the jailers brought him an ice pack. Griffin also denied telling Willie Smith that he had committed the murder; rather, he con tended that he merely told Mr. Smith that officers “had me for a murder case.” Griffin’s counsel proffered this testimony at the hearing. However, when asked by the trial court if the jailers could testify as to the nature and extent of the injuries Griffin had allegedly received, counsel replied that he was “not sure.” After oral arguments, the trial court denied the motion to suppress the five statements, finding that, by a preponderance of the evidence and under the totality of the circumstances, the statements were “voluntarily, knowingly, understandably and intelligently given,” and that Griffin had “voluntarily, knowingly, and intelligently waived his 5th and 6th Amendment Rights.”
In Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), we adopted the rule that, whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, the State has the burden to produce all material witnesses who were connected with the controverted confession or give an adequate explanation of their absence. (Emphasis added.) As we recently recognized in Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995), we have repeated this rule many times. Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989); Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938 (1980); Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Russey v. State, 257 Ark. 570, 519 S.W.2d 751 (1975); Northern v. State, 257 Ark. 549, 518 S.W.2d 482 (1975); Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974).
In Bushong v. State, supra, we held that a constable who was present at the scene of Bushong’s arrest was not a material witness. In so holding, we stated as follows:
If we decide that he was a material witness, then we might as well say all witnesses who could possibly have witnessed anything must be called by the State. That is an unreasonable burden to place upon the State. There must be some connection between the alleged acts of coercion or an opportunity to observe the alleged coercion. This record gives no indication that [the constable] would have been a material witness in any regard except he happened to be present on the scene and might have observed something.
267 Ark. at 121. (Emphasis added.) We cannot conclude that the State was required to produce the jailers. There was no connection between them and the alleged acts of coercion, and they were not in a position to observe the alleged coercion.
While the record indicates that Griffin was given notice of his April 11, 1994, trial date on March 17, 1994, it is significant that Griffin did not enlist the aid of the prosecutor to obtain the presence of Anderson and Monzella until Friday, April 8, 1994, at approximately 4:00 p.m. Upon receiving the faxed subpoenas, the jailers’ supervisor related that he could not release them from work on such short notice. While the State never subpoenaed the jailers, the prosecutor explained at the Denno hearing that he “ha[d] no idea who the officers are, or anything.”
In deciding the issue of voluntariness in the absence of testimony from Anderson and Monzella, who were not present during the alleged coercive acts, the trial court was permitted to consider both Griffin’s eleventh-hour attempt to subpoena these witnesses, and counsel for Griffin’s concession at the hearing that he was “not sure” whether either officer could testify as to the nature and extent of injuries Griffin had allegedly received. Moreover, in making his decision, the trial judge, who was in the best position to assess the credibility of the witnesses, Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994), apparently concluded that the State’s witnesses were more credible than Griffin’s. In short, in examining the record before us, we conclude that the trial court did not abuse its discretion in failing to require the State to produce the two jailers, nor did it err in refusing to suppress Griffin’s statements.
Griffin also asserts that he was only read his Miranda rights in relation to the forgery charges against him in Tennessee, and was not Mirandized with respect to the homicide. We have previously addressed this issue in Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988), as follows:
It is not a violation of the rather rigid Miranda rules for the police to give one valid warning and then question the suspect about two or more different crimes. Hall v. State, 242 Ark. 201, 412 S.W.2d 603 (1967). Further, and distinguished from the argued police violation of the Miranda rules, a suspect’s awareness of all of the different charges in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege. Colorado v. Spring, 479 U.S. 564 (1987).
In contrast, the case cited by Griffin on this point, Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985), involved the issue of whether the statement Shelton gave an officer in his police car was the result of custodial interrogation, and, thus, required Miranda warnings. Here, the Tennessee officers gave Griffin a valid Miranda warning prior to questioning him about the forgery charges. The subject of the homicide arose after Detective Watson asked Griffin if there was anything else Griffin wanted to tell him. Under these circumstances, there was no violation.
II. Motion for continuance
For his second allegation of error, Griffin maintains that the trial court erred in denying his motion for continuance. At trial, Griffin requested a continuance in order to obtain the presence of three potential witnesses who had been subpoenaed for trial, but who had not honored the subpoenas. The absence of two of the three witnesses, Officers Anderson and Monzella of the Clarksville, Tennessee Police Department, was addressed in the first point above. The third witness, Jerry Parsons, was “the blond-haired guy” Griffin claimed actually murdered Mr. Wynne.
A motion for a continuance is addressed to the sound discretion of the trial court, and the court’s decision will not be reversed absent an abuse of discretion. Hill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995). Ark. Code Ann. § 16-63-402(a)(1987) requires that, once the party opposing the motion for continuance has objected to the motion, the moving party must submit an affidavit to justify a continuance:
A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it.
See also Id. at 357. The State objected to the continuance at trial, and Griffin filed no affidavits in support of his motion. A trial court does not abuse its discretion in denying a request for continuance when the motion is not in substantial compliance with Ark. Code Ann. § 16-63-402(a). Id. Accordingly, we find no error on this point.
III. Overlap of offenses
Griffin next argues that the overlapping between the capital murder statute and the first-degree murder statute allows the jury to make an unconstitutionally capricious choice of crime and punishment, and that the phrase “circumstances manifesting extreme indifference to the value of human life” is so vague that it violates his right to equal protection of the law. The State is correct in its assertion that Griffin made no objection to either the capital felony murder or the first-degree murder instruction, and, thus, his argument is not preserved for our review. Nichols v. State, 306 Ark. 417, 422, 815 S.W.2d 382, 385 (1991).
IV. Instruction on second-degree murder
Griffin’s fourth point on appeal is that the trial court erred in refusing his request to instruct the jury with the definition of second-degree murder. See AMI Crim. 2d 1003. While the record reflects that Griffin did in fact request that the second-degree murder instruction be given to the jury, it is true, as the State argues, that a copy of this instruction does not appear in the record. It is the appellant’s duty to bring up a record sufficient to show that the trial court committed error. Claiborne v. State, 319 Ark. 537, 892 S.W.2d 511 (1995); Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). Because Griffin did not proffer the instruction on second-degree murder into the record, his argument that the trial court erred in refusing to so instruct the jury is not preserved for our review.
V. Motion for mistrial — prior bad acts
Griffin’s next allegation of error is that the trial court should have granted his motion for mistrial after a State’s witness, Crittenden County Officer R.W. Brockwell, read into evidence Griffin’s June 15, 1993 handwritten in-custodial statement, which included the following sentence, “I left work with the money and went to Lincoln Homes to buy crack cocaine, Tuesday, 5/25/93.”
A mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995). We will not reverse a trial court’s decision to deny a motion for mistrial except for an abuse of discretion or manifest prejudice to the complaining party. Brown v. State, 320 Ark. 201, 895 S.W.2d 909 (1995).
Prior to opening statements, the trial court ruled, at Griffin’s request, that the State’s witnesses testifying about the circumstances of Griffin’s in-custodial statements were not to mention the specific criminal charges pending against Griffin in Tennessee. However, Griffin made no specific objection to the allusion to crack cocaine purchase in his in-custodial statement until it was read at trial. The trial court denied the motion for mistrial, ruling that it was untimely. However, the court offered both to caution the jury to disregard the reference to cocaine use, and to allow counsel to mark out the reference in the statement. While Griffin accepted the trial court’s offer, no such cautionary instruction was given to the jury. It was Griffin’s duty, as the moving party, to see that the trial court gave the cautionary instruction. Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989).
It is also significant that Griffin suffered no prejudice by the reference to his crack cocaine purchase. During Griffin’s case-in-chief, he testified on direct examination that, on the day he was arrested, he had visited a “dope house” and had smoked crack cocaine. We have said many times that evidence that is merely cumulative of other evidence admitted without objection is not prejudicial. Landrum v. State, 320 Ark. 81, 894 S.W.2d 933 (1995). Under these circumstances, we conclude that the trial court did not abuse its discretion in denying the motion for mistrial.
VI. Motion for mistrial — juror contact with victim’s family
Griffin further alleges that the trial court erred in denying his motion for mistrial on the basis of improper contact during the trial between jurors and members of the victim’s family. During a recess at trial, juror Clayton and alternate juror Marconi were seen in a lounge where members of Mr. Wynne’s family were drinking coffee and talking. Griffin made a motion for mistrial claiming improper contact. The trial court denied the motion, and admonished the jury not to have contact with any of the parties, witnesses, or attorneys. The trial court asked the jurors if any of them had had a conversation with members of the victim’s family or any other witnesses and none responded in the affirmative. At the close of all the evidence, the trial court held a hearing relating to Griffin’s motion. Alternate juror Marconi testified that she and juror Clayton had discussed “speech therapy” in the attorney’s lounge while getting coffee. She denied having had any conversation with members of Mr. Wynne’s family, stating that she did not notice whether they were in the same room. Bailiff Boswell also testified at the hearing, stating that the jurors spoke with one another in the lounge and did not talk to any witnesses.
In Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977), the appellant moved for a mistrial after it was learned that the father of a murdered policeman had talked to one or more members of the jury during a recess. The trial court called the father to the witness stand, and was satisfied by his answers that nothing had been said which would prejudice a juror. We found no abuse of discretion in the trial court’s decision to deny the motion for mistrial, holding that such a meeting alone was not prejudicial error. As we stated in Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993), it is Griffin’s burden to demonstrate that a reasonable possibility of prejudice resulted from the contact. On the facts before us, it cannot be said that the trial court erred in denying Griffin’s motion for mistrial.
VII. Instruction — expert witness
For his final point of error, Griffin claims that the trial court erred in failing to instruct the jury concerning the weight to be given to the testimony of the State’s expert witness, State Medical Examiner Dr. William Sturner, who performed the autopsy on the victim. Specifically, Griffin maintains that the trial court should have instructed the jury that it was not bound to accept Dr. Stumer’s testimony as conclusive. However, Griffin neither requested a special instruction on this point, nor did he proffer any such instruction to the trial court; therefore, the State is correct in its assertion that we cannot address the merits of his argument on appeal. Brown v. State, supra.
VIII. Compliance with Ark. Sup. Ct. R. 4-3(h)
Because Griffin received a sentence of life imprisonment without the possibility of parole, we must review all prejudicial erroneous rulings adverse to him pursuant to Ark. Sup. Ct. R. 4-3(h). While neither Griffin nor the State briefed Griffin’s objection to the admission of hearsay testimony at trial, we believe that it is necessary to discuss this issue.
During Griffin’s case, his counsel called Investigator Mike Morgan of the Crittenden County Public Defender’s Office as a witness, and inquired as to whether he had obtained any information regarding a “second suspect” in the case. Morgan replied that he had attempted to locate a “blond-headed guy” identified as Jerry Parsons, but had learned from a neighbor to Parsons’s mother in Memphis, Tennessee, that Parsons, a transient, currently lived in California. According to Morgan, he turned this information over to the Crittenden County Sheriff’s Department, which located Parsons in Gulfport, Mississippi, approximately two weeks prior to trial. When asked by Griffin if anyone had talked to Parsons, Morgan responded that it was his understanding that the sheriff’s department had talked to Parsons on the telephone, and that Parsons had denied having any involvement in the homicide.
On rebuttal, the State called Investigator Brockwell to the stand, and the following exchange took place:
PROSECUTOR: All right and what did Jerry Parsons tell you?
COUNSEL FOR GRIFFIN: Your Honor, I object. That’s nothing but rank hearsay. If Jerry Parsons wanted to testify, or they wanted to get him to testify, they should have had him here. That’s hearsay.
PROSECUTOR: Your Honor, I agree it’s hearsay, but they wanted to know. And I put the officer on the stand.
THE COURT: I’m going to overrule the objection.
PROSECUTOR: What did he tell you?
WITNESS: He said that in May of 1993 he was hitchhiking through Arkansas; he was picked up by a white male close to Memphis, is what he said; that he gave the man five ($5) dollars for gas, uh, they stopped at a truck stop, he said somewhere near West Memphis to sell some tools; that he had this individual drop him off in Memphis at his mother’s residence and that’s all he knew.
The State apparently elicited Brockwell’s testimony in response to Griffin’s inquiry of Morgan as to whether he had obtained any information on a “second suspect.” In a sense, when Morgan testified as to his attempts to locate a “blond-headed guy” identified as Jerry Parsons, Griffin opened the door to this line of questioning. In any event, as the prosecutor conceded, Investigator Brockwell’s testimony admitted here was hearsay. Arkansas Rule of Evidence 801(c) defines hearsay as follows:
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Furthermore, A.R.E. 802 provides that hearsay statements are inadmissible, unless the statements fall under an exception provided by law or the rules of evidence. None of the exceptions to the hearsay rule apply in this instance.
We have recognized that, under the Sixth Amendment Confrontation Clause, the State must usually either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992), citing Idaho v. Wright, 497 U.S. 805 (1990) and Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990). Yet trial error, even involving the Confrontation Clause, is subject to harmless error analysis. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), citing Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994) (citing Delaware v. Van Arsdale, 475 U.S.673 (1986) and Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)). Griffin did not raise any constitutional objection to the admission of the hearsay statement, either below or on appeal, and has thus waived any constitutional argument. Gatlin v. State, supra; citing Killcrease v. State, supra. Therefore, we will not analyze the admission of the hearsay testimony under the constitutional standard of harmless beyond a reasonable doubt. Gatlin v. State, supra, citing Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).
It was Griffin’s burden to produce a record that demonstrates he was prejudiced by the admission of the hearsay testimony, as we do not reverse for harmless error. Gatlin v. State, supra, citing Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985), and Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994). As the jury was permitted to consider five statements in which Griffin admitted to committing the murder, we cannot conclude that Griffin has overcome his burden of showing that he was prejudiced by the admission of the hearsay testimony.
Finding no erroneous rulings adverse to Griffin that cause reversal, we affirm the decision of the trial court.
Glaze and Roaf, JJ., concur.
In adopting the material witness rule in Smith, we were persuaded by the Illinois Supreme Court’s position in People v. Armstrong, 282 N.E.2d 712 (1972). One distinguished member of this court questioned the propriety of the Smith rule soon after its adoption. Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974)(Smith, J., dissenting). Subsequently, in Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938 (1980), we noted the Illinois Supreme Court’s extensive experience with this rule, and discussed six Illinois cases. In People v. R.D., 155 Ill.2d 122, 613 N.E.2d 706 (1993), the Illinois Supreme Court, noting that only a minority of states including Arkansas still followed it, repudiated the material witness rule entirely. In this case, the State has not asked us to repudiate the Smith rule, and we are not inclined to do so at this time. | [
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Per Curiam.
Johnnie Huckabee, by his attorney, has filed
a motion for a rule on the clerk. His attorney, Jon A. Williams, admits by motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is, therefore, granted.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Andree Layton Roaf, Justice.
This case involves an election contest. Appellant Martin Gipson defeated appellee Ray C. Heck Sr. for the position of Alderman of Ward One of North Little Rock. The appellee contested the election, filing suit against Gipson, the Pulaski County Election Commission and its members, and the Pulaski County Treasurer. The trial court ordered the Election Commission to hold a new election. On appeal, appellant Martin Gipson asserts the trial court erred in (1) failing to dismiss appellee’s petition requesting a new election, (2) denying his motion for directed verdict, and (3) ordering a new election. However, because Mr. Gipson’s notice of appeal is not in the record filed with this court, we do not consider his arguments. Appellant, the Pulaski County Election Commission, contends the trial court erred in ordering a new election. We agree that the trial court was without authority to order a new election; we reverse the order and dismiss the appellee’s action.
The election at issue was held on November 8, 1994; appellant Gipson defeated appellee Heck by 43 votes. On November 17, 1994, Heck filed a complaint in the Circuit Court of Pulaski County alleging that at precinct 518H at least 75 of the first 381 persons who cast ballots in the Ward One alderman’s race were residents of Ward Four. He further alleged the results for precinct 518H were 377 votes for him and 286 votes for Gipson, that he had contacted some of the persons who cast the illegal votes and that they indicated they cast their votes for Gipson. He asserted if all illegally cast ballots were removed, he would receive the majority of legally cast votes for Ward One, and should therefore be certified as the duly elected Alderman for Ward One.
The Pulaski County Election Commission and the County Treasurer answered, admitting that 65 voters who resided in Ward Four received ballots for the Ward One election. The Election Commission further asserted the complaint should be dismissed pursuant to ARCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted because, based upon the assumption that the 65 invalidated voters voted in the same proportion as the other ballots cast, the plaintiff would still lose the election.
At a hearing held on December 29, 1994, the trial court entered an agreed order which stipulated that volunteers at precinct 518H mistakenly gave Ward One ballots to 65 Ward Four voters and directed the Pulaski County Election Commission to find the ballot stubs, set aside the 65 illegal ballots, and recount the remaining votes cast in precinct 518H. The order further provided that “The parties agree that if the Election Commission is unable to match a ballot with its stub, such ballot will not be set aside, but will be counted, and the inability to match such ballot to the stub will in no way invalidate this Consent Order and the agreement set forth herein by the parties to resolve this dispute.”
When the Election Commission could not locate the precinct 518H ballots, Heck filed a pleading entitled “Petition” in which he contended that he was entitled to another election. The trial court ultimately ordered the Election Commission to open all the ballot boxes from the November 8, 1991, general election to search for the missing Precinct 518H ballots. The Election Commission subsequently found the ballot stubs, but the ballots from precinct 518H were not located.
Finally, on February 27, 1995, the trial court entered an order directing the Election Commission to hold a new election in precinct 518H, in the Ward One alderman’s race between Heck and Gipson. In his findings of fact, the trial judge stated that a “search of all the boxes on February 13 and 14, 1995, produced none of the missing ballots from Precinct 518H.” The trial court further stated “the integrity of the ballot box in Precinct 518H has been destroyed.”
a. Gipson’s Notice of Appeal
The Election Commission timely filed a notice of appeal on March 1, 1995, and it is included in the record. A notice of appeal is attached as Exhibit 3 to Gipson’s brief on appeal, indicating his notice was also timely filed in circuit court, but this notice of appeal is not in the record filed with this court. Gipson’s notice of appeal is also on file in the Supreme Court Clerk’s office with a letter notifying the Clerk of Gipson’s appearance. A footnote in Gipson’s brief concedes the record failed to contain the notice of appeal, but Gipson asserts “a request has been made to the Circuit Clerk to supplement the transcript by including” the notice.
In any event, Gipson’s notice of appeal is not in the record, and there is no motion by Gipson to supplement the record with the notice of appeal. See Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). Although the appellee does not raise the issue, we have stated that while some irregularities in the form of a timely notice of appeal do not deprive the appellate court of jurisdiction, the failure to give the notice in a timely manner is fatal to an appeal. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). Consequently, we are without jurisdiction to address Gipson’s points on appeal because the record does not indicate he filed a timely notice of appeal. Id. Further, although the Election Commission’s notice is timely and two or more parties may file a joint or consolidated appeal, the notice of appeal must “specify the party or parties taking the appeal” and only the Election Commission is named as appellant in its notice. Ark. R. App. P. 3(e); Ozark Acoustical Contractors v. National Bank of Commerce, 301 Ark. 472, 786 S.W.2d 813 (1990).
b. Appeal of Election Commission
The Election Commission contends the trial court erred in ordering a new election because of the total failure of proof. At trial, appellant Gipson moved for a directed verdict based upon a complete failure of proof, and the Election Commission joined in this motion, asserting Heck presented no evidence of how the challenged 65 votes were cast or if they were even cast in the Ward One race.
The trial court’s consent order dated December 29, 1994, provides that at precinct 518H, Ward One ballots were given to 65 Ward Four voters. At trial, Heck testified the Election Commission could not locate the ballots from precinct 518H. However, he presented no testimony concerning whether any of the Ward Four voters actually voted in the Ward One alderman election and, if so, for whom they voted.
In his complaint, Heck asserted that he “contacted some of the persons who cast illegal votes . . . and they have indicated that they cast their vote for Defendant Gipson.” Heck further alleged that following the removal of all illegally cast ballots, he would “receive the majority of legally cast votes for Alderman, Ward 1, City of North Little Rock and should therefore be certified as the duly elected Alderman for Ward 1, City of North Little Rock.”
We have stated that “a pleading which merely alleges the conclusion that the contestant received more legal votes than the contestee without alleging facts which would disclose that the result of the election was actually different from that shown by the returns does not state a cause of action.” Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980). In Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967), the Court wrote:
It places no burden on contestants to require them to state the names of the voters who allegedly voted “wet” and illegally and to show that if alleged illegal votes were purged it would change the election results. Before one can in good faith contest an election, he must have knowledge of the persons who voted illegally, some knowledge of how the persons allegedly voted, and he must be able to show that if the votes were purged it would make a difference in the outcome of the election. Otherwise, an election contest would become a fishing expedition. An election by the people should not be so lightly impugned by those who only hope to find enough information to change the result of an election.
See also Simonetti v. Brick, 266 Ark. 551, 587 S.W.2d 16 (1979).
The appellee offered no evidence at trial of how the illegal votes were cast, and his complaint simply alleged that “some” of the people he contacted indicated they cast their vote for Gipson. In an election contest, official election returns are considered prima facie correct and the party contesting the election bears the burden of offering proof to set aside the results of the election. Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 982 (1995). Further, there is a presumption that all votes cast at the election were lawful until their authenticity is impeached by affirmative evidence. Id. Here, Heck simply failed to present proof that any of the 65 voters in question actually voted in the Ward One race, or that they voted for Gipson. See Forrest v. Baker, 287 Ark. 239, 698 S.W.2d 497 (1985).
The Election Commission also argues Arkansas election law does not provide for a new election as a remedy. Recently, we examined a comparable case. In Phillips v. Earngey, supra, Louise Berry died prior to the election, but she defeated Bill Earngey by one vote for the position of alderman for the City of Eureka Springs. Earngey filed a complaint alleging that more than 30 ineligible voters voted in the alderman’s election and that “all or a majority” of the illegal voters voted for Louise Berry. After granting a “joint motion” to set aside the election results, the trial court ordered the Carroll County Election Commission to conduct a special election for alderman. We held the trial court erred and stated:
The Board of Election Commissioners has no power to call or hold a new election and for the court to direct it to do so would be to confer a power that does not exist. See McFarlin v. Kelly, supra; McCoy v. Story, 243 Ark. 1, 417 S.W.2d 954; Langston v. Johnson, 255 Ark. 933, 504 S.W. 2d 349. Furthermore, it is the function of the legislature, not the courts, to create rights of action, or provide relief where means of redress have not been designated. McFarlin v. Kelly, supra.
(quoting Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980).)
The circuit court in the instant case erred in directing the Pulaski County Election Commission to hold an election in precinct 518H, in the Ward One alderman’s race between Heck and Gipson. The only issue involved in an election contest between two candidates qualified to hold the office is which one received more valid votes. Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985). In essence, the circuit court is required to simply examine the election results, and, after excluding any challenged votes which are illegal, determine which candidate received more valid votes. See Forrest v. Baker, 287 Ark. 239, 698 S.W.2d 497 (1985); Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985); Simonetti v. Brick, 266 Ark. 551, 587 S.W.2d 16 (1979). Once again, Heck failed to present proof that any of the 65 voters in question voted for Gipson; therefore, Heck’s action should have been dismissed.
Reversed and dismissed.
Special Justice Judith DeSimone joins in this opinion.
Corbin, J., not participating. | [
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Andree Layton Roaf, Justice.
This is a products liability case. Appellant Brenda Carr was injured when the automobile she was driving was struck from the rear while she was stopped at a traffic light. She filed suit against appellee General Motors Corporation (GMC) alleging that the front seat of her 1984 Buick Regal was defective in design and negligently constructed. She appeals from a jury verdict in favor of appellee and from the denial of her motion for a new trial. We affirm.
During the trial, appellant presented expert testimony that her injuries, including a broken neck, occurred when her seat yielded backward on impact, and she was propelled into the rear of the car, striking her head on the back of the rear seat. The appellee countered this evidence with expert testimony that the seat in fact performed as intended by giving or yielding in the accident. GMC’s expert further stated that the appellant’s head could have struck the roof of the car with even greater force and with the risk to appellant of paralysis, if the seat been designed to remain rigid in a collision.
On appeal, appellant asserts the trial court erred in making several evidentiary rulings. She raises six points on appeal; however, in her argument, these points are consolidated into three contentions: that the trial court erred in 1) allowing appellee’s expert to display to the jury certain diagrams not provided to appellant during discovery, 2) not allowing appellant to introduce into evidence or display to the jury certain documents, films and tests, or to cross-examine one of appellee’s experts using one of the excluded films and 3) not allowing appellant to introduce into evidence reports obtained from GMC of prior substantially similar seatback failures, or to examine appellant’s expert concerning his interview of a person who made one such report. We do not reach the merits of any of appellant’s arguments because she failed to abstract the appellee’s diagrams complained of in her first point, and failed to proffer during trial any of the documents, films and testimony she contends were erroneously excluded by the trial court.
Appellant first asserts it was an abuse of discretion for the trial court to allow the appellee to show to the jury “professionally prepared diagrams on enlarged poster board” which were provided to appellant a year after the discovery cut-off, and only a few days prior to trial. She contends that the resulting prejudice to her was severe. The diagrams were used during the testimony of appellee’s expert for illustration and were not introduced into evidence; they are not included in the abstract and we are precluded from reviewing the issue on appeal. J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995); Pennington v. City of Sherwood, 304 Ark. 362, 802 S.W.2d 456 (1991); see also Ark. Sup. Ct. R. 4-2(a)(6). As appellant correctly asserts, we will address the merits of such an argument if there is sufficient information in the abstract and briefs of the parties from which the contents of an unabstracted exhibit can be discerned. The appellant submits that “the exhibits were diagrams, blown-up to poster size, of occupant kinematics showing a belted and unbelted passenger.” However, there is simply not sufficient information here to determine whether prejudice occurred from the use of the diagrammed illustrations, see Roe v. State, 310 Ark. 490, 837 S.W. 2d 474 (1992), nor can we determine if other exhibits depicting the occupant of a vehicle belted and unbelted, which were introduced into evidence, were sufficiently similar to render any error harmless. See Williams v. Southwestern Bell Tel. Co., 319 Ark. 626, 893 S.W.2d 770 (1995).
Appellant next argues that the exclusion of certain “materials, exhibits and films” obtained shortly before trial from a previous lawsuit of a similar products liability claim against GMC was reversible error because she should have been allowed to use the materials for illustrative purposes or to introduce them into evidence. These materials were not proffered to the trial court and they are not in the abstract or record of this case. The appellant also sought to cross-examine one of the appellee’s experts about a videotape of a crash test from a 60 Minutes program. The trial court allowed appellant to ask the expert about the crash test but did not permit the 60 Minutes video to be shown to the expert. This videotape also was not proffered to the trial court.
We have said many times that the failure to proffer evidence so that we can see if prejudice results from its exclusion precludes review of the evidence on appeal. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); see also Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995); A.R.E. Rule 103(a)(2). Although appellant contends that it is clear from the proceedings that the 60 Minutes videotape contained crash tests showing that a dummy can ramp over a seat in a collision, the bare assertion that the video contained “crash tests” does not provide sufficient information to allow review of the trial court’s ruling. Further, appellant introduced into evidence two exhibits depicting crash tests involving a dummy and we have no means of determining whether the excluded crash tests were distinguishable from the evidence admitted. See Williams v. Southwestern Bell Tel. Co., supra.
The appellant finally asserts the trial court erred in excluding evidence of prior incidents of seatback failures reported to GMC and in refusing to allow her expert to testify concerning his interview of a person who had reported one such incident. The appellant sought to use the reports to establish that GMC had notice that its non-rigid seatback design was defective. The appellant did introduce through her expert a memo obtained from GMC which noted that the seatback was designed to yield under rear impact and such a condition had a potential for severe injury. The trial court further concluded that the reports could be admitted if a proper foundation was laid, and appellant’s expert testified that in his opinion GMC was aware of previous problems with the non-rigid seatback design because “there were a lot of reports of failures and sorts of things on seatbacks and what have you that were produced by GMC during the discovery period.”
The expert further testified from one of the reports that “there was a low speed rearend collision and the passenger seat broke ... name and address, Mary E. Pellegrine ... seating position, passenger side. Nature of injury, neck and back.” However, the trial court did not allow the expert to testify about his interview of Ms. Pellegrine after the appellee objected that her conversation was hearsay. Appellant then stated, “Your Honor, we will withdraw any further testimony regarding that report.” Appellant did not pursue the testimony regarding the report, and did not proffer the reports to the trial court. The expert’s testimony concerning his interview with Ms. Pellegrine also was not proffered. Again, the appellant’s failure to proffer the excluded evidence, including the substance of the witness’ testimony, precludes our reaching the merits of her argument. See Duncan v. State, supra; A.R.E. Rule 103(a)(2).
Appellant argues on appeal that an expert is entitled to rely on hearsay and her expert should therefore have been allowed to testify concerning his conversation with Ms. Pellegrine because it was information he obtained to form the basis of his opinion. This argument was not presented to the trial court and thus need not be considered on appeal. Jarboe v. Shelter Ins. Co., 317 Ark. 395, 877 S.W.2d 930 (1994).
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Per Curiam.
Some of the appellants in this case, namely, John Oldner, John Oldner Consulting Services, Inc., d/b/a/ John Oldner Enterprises, Joel Tumblson, Sr., and Soundra Tumblson, Joel Tumblson, Jr., T.S.P. Inc., Billy Armstrong, and Service Brokerage, have filed motions to settle the record. In a per curiam opinion issued this date, we have dismissed the appeals of Mr. Armstrong and Service Brokerage. The motions of the other appellants are granted.
The motions explain that certain exhibits, which formed the basis of the testimony of several witnesses, were lost in the transfer from the temporary court quarters in the KARK building to the Pulaski County Courthouse. The motions and responses also indicate that the record can be settled through the inclusion of photocopies of each of the exhibits. The parties request that a writ of certiorari, returnable within 30 days, to the lower court to settle the record.
The writ is granted and the briefing time for each of these parties is stayed until 15 days after the writ is returned. | [
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Andree Layton Roaf, Justice.
This is the second appeal of this case involving a claim of negligence against an insurance agent; the first appeal was dismissed without prejudice pursuant to Ark. R. Civ. P. 54(b). Flemens v. Harris, 319 Ark. 659, 893 S.W.2d 783 (1995). Appellants Roger and Nancy Flemens appeal from an order granting summary judgment in favor of appellee Glen D. Harris on the basis that the Flemenses’ action was barred by the running of the statute of limitations. We affirm.
Facts
Appellee Glen Harris passed the state examination for insurance agents in June 1988 and opened a Shelter Life Insurance Company office in Dierks, Arkansas. Roger Flemens, a self-employed grocery store and gas station operator, submitted a disability insurance application through appellee’s office on August 8, 1988, and was issued a policy by Shelter Life Insurance Company (Shelter). Roger Flemens’ wife, appellant Nancy Flemens, was the intended third party beneficiary of the disability insurance policy.
On December 15, 1988, Roger Flemens sustained injuries as a result of a motor vehicle accident. Mr. Flemens made a claim for disability insurance benefits from Shelter and received one payment for the period December 16, 1988, through Decern ber 29, 1988. The payment was made on February 7, 1989. On March 21, 1989, Flemens was notified by Shelter that there was “a problem with this matter.” Shelter Life Insurance stated that there had been a misrepresentation on the application regarding Flemens’ income — the income shown on his tax returns was significantly below that which he claimed on the application form. Subsequently, Roger Flemens’ disability benefits were terminated.
Roger and Nancy Flemens filed a complaint against Shelter and Glen Harris on December 13, 1991. The complaint alleged Harris was negligent in handling Roger Flemens’ application for disability insurance. The complaint further alleged that the negligence on the part of Harris was imputable to Shelter under the law of agency. In addition, the complaint alleged that Flemens substantially complied with the terms of the policy and, despite demand, Shelter failed to pay benefits due under the policy.
Appellee Harris moved for summary judgment asserting that the three-year statute of limitations barred the Flemenses’ action. The trial court found that the applicable statute of limitations for negligence of an insurance agent is three years and begins to run at the time the negligent act occurs, not when it is discovered. The trial court further concluded that the negligence, if any, committed by Harris occurred in August 1988 and the action against Harris was filed in December 1991. Accordingly, the trial court granted separate defendant Glen Harris’ motion for summary judgment. The record reflects that Shelter entered into a settlement agreement with the Flemenses and the action against Shelter was dismissed with prejudice.
Statute of limitations
On appeal, both parties agree that the applicable statute of limitations on actions for the negligence of an insurance agent is three years. The appellants, however, submit that the trial court erred in determining when the applicable three-year period began to run. The appellants assert that the statute of limitations did not begin to run until receipt of the March 21, 1989, letter from Shelter which terminated benefits because this letter represented their first loss, i.e. damage, which was necessary for their tort action to mature.
The appellants rely upon Midwest Mutual Ins. Co. v. Ark. Nat’l Co., 260 Ark. 352, 538 S.W.2d 574 (1976), where this Court concluded the running of the statute of limitations did not commence until an insured first learned it had no insurance coverage. The Arkansas National Company, an independent insurance agency, obtained an assigned risk liability insurance policy for Red Top Cab Company through Farm Bureau Mutual Insurance Company. Arkansas National and Red Top had a standing agreement to delete from coverage taxicabs undergoing repair and to reinstate the coverage upon request. Pursuant to that agreement, on August 11, 1970, Red Top requested one of Arkansas National’s agents to reinstate a vehicle under the coverage; however, the agent neglected to reinstate the vehicle.
The vehicle was involved in a collision nine days later, and on May 24, 1971, a suit was instituted against Red Top for injuries resulting from the collision. At that time, Red Top made demand on Farm Bureau to provide it with a defense and to pay any judgment that might be entered; however, Farm Bureau refused. After judgment was entered against it on September 11, 1973, Red Top assigned to Midwest Mutual Insurance Company its “chose in action” against Arkansas National for failure to reinstate insurance coverage, and, on March 29, 1974, Midwest filed suit against Arkansas National. Arkansas National answered and asserted the suit was barred by the three-year statute of limitations.
This Court concluded that Red Top’s cause of action accrued on or after May 24, 1971, when it was required to assume the cost of its own defense due to the negligence of Arkansas National. We concluded Arkansas National’s negligence in failing to reinstate the insurance coverage did not become tortious as to Red Top until at least some element of damage accrued to Red Top because of the negligence. However, the summary judgment in favor of Arkansas National was affirmed because this Court held that Red Top’s claim was not assignable.
In accordance with Midwest Mutual, the appellants submit that the statute of limitations in their case did not begin to run until they received the letter dated March 21, 1989, informing them benefits were terminated. The appellants assert that the statute of limitations begins to run when there is a complete and present cause of action. See Courtney v. First Nat’l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989); Corning Bank v. Rice, Adm’r, 278 Ark. 295, 645 S.W.2d 675 (1983).
In response, the appellee cites a legal malpractice case, Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991), where we stated:
Since 1877, it has been our rule that the statute of limitations applicable to a malpractice action begins to run, in the absence of concealment of the wrong, when the negligence occurs, and not when it is discovered.
We held that the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. Id.; see also Wright v. Compton, Prewett, Thomas & Hickey, 315 Ark. 213, 866 S.W.2d 387 (1993). Accordingly, we concluded that the statute of limitations began to run at the time Alexander, an attorney, represented Chapman in the sale of a business. Although the Chapman case involved legal malpractice, this Court commented that under our traditional rule:
an abstractor, accountant, architect, attorney, escrow agent, financial advisor, insurance agent, medical doctor, stockbroker, or other such person will not be forced to defend some alleged act of malpractice which occurred many years ago.
(Emphasis supplied.) The appellee also relies upon Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989), where we held that the three-year statute of limitations commenced from the date an accountant provided erroneous tax advice even though the assessment of tax deficiency occurred more than three years later. This Court specifically rejected the appellant’s contention that, until they were assessed a tax deficiency, they had not sustained an injury.
The appellants’ attempt to rely upon Midwest Mutual is understandable. However, the ultimate decision in Midwest Mutual was based upon the assignability of the action. Although this Court first concluded that the action was not barred by the statute of limitations, it was not necessary to do so in order to determine that the action could not be assigned. Consequently, although the discussion of the limitation issue in Midwest Mutual is extensive, the conclusion reached regarding this issue amounts to dictum. Of equal concern is the rationale employed by the Court in reaching the conclusion that the statute of limitation did not begin to run until the client of the insurance agency had suffered some actual loss or damage. The opinion does not distinguish the work of insurance agents from others who similarly render advice and services, whether they be considered “professional” or not. Nor is there any real discussion of our traditional rule for malpractice actions, as in Chapman, although one medical malpractice case is discussed.
In fact, two cases discussed and cited in the Midwest Mutual opinion as on point, and clearly relied upon by the court in reaching its conclusion regarding the limitation issue, involved damage to adjoining land resulting from the construction of a culvert, Chicago, R.I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S.W. 127 (1916), and damage to property resulting from construction of a power plant, Brown v. Arkansas Central Power Co., 174 Ark. 177, 294 S.W. 709 (1927). See Midwest Mutual, supra, (quoting Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 834 (1943)). We thus conclude that the issue raised in the instant case is not controlled by Midwest Mutual, and should not be.
The appellee’s reliance upon Chapman, supra, presents a similar problem, because the comment in Chapman that its decision was applicable to insurance agents is also dictum; the running of the statute of limitations for attorney malpractice was the only issue before the court. However, in Chapman, the traditional rule that the statute of limitations applicable to malpractice actions begins to run, absent concealment of the wrong, when the negligence occurs, is thoroughly discussed, and the rationale behind it is clearly appropriate to an insurance agent. Certainly, damages resulting from the negligent acts of insurance agents, like those of accountants and attorneys, will seldom occur at the time the negligent act is committed and often will only surface upon the occurrence of some subsequent event. The injury or damage from a negligently prepared will does not arise until after the testator has died. The negligence of the insurance agent in Midwest Mutual and in the instant case did not result in damages until claims were presented and coverage denied.
The appellants seek to distinguish insurance agents from the other vocations listed in Chapman, by characterizing them as “generally not professional.” Even if that be the case, we are not prepared to suggest, as appellants argue, that because insurance agents are not considered “professional,” and do not render “professional” services, they should therefore be subject to, in effect, a longer statute of limitations than “true” professionals. Perhaps a better argument could be made for the opposite view. Also, the cases relied upon by the appellants in support of this distinction merely hold that an insurance agent does not have a duty to advise an insured with respect to different coverages. See Scott-Huff Ins. Agency v. Sandusky, 318 Ark. 613, 887 S.W.2d 516 (1994); Stokes v. Harrell, 289 Ark. 179, 711 S.W.2d 755 (1986). Insurance agents are not characterized as professional or non-professional, nor are their services compared with or distinguished from those of any other professions in reaching the holdings in Scott-Huff and Stokes. We are not persuaded that these decisions have any utility in the analysis of the limitations issue before us.
We hold that the statute of limitations for an insurance agent commences at the time the negligent act occurs, in keeping with our traditional rule in professional malpractice cases. However, in doing so, we recognize the harshness of this rule to the clients of not only insurance agents, but also of attorneys, accountants, and others who may avail themselves of this rule in defending against malpractice actions. In the instant case, the appellant participated in the preparation of his application for insurance and. knew that his income had been inaccurately stated. He further had two and one half years after suffering damage from the appellee’s negligence to bring legal action against him. The facts of Ford’s Inc., supra present a more dramatic example of how dire the consequences of our traditional rule can be to injured persons; there, the damages did not result until after the statute of limitations had run.
In Chapman, we discussed the “current trend” cases from other jurisdictions, which have adopted several approaches more favorable to the injured party — the “discovery rule,” the “date of injury rule,” and the “termination of employment rule.” We suggested then that any change to our long standing rule should come from the General Assembly, and we do so once more.
Retroactive application
The appellants submit that if this Court holds the Chapman case and its reference to insurance agents to be the controlling precedent, a retroactive application of new law will result. The Chapman opinion was issued on October 28, 1991, and appellants assert it is illogical and unfair for its application to result in the running of the three year limitation period in August, 1991, two months before Chapman was decided.
We have long held that our decisions are applied retrospectively — a decision of the court, when overruled, stands as though it had never been. See Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). Appellants, however, mistakenly rely upon the decision in Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986), as a deviation from this practice. In Wiles, we declined to permit retroactive application of a decision allowing for division of military retirement pay as marital property to a divorce and property settlement finalized nearly four years earlier. We determined that the previous holdings which did not allow such division were justifiably relied upon, and that the doctrine of res judicata would mandate against the reopening of cases already decided, a significant consideration that is not present in the instant case. Furthermore, as we said in Chapman, our limitation rules regarding malpractice actions have been applicable since 1877. See White v. Reagan, 32 Ark. 281 (1877). It is the traditional rule that we today hold to be controlling. The case of Ford’s Inc. v. Russell Brown & Co., supra, was decided in 1989 upon the same rule as Chapman, and it also conflicts with the analysis in Midwest Mutual. Indeed, the dissent in Ford’s Inc. made the same argument the appellants now make in the instant case.
We find there has been no change in the applicable rule and thus no “retroactive” application, because the decision in Midwest Mutual cannot be viewed as a “line of precedents” which has been relied upon. The trial court correctly applied the decisional law of the Court as it existed when it decided appellant’s case. Baker v. Milam, supra.
Affirmed.
Glaze and Corbin, JJ., dissent. | [
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Donald L. Corbin, Justice.
Appellant, Earl Wordlaw, as special administrator of the estate of Alberta Wordlaw, deceased, commenced this action in the Lonoke County Circuit Court against appellee, Pleaze Laster and Oscar Laster, Jr., as executors of the estate of Oscar Laster, for the fair-market value of the alleged use by appellee’s decedent, Oscar Laster, of certain farmland owned by appellant’s decedent, Alberta Wordlaw. Appellant’s decedent died during the pendency of this action in the trial court. Appellee’s decedent died during the pendency of this appeal. The trial court filed an order of revivor designating the present parties on April 12, 1995. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(16).
By order filed on December 27, 1994, the trial court dismissed the present action on the basis of the doctrine of res judicata, having found that a trial in the England Municipal Court had involved the same issues and parties. This appeal arises therefrom.
The present action was commenced by complaint filed on March 23, 1994, by Earl Wordlaw, as guardian of the person and estate of Alberta Wordlaw, an incompetent. Appellant alleged that, by recorded partition deed dated November 2, 1936, Ms. Wordlaw acquired title in fee simple to a twelve-acre parcel of real property located in Lonoke County; that Ms. Wordlaw was confined to various Illinois state mental-health facilities for a total of forty-three and one-half years during the period from April 1943 to July 1992 due to mental illness or insanity; that Oscar Laster farmed Ms. Wordlaw’s property and derived income therefrom for the immediately-preceding forty years; and that Mr. Laster had refused to pay for the use of the property for those forty years. Appellant prayed for judgment in an amount necessary to compensate Ms. Wordlaw for Mr. Laster’s use of her property, plus interest, costs, and attorney’s fees, “all of which being in excess of that necessary for Federal Court jurisdiction.”
The municipal-court action was commenced by complaint filed by Earl Wordlaw, individually, and as attorney in fact for “all current owners for whom rental income is overdue, including Alberta Wordlaw,” against Oscar Laster in the England Municipal Court. The municipal-court complaint alleged that a written lease agreement was made by and between “Laster Estate/Oscar Laster — Administrator,” as lessor, and a third party, as lessee, for real property in Lonoke County that included a twelve-acre parcel jointly owned by Earl Wordlaw, his mother (Ms. Wordlaw), and his four siblings ; that, pursuant to the lease agreement, rent was due on April 15, 1993, in the amount of $321.96; and that said rent had been collected by Mr. Laster who refused to make payment to the complainants. The municipal-court complaint also stated: “This action is for current, over-due rent only. It is noted, however, that Oscar Laster has failed to pay rent to the owner for many, many years.” By order filed on August 13, 1993, the municipal court awarded the complainants the sum of $321.96 plus court costs.
Appellant’s sole argument for reversal is that the present circuit-court action raises claims in tort or fraud that are outside the limited subject-matter jurisdiction of the municipal court, and, therefore, the municipal-court judgment does not bar the present action. We affirm the trial court’s judgment.
It is clear from reading the municipal-court complaint and the complaint in the case at bar that both complaints were brought to recover monies allegedly owed by Mr. Laster to Ms. Wordlaw for the use of her twelve-acre parcel, and that both complaints state one claim or cause of action. Both complaints allege the operative facts of Ms. Wordlaw’s ownership of the twelve-acre parcel, the use of that land by Mr. Laster, Mr. Laster’s receipt of income for that use, and his refusal to pay the income over to Ms. Wordlaw. The municipal-court complaint, in fact, expressly refers to the fact that Mr. Laster had failed to pay rent to Ms. Wordlaw for years. The lease agreement in the municipal-court action simply provided evidence of the sum certain owed for a portion of the property’s use.
Even construing the pleadings liberally so as to do substantial justice, we do not find that the present action raises claims in tort or fraud. ARCP Rule 8(f). Appellant fails to aver circumstances constituting the alleged fraud with particularity as required by ARCP Rule 9(b). Appellant nowhere names the nature of the tort alleged in his circuit-court complaint, but merely states in his brief to this court: “The remedies herein are in tort, whether the tort is called trespass, conversion, embezzlement, conversion, or breach of fiduciary duty.” Appellant did not plead deceit, or any form of fraud, or other tort. Thus, appellant’s argument for reversal is based upon a false premise, namely, that the circuit-court complaint raises claims in tort or fraud, and is therefore without merit. Columbia Mut. Ins. Co. v. Patterson, 320 Ark. 584, 899 S.W.2d 61 (1995).
The instant action and the municipal-court action are based on the same events and subject matter. Appellant’s unpersuasive attempt to characterize the legal basis for the present action as an action in tort or fraud does not alter that result. We have held that, when a subsequent suit is based on the same events and subject matter as that previously litigated and only raises new legal issues and seeks additional remedies, the trial court is correct to hold the subsequent suit is barred by res judicata. American Standard, Inc. v. Miller Eng’g, Inc., 299 Ark. 347, 772 S.W.2d 344 (1989); Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988).
Affirmed.
Roaf, J., concurs.
Attached to the complaint was a deed, dated December 28, 1992, conveying undivided interests in the twelve-acre parcel from Alberta Wordlaw to Alberta Wordlaw, Earl Wordlaw, and four other persons. | [
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Donald L. Corbin, Justice.
Appellant, Elgin Gregory King, appeals the judgment of the Pulaski County Circuit Court convicting him of first-degree murder and sentencing him to forty years imprisonment. For reversal, appellant contends first, that the trial court erred in failing to declare one of the state’s witnesses an accomplice as a matter of law or in failing to instruct the jury on the accomplice question, and second, that there was insufficient evidence of guilt. We find the trial court erred in refusing to instruct the jury on the accomplice question and therefore reverse and remand. We address the trial court’s ruling on accomplice status as a matter of law for the benefit of the trial court as an issue that is likely to arise on retrial.
Appellant and Kenneth Lamont Slocum were charged by felony information with the capital murder of Willie Simpkins. The cases were severed. Appellant was tried by a jury and convicted of the lesser-included offense of first-degree murder.
SUFFICIENCY OF THE EVIDENCE
Preservation of appellant’s right to freedom from double jeopardy requires that we consider a challenge to the sufficiency of the evidence prior to considering alleged trial error. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984) (citing Burks v. United States, 437 U.S. 1 (1978)). Therefore, although raised as the final point of appeal, we consider the sufficiency argument prior to considering the other points relating to alleged trial error. Young, 316 Ark. 225, 871 S.W.2d 373. In determining the sufficiency question, we disregard any alleged trial errors, because to do otherwise would result in avoidance of the sufficiency argument by remanding for retrial on other grounds. Id. (citing Har ris, 284 Ark. 247, 681 S.W.2d 334).
At the close of the state’s case, appellant moved for a directed verdict based on insufficient evidence, arguing specifically that the state had failed to prove premeditation and deliberation, the correct date of death, and that appellant caused the death of the victim. Appellant also moved for direction of a verdict due to lack of corroborating evidence of the testimony of Vernon Scott, the state’s witness who appellant contends is an accomplice. Appellant renewed these arguments at the close of all the evidence. On appeal, appellant asserts simply that there was insufficient evidence of guilt of first-degree murder, arguing that Scott’s testimony resulted in speculation and conjecture and therefore does not constitute substantial evidence. This latter argument is all that we address, as appellant has abandoned on appeal the other arguments raised below. Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993).
We treat the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Lukach, 310 Ark. 119, 835 S.W.2d 852. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Id. On appellate review, it is only necessary for us to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993).
The following evidence, as viewed most favorably to appellee, was presented at trial. The medical examiner testified that the victim suffered ten separate gunshot wounds. The source of the gunshots either came from two shooters, or one shooter who fired from two positions. A possible murder weapon came into police custody, a .380-caliber Lorcin semi-automatic pistol. The Lorcin had previously been reported stolen by a Marvin Baccus, who purchased the gun. A handwriting expert from the Internal Revenue Service testified that the person who signed the name of Marvin Baccus when purchasing the gun was Shelby Baccus. A firearms toolmark examiner from the Arkansas State Crime Laboratory testified that a bullet found in the victim’s body was fired from the .380-caliber Lorcin. The same firearms examiner testified that a .45-caliber bullet recovered from the victim’s head was the same type of bullet as bullets recovered by police from appellant’s grandmother’s house. He explained the bullets were similar in that they were both full-metal jacketed, both weighed 230 grains, and both had an exposed lead base which is characteristic of any number of brands. At the scene where the victim’s body was found, police found a rubber mask. Scott identified appellant as one of the two persons who abducted the victim at gunpoint just minutes before Scott heard gunshots. His identification of appellant was based on his knowing appellant for most of his life, recognizing the clothes he was wearing hours prior to the crime, and recognizing appellant’s voice. Scott remembered appellant wearing a costume mask and brandishing a semiautomatic weapon when the victim was abducted.
We conclude that the foregoing constitutes substantial evidence in support of the jury’s verdict. The trial court ruled that Scott was not an accomplice as a matter of law; therefore, there was no requirement of corroborating evidence to send the case to the jury for deliberation. Accordingly, the trial court did not err in denying the motion for directed verdict.
ACCOMPLICE AS A MATTER OF LAW
Appellant contends the trial court erred in failing to declare Scott an accomplice as a matter of law. The trial court held a hearing on appellant’s motion in limine to have Scott so declared. At the hearing, Scott testified that, approximately thirty minutes to an hour before the murder, he was approached by appellant’s co-defendant, Slocum, who asked appellant if he could “get Willie [Simpkins] out.” Scott stated that he responded affirmatively, and Slocum then promised to “take care of [Scott].” Scott continued that he then lured the victim to a nearby site, the home of Louis Hattison, where he and the victim together consumed forty ounces of beer and crack cocaine worth $40.00. Scott stated that appellant and Slocum later appeared at Hattison’s home, masked and brandishing weapons, and abducted the victim from the house. Scott testified that when he gave his first statement to the police, he denied seeing who entered Hattison’s home and abducted the victim. Scott explained his denial as being protective of himself and his fam ily. The state conceded that Scott made the denial in his first statement. Scott also testified that he received cash payments from the North Little Rock Police Department prior to and after the date appellant and Slocum were charged in this case. Most significantly, however, Scott stated at the pretrial hearing on the motion in limine that he did not know the reason Slocum had asked him to lure the victim to Hattison’s house.
After hearing the foregoing evidence, the trial court stated that it had not heard any evidence that Scott had knowledge of the crime that was going to occur. Accordingly, the trial court refused appellant’s request to declare Scott an accomplice as a matter of law. Appellant renewed this request at a subsequent pretrial hearing; again, the trial court denied the request on the same basis. We find no error in these two rulings.
The defendant bears the burden of proving that a witness is an accomplice. Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996). An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces another person to commit the offense, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense, or, having a legal duty to prevent the offense, fails to make a proper effort to prevent the commission of the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993). One’s status as an accomplice is a mixed question of law and fact. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). One’s presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) (citing Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983)). The facts do not show conclusively that Scott was an accomplice. The trial court was therefore correct in refusing to declare him an accomplice as a matter of law. Cole, 323 Ark. 8, 913 S.W.2d 255; Pilcher, 303 Ark. 335, 796 S.W.2d 845.
FAILURE TO GIVE PROFFERED INSTRUCTIONS ON STATUS AS ACCOMPLICE
Appellant proffered AMI Crim. 2d 402, entitled “Accomplice Status Undisputed — Corroboration,” and AMI Crim. 2d 403, entitled “Accomplice Status in Dispute — Corroboration,” which the trial court refused without explanation. Appellant argues the trial court’s ruling was error. Our law is well-settled that a witness’s status as an accomplice is a mixed question of law and fact, and that when the status of a witness presents issues of fact, the defense is entitled to have the question submitted to the jury. Earl, 272 Ark. 5, 612 S.W.2d 98; Jackson v. State, 193 Ark. 776, 102 S.W.2d 546 (1937). The question must be submitted to the jury where there is any evidence to support a jury’s finding that the witness was an accomplice. Id.
Scott testified at trial, consistent with his testimony at the hearing on the motion in limine. His trial testimony, however, revealed the following additional facts that were not revealed at the hearing. Appellant and Slocum are cousins. Scott was “hanging out” on a street corner in his neighborhood when Slocum approached him and asked him to lure the victim to Hattison’s house. With Slocum were Shelby Baccus and Vida Davis. At that time, appellant was not with Slocum and the two others; rather, he was on his grandmother’s porch, which is across the street from the “hang-out” corner. Scott explained Slocum’s statement that Slocum would take care of Scott to mean that, in exchange for Scott luring the victim to Hattison’s home, Slocum would pay Scott in rock cocaine. Scott estimated he received rock cocaine worth $40.00 from Slocum. Scott testified that, approximately five minutes after appellant and Slocum left Hattison’s home with the victim, he heard a flurry of about ten gunshots. The first thought that came to Scott’s mind upon hearing the shots was, “[t]hey done shot that boy.” Scott explained the cash payments he received from the North Little Rock Police were for food and lodging for him and his parents to relocate after Scott told what he knew about the victim’s murder to the police. Most significantly, however, Scott stated that the reason the victim was killed was because the victim possessed knowledge that would implicate Slocum’s brother in another murder case. Scott testified that to avoid the victim’s implication of Slocum’s brother, “they had to eliminate Willie [Simpkins], I imagine.”
Scott’s testimony at trial creates a fact question as to his status as an accomplice. He knew there was ill will between the victim and the co-defendants. He was offered rock cocaine in return for luring the victim to the co-defendant’s reach. He initially denied knowledge of the co-defendants’ involvement in the crime. On this evidence, some of which was not known until Scott testified at trial, the trial court erred in refusing to give the proffered instruction AMI Crim. 2d 403. Due to the error, the jury was not given an opportunity to consider whether Scott was an accomplice and, if so, whether there was sufficient corroborating evidence presented. We therefore reverse the judgment of conviction and remand for a retrial.
We are well aware that when there is insufficient evidence to corroborate an accomplice’s testimony, the only remedy is reversal and dismissal due to jeopardy considerations. Foster v. State, 290 Ark. 495, 720 S.W.2d 712 (1986), supplemental opinion on denial of reh’g, 290 Ark. 498, 722 S.W.2d 869, cert. denied, 482 U.S. 929 (1987). However, in such cases, the witness’s status as an accomplice is not a fact question. See, id. When, as in the present case, the witness’s status as an accomplice presents a jury question and the jury was erroneously not given the opportunity to pass on that question, remand for retrial is the appropriate remedy. See Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984). Dismissal is not required in such cases because the jeopardy clause has not been violated; error in failing to instruct the jury does not relate to sufficiency of the evidence and the jeopardy clause. See United States v. Miller, 952 F.2d 866 (5th Cir.), cert. denied, 112 S. Ct. 3029 (1992) (citing Forman v. United States, 361 U.S. 416 (I960)). Retrial is the proper remedy where, as here, the jury was not given the chance to consider the question of the status of the accomplice, for it is quite possible for the jury to conclude either that the witness was not an accomplice or that there is sufficient corroborating evidence.
The judgment of conviction is reversed due to the error in refusing to give AMI Crim. 2d 403. The case is remanded for retrial. | [
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Robert L. Brown, Justice.
Appellant Greg Hogue appeals his capital murder conviction on grounds that the evidence was insufficient to support the judgment. We disagree and affirm the judgment.
On February 22, 1994, Jess Brown was working at Rocky’s One Stop, a convenience store located at the corner of John Barrow Road and Asher Avenue in Little Rock, which he owned. Sometime after 10:00 p.m., another employee, Marcus Hall, returned to the convenience store to buy batteries for a remote control device. He warned Jess Brown that he had seen two men standing by the laundromat near the store and that one of them was wearing a white scarf over his face. He said they ran off after seeing him.
Shortly after that, two men entered the store. One of them fired a shot which hit Jess Brown in the mid-chest region. The men fled the store after the shot was fired and were seen leaving the area in a white car with a dark roof. Jess Brown lived long enough to call 911 but later died from the gunshot wound.
Greg Hogue was ultimately charged with capital felony murder in the shooting death of Jess Brown with aggravated robbery as the underlying felony. A jury trial was held at which Mark Poindexter was the principal State witness. He testified that he hosted a party on February 22, 1994, and that Greg Hogue, Damion Brown, Harold Olive, and Anthony White were there, among others. He testified that Anthony White suggested they commit a robbery. Shortly after that, Poindexter left with Hogue, Damion Brown, White, and Olive to commit the robbery. They used his car — a white Delta 88 Oldsmobile — for transportation. Before they reached the site for the robbery, White “chickened out,” according to Poindexter, and jumped out of the car. When they reached their destination, they got out of the car and took the guns, a .38 revolver and a .380 semiautomatic pistol, out of the trunk. Poindexter testified that Hogue put on a red ski mask, and Damion Brown put a white rag over his face. Hogue and Damion Brown left and walked to the store. Approximately five to ten minutes later, Poindexter heard a gunshot. Hogue and Damion Brown returned to the car, and the group left. Damion Brown told Poindexter that he had dropped the gun. Poindexter testified that Hogue got out of the car somewhere on Barrow Road and that he, along with Damion Brown and Olive, returned to the party.
At the close of the State’s case-in-chief, Hogue’s counsel moved for a directed verdict specifically on grounds that the only connection between Hogue and the events of February 22, 1994, was through the testimony of accomplices and that there was not sufficient independent evidence to connect him to the crime. The trial court stated that Mark Poindexter was obviously an accomplice but found that other evidence presented tended to connect Hogue to the murder. Hogue’s counsel then argued that it was Hogue’s position that two corroborating witnesses were also accomplices and, thus, their testimony could not connect Hogue to the crime. The court ruled otherwise and denied Hogue’s motion for a directed verdict. The defense rested without calling any witnesses. The jury returned a verdict of guilty on the charge of capital felony murder. Following the penalty phase of the trial, Hogue was sentenced to life in prison without parole.
Hogue raises only one issue on appeal. He claims that there was insufficient evidence to support his conviction for capital fel ony murder and further maintains that adequate evidence corroborating the testimony of Mark Poindexter, the accomplice, was lacking. Because the sole ground given for his directed verdict motion was the absence of sufficient corroborative proof, that is the only ground preserved for our review. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). Contrary to what he contended before the trial court, Hogue does not argue on appeal that state witnesses, other than Poindexter, occupied the status of an accomplice.
Hogue is correct that when accomplice testimony is involved, our law requires that there be independent, corroborative evidence “tending to connect the defendant with the commission of the offense.” Ark. Code Ann. § 16-89-111 (e)(1) (1987). The State’s retort to this is that Hogue failed to request an instruction informing the jury (1) Mark Poindexter was an accomplice as a matter of law, and (2) it was necessary for the State to produce evidence connecting Hogue to the crime, independent of Poindexter’s testimony. By failing to ask for the instruction, according to the State’s theory, Hogue waived this argument. The State cites several cases in support of its argument. See Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Moser v. State, 266 Ark. 200, 583 S.W.2d 15 (1979); Odom v. State, 259 Ark. 429, 533 S.W.2d 514 (1976); see also, McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992).
We do not agree with the State’s analysis of our cases. We have stated that a defendant must either have the trial court declare a person an accomplice as a matter of law or submit the issue to the jury for determination. See, e.g., Rockett v. State, supra; Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990). But we have not required the defendant to do both in order to preserve the issue of an erroneous denial of a directed verdict motion. In the case at bar, there was a finding by the trial court that Poindexter was an accomplice. The court also found that there was sufficient corroborative evidence, and it denied the motion for directed verdict. As a result, the issue of whether the trial court properly denied the motion did not depend on whether a subsequent instruction was requested involving the same legal point. We conclude that Hogue preserved the issue of whether the trial court erred in declining to direct a verdict on insufficient corroborative evidence.
We must then decide whether sufficient evidence tending to connect Hogue to the crime, apart from Mark Poindexter’s testimony, was presented, as required under §16-89-111 (e)(1). We have held that the corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991); Johnson v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990); David v. State, 295 Ark. 131, 140, 748 S.W.2d 117, 122 (1988). The corroborative evidence must be substantial evidence which is stronger evidence than that which merely raises a suspicion of guilt. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Circumstantial evidence qualifies as corroborating evidence but it, too, must be substantial. See David v. State, supra. But corroboration need not be so substantial in and of itself to sustain a conviction. See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983); Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982).
Here, there is enough evidence to connect Hogue to the crime. First, there is the testimony of Marcus Hall, the employee of Rocky’s One Stop, who testified that he saw two men over by the laundromat next to Rocky’s One Stop. One of them had a white scarf that covered his mouth and nose. They ran when they saw him, and he told Jess Brown about them. Jess Brown and Hall then walked behind the counter to find the batteries to fit Hall’s remote control device. While Hall was bent down behind the counter, Jess Brown was shot. The events in the store were confirmed by the surveillance video which was introduced into evidence, although an identification of the men could not be made.
Dr. Peretti, a State medical examiner, confirmed that Jess Brown had been shot in the chest and testified that he died as a result of that wound.
Daniel Reed, a neighbor in the area, testified that as he was taking out his garbage on the night of the murder, he heard a gunshot. When he looked up, he saw two men running across the laundromat parking lot, which is next to Rocky’s One Stop. They got into a white car with a dark roof, possibly an Oldsmo bile, which was parked in the parking lot of the Optimist Club and drove away going east on Asher Avenue. The car did not have any license plates. He testified that one of the men was wearing a red ski mask and the other was wearing a white one. He testified that the man wearing the red ski mask was a few inches taller than the other.
Detective Mike Durham of the Little Rock Police Department testified that Greg Hogue’s height was approximately 6’ to 6T, while Damion Brown was 5’9”.
Alfreda Jackson testified that she went to a party at Mark Poindexter’s house on the night of the murder. She said that Mark Poindexter, Damion Brown, Harold Olive, and a person named “Greg” left the party at the same time she did. They followed her car until they reached Asher Avenue. She lost sight of them after that. She later returned to the party, and Poindexter, Damion Brown, and Olive were there, but “Greg” was not.
Dadtrick Arnold testified that he was at the party on the night of the murder. He stated that he overheard a conversation among Greg Hogue, Damion Brown, and Harold Olive in which they discussed “making a lick,” which meant a robbery. He testified that Hogue, Damion Brown, Olive, and Poindexter left approximately an hour later in Poindexter’s white car. He testified that there were guns at the party, a .380 semiautomatic pistol and .38 revolver, and that Anthony White had one and that either Damion Brown or Olive had the other. Olive had a pair of brown gloves. Arnold also testified that he told Little Rock police officers that Hogue had a red ski mask with him that night.
Myron McClendon testified that he, too, was at the party the night of the murder. While there, he saw a .38 revolver and a black .380 semiautomatic pistol. Anthony White and Harold Olive had those guns. He also saw Greg Hogue with a red ski mask that night. He stated that he heard Damion Brown tell Freda Jackson and Lila Harnett that they were going to “hit a lick,” which meant commit a robbery. After hearing that, Poindexter, White, Hogue, Damion Brown, and Olive left in Poindexter’s white Oldsmobile.
Officer Ronnie Smith of the Little Rock Police Department testified that he recovered a red ski mask, some brown gloves, and a .380 semiautomatic pistol from Anthony White’s house. Anthony White’s mother, Joyce White, testified that Hogue came to her house the night of the murder and that he also returned the next morning.
Detective Don Bakelekos of the Little Rock Police Department testified chat he executed the arrest warrants for Greg Hogue and Damion Brown. When the police knocked on the door and announced their presence, Hogue and Damion Brown tried to leave out the back door.
In sum, we have evidence placing Hogue in a white Oldsmobile with a red ski mask on Asher Avenue about the time the murder occurred. We have evidence that the occupants of the car were armed. We have evidence that the plan was to commit a robbery and that Hogue participated in formulating that plan. A man was seen at the crime scene wearing a red ski mask and returning to a white car that looked like an Oldsmobile after a gunshot was heard. A red ski mask was recovered by police officers at a home where Hogue had been. Hogue tried to escape when police officers announced their presence at his door. We conclude that the evidence connecting Hogue to the murder is substantial.
The record has been examined pursuant to Supreme Court Rule 4-3(h) for other reversible error, and none has been found.
Affirmed. | [
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Per Curiam.
The appellant, George Jordan, has filed a motion for rule on the clerk. His attorney, Henry C. Morris, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Profes sional Conduct. | [
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Bradley D. Jesson, Chief Justice.
This appeal poses the basic question of whether a former husband’s lawsuit for breach of fiduciary duty, clergy malpractice, intentional infliction of emotional distress, and negligence is barred by the General Assembly’s abolition of alienation of affection actions. See Ark. Code Ann. § 16-118-106 (Cum. Supp. 1993). The appellant, Don Cherepski, brought suit against Donald Walker, a Catholic priest, Bishop Andrew McDonald, individually and as agent for the Roman Catholic Diocese of Little Rock, Arkansas, and the Roman Catholic Church, and Susan Walker, appellant’s former wife. His amended complaint alleged that, while serving as Chancellor of the Diocese and in charge of the Diocesan Marriage Tribunal, Father Walker began an adulterous affair with Susan. As a result of the appellees’ actions, Cherepski claimed he was left emotionally and spiritually devastated.
Bishop McDonald and the Walkers filed separate motions to dismiss, each alleging that Cherepski’s suit amounted to a claim for alienation of affection. Bishop McDonald additionally asserted that the claim for clergy malpractice was not recognized in Arkansas and that the claims were barred by the First Amendment, the doctrine of charitable immunity, and the statute of limitations. The trial court granted the appellees’ motions to dismiss, yet refused the Walkers’s request to impose sanctions under Ark. R. Civ. P. 11 against Cherepski, as well as Cherepski’s counter-request for sanctions against the Walkers. Cherepski brings seven points on direct appeal, and the Walkers cross-appeal the trial court’s refusal to award Rule 11 sanctions against Cherepski. On direct appeal, we treat the trial court’s dismissal of the claims as a granting of summary judgment. We affirm the granting of summary judgment in Bishop McDonald’s favor on the grounds that the claims against him were barred by the statute of limitations. We conclude that the claims against the appellees for interference with Cherepski’s annulment proceedings are outside our jurisdiction. We affirm the granting of summary judgment in the Walkers’ favor on the basis that the suit essentially amounted to an action for alienation of affection. In so holding, it is unnecessary to address Cherepski’s remaining points on appeal. On cross-appeal, we affirm the trial court’s refusal to impose sanctions against Cherepski.
Fads
The facts as alleged in Cherepski’s amended complaint are as follows. Don and Susan Cherepski were married in 1972. Five children were born to the marriage. In 1986, Susan became employed with the Roman Catholic Diocese of Little Rock. In September of 1988, Donald Walker, a priest, arrived at the Little Rock Diocese from the Philadelphia Diocese, where he had been Chancellor. Upon Cherepski’s “information and belief,” the Chancellors of the two cities were exchanged due to each Chancellor’s alleged involvement with women in his respective Diocese. Walker became Chancellor to Bishop McDonald, a position only second to the Bishop in authority in the Diocese. He was also placed in charge of the Diocese Marriage Tribunal, having authority over Catholic marriages in the Diocese. Shortly after Walker’s arrival in Little Rock, he began spending his days off with Susan, taking all day trips out of town with her, and staying at the Cherepski residence several nights a week until 10:30 or 11:00 p.m., drinking alcohol to the point of intoxication. On one occasion in January of 1989, while appellant was stranded in a Dallas ice storm, Walker spent the night at the Cherepski home with Susan. On another occasion, Walker stayed the night with the Cherepskis at their Hot Springs lakehouse. Walker and Susan stayed up until the “wee hours drinking and cavorting in the bedroom,” and Susan did not come to bed that evening. While Cherepski felt that Walker’s conduct “seemed highly improper,” he had no proof at this time that he was having an affair with Susan.
Cherepski and his mother, Edith Cherepski, became increasingly concerned over the accelerating “friendship” between Susan and Father Walker. Although Walker’s Little Rock assignment was scheduled to end in 1989, Bishop McDonald extended the assignment through 1990. In September of 1989, Susan sued the appellant for divorce and moved into a home owned and furnished by the Diocese. According to Cherepski, it was “shortly thereafter” when he met with Bishop McDonald and pleaded for his assistance in “removing Walker from his family life.” The Bishop refused to discuss the matter, and later denied having met with Cherepski about the problem. During this time, Edith Cherepski wrote numerous letters to the Bishop asking him to intervene. According to Bishop McDonald, Edith was not a credible source. The complaint further alleged that, after Susan had filed for divorce, and approximately six months prior to the time assignments were to be made in June of 1990, Bishop McDonald reassigned Walker to St. Theresa’s Parish, the Cherepskis’s church. On March 6, 1990, Bishop McDonald called Cherepski at work and demanded to meet with him. The two met later that day, at which time the Bishop “harassed and intimidated” him, insisting that he not call any priests as witnesses at his upcoming divorce trial.
The Cherepskis were granted a divorce on the appellant’s counterclaim on October 11, 1990. Susan was awarded custody of the couple’s five children. She subsequently took the children to Albuquerque, New Mexico, without telling Cherepski, who located them two weeks later, only to learn that Susan and Walker had married. Cherepski alleged that this “chain of events” confirmed what he had suspected, but could not prove. Cherepski successfully sought custody of the children and eventually remarried.
Cherepski alleged that Bishop McDonald had a fiduciary duty to promote his spiritual well-being and to refrain from taking any action that would interfere with his spiritual well-being. Cherepski further alleged that the Bishop breached this duty owed him, committed clergy malpractice, and was negligent in allowing various rendezvous between Susan and Father Walker to take place at the expense of the Diocese when he was fully aware of their relationship. It was alleged that Bishop McDonald, who had supervisory authority over Father Walker, was negligent in failing to supervise and shepherd his actions. Cherepski also claimed that the course of conduct engaged by Bishop McDonald constituted the tort of intentional infliction of emotional distress.
Cherepski further asserted that Father Walker, as Chancellor, head of the Diocesan Marriage Tribunal, and later as priest at Cherepski’s church, had a fiduciary duty to promote his spiritual well-being and to refrain from taking any action that would interfere with his spiritual well-being. Cherepski alleged breach of fiduciary duty, negligence, and intentional infliction of emo tional distress. The complaint further alleged that Susan Walker was an orchestrator, direct participant, co-conspirator, and that she had aided and abetted in all other actions alleged. He also claimed consistent and malicious interference with his attempts to obtain an annulment, resulting in his inability to receive sacraments or to have his remarriage recognized. Cherepski sought damages for emotional pain and suffering, punitive damages, and investigation and attorney’s fees.
Bishop McDonald and the Walkers filed separate motions to dismiss. The Walkers attached affidavits and other exhibits to their motion and sought sanctions against Cherepski under Ark. R. Civ. P. 11. Cherepski submitted separate responses to the motions and filed a counter-motion for Rule 11 sanctions against the Walkers, which also included attached exhibits. Following a hearing, the trial court entered an order dismissing Cherepski’s complaint with prejudice. The trial court entered a subsequent order denying the Walkers’s motion and Cherepski’s counter-motion for Rule 11 sanctions. The parties filed timely notices of appeal.
I. Summary judgment
As the parties presented affidavits and other matters outside the pleadings to the trial court on the motion to dismiss, we will treat the motion as one for summary judgment. See Ark. R. Civ. P. 12(b) and (c); Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26, 888 S.W.2d 657 (1994); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991). Summary judgment should only be granted when there are no genuine issues of material fact and when the case can be decided as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995). We limit our review to examining the evidentiary items presented below and to determining whether the trial court correctly ruled that those items left no material factor in dispute. Id. We view the facts in the light most favorable to the party against whom the motion was filed, and all doubts and inferences are resolved against the moving party. Id.
II. Claims against Bishop McDonald
A. Statute of limitations
In his motion to dismiss filed below, appellee Bishop McDonald asserted that Cherepski’s case was barred by the three-year statute of limitations for tort actions. Ark. Code Ann. § 16-56-105 (1987). It is well settled that a defense of limitation is an affirmative defense. Id.
When it is clear on the face of the complaint that the plaintiffs action is barred, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was tolled. Id., citing First Pyramid Life Ins. Co. v. Stolz, 311 Ark. 313, 843 S.W.2d 842, cert. denied, 114 S. Ct. 290 (1992). On appeal, Cherepski asserts that the statute was tolled due to Bishop McDonald’s fraudulent concealment. While such concealment does suspend the running of the statute of limitations, the suspension remains in effect only until the party having the cause of action discovers the concealment or should have discovered it by the exercise of reasonable diligence. Id. Cherepski filed this lawsuit on August 16, 1993. Thus, for his complaint to have been timely filed, he must neither have known, nor have been able to discover through reasonable diligence, the alleged fraudulent concealment on the part of Bishop McDonald before August 16, 1990.
The complaint alleges that, in September of 1988, Bishop McDonald, aware of the fact that Father Walker had allegedly been involved in sexual misconduct at the Philadelphia Diocese, brought him to the Little Rock Diocese. In 1989, Bishop McDonald extended Walker’s assignment. In late 1989 or early 1990, Bishop McDonald assigned Father Walker to Cherepski’s church, St. Theresa’s. On March 6, 1990, Bishop McDonald had a conversation with Cherepski in which he asked Cherepski not to call any of his priests as witnesses in the upcoming divorce trial. On the face of the complaint, it appears that these allegations against Bishop McDonald are barred. Thus, the burden shifted to Cherepski to prove, by a preponderance of the evidence, that the statute was tolled.
On appeal, Cherepski contends that “examples” of Bishop McDonald’s concealment include his denial in a 1990 deposition that he had any knowledge of the relationship between Father Walker and Susan, and Edith Cherepski’s letter and “other evidence” showing that the statement in his deposition was false. However, paragraph 8 of Cherepski’s amended complaint states that he asked Bishop McDonald to intervene shortly after September of 1989 “to help remove Walker from his family’s life.” Similarly, Edith Cherepski’s letter to Bishop McDonald, in which she complained that Father Walker “is apparently involved in breaking up” the Cherepski family, is dated November 17, 1989. The record simply does not support Cherepski’s assertion of fraudulent concealment on the part of Bishop McDonald, and he cannot avail himself of the benefit of tolling of the statute on this basis. See Alexander v. Flake, supra. The evidence leaves no room for a reasonable difference of opinion that the statute barred these claims against Bishop McDonald; therefore, the trial court correctly ruled that no material factor was left in dispute. Thus, the only remaining claim against Bishop McDonald is the allegation that he and the Walkers have interfered with Cherepski’s attempts to have his marriage to Susan annulled.
III. Claims of interference with annulment proceedings
Cherepski alleges that, since October of 1990, Bishop McDonald and the Walkers have consistently and maliciously interfered with his attempts to obtain an annulment. Because of this interference, Cherepski complains that he is unable to have his remarriage recognized or to receive sacraments. These claims are outside our jurisdiction, as we will not entangle ourselves in ecclesiastical matters. Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988); Kinder v. Webb, 239 Ark. 1101, 396 S.W.2d 823 (1965). Nowhere in Cherepski’s amended complaint does he specifically allege a conspiracy on the part of appellees to have him excommunicated from the Catholic Church; rather, his claims are purely religious in nature, as the record indicates that the Tribunal of the Diocese of Dallas adjudicated his annulment petition. As in Gipson, the record in this case fails to reveal a compelling state interest that would justify application of our laws in light of the constitutional proscriptions against interference with the Free Exercise Clause of the First Amendment. Because Cherepski’s claims of interference with his annulment proceedings and his ability to receive communion involve matters of church doctrine and discipline, we will not address them.
IV. Claims against the Walkers
Through the passage of Act 46 of 1989, the General Assembly abolished alienation of affection and criminal conversation as causes of action. See also Ark. Code Ann. § 16-118-106 (Cum. Supp. 1993). While the Walkers claim that Cherepski’s claim is one for alienation of affection disguised under different labels, Cherepski asserts that the legislature’s abolishment of this tort does not bar his cause of action. Particularly, Cherepski contends that his complaint presents “a question of fact as to whether a fiduciary relationship existed,” and that it states causes of action for clergy malpractice and outrage.
In defending his claims, Cherepski cites Destefano v. Grabian, 763 P.2d 275 (Colo. 1988). In that case, a husband sued a Catholic priest and the Diocese of Colorado Springs, alleging that the priest, from whom the husband and his wife had consulted for marriage counseling, had induced his wife into engaging in sexual relations with him. The husband asserted claims for negligence, outrage, and breach of fiduciary duty. The trial court dismissed the action, and the court of appeals affirmed. The Colorado Supreme Court granted certiorari on two issues: (1) whether the state’s heart balm statute barred an action against a person who assumes the role of marriage counselor when the counseling relationship results in consensual sexual relations between a counselor and a counselee; and (2) whether the free exercise clause of the First Amendment to the United States Constitution prohibits tort liability for conduct which arose in the context of a counseling relationship between a clergyman and members of his congregation. The Colorado Supreme Court agreed that the husband’s claims for negligence and outrage were essentially claims for alienation of affection and criminal conversation and were properly dismissed. The Destefano court reversed, however, on the fiduciary duty issue, concluding that the priest, given the nature of the relationship as a marriage counselor to the couple, owed a fiduciary duty; that is, he had a duty not to engage in conduct which might harm the marital relationship.
We are not called upon to decide whether a cause of action would be cognizable in Arkansas in instances involving a counseling relationship, and the holding in Destefano was clearly premised on the priest’s role as a marriage counselor, not his role as a priest. Thus, Destefano is simply not on point here, as it is undisputed that Father Walker was not acting as the Cherepski’s marriage counselor. We will now examine the individual claims against Walker.
A. Fiduciary duty
In his brief, Cherepski repeatedly maintains that the question of whether a fiduciary duty exists is a question of fact. This is an incorrect statement of the law. The question of what duty is owed is always a question of law. First Commercial Trust Co. v. Lorcin Eng’g, 321 Ark. 210, 900 S.W.2d 202 (1995); Keck v. American Employment Agency Inc., 319 Ark. 294, 652 S.W.2d 2 (1993). Cherepski asserts that, as a devout Catholic, his trust was imposed in the integrity of Father Walker, and that Walker had a duty to promote his spiritual well-being and refrain from taking any action which would interfere with his spiritual well-being.
A person is ordinarily not liable for the acts of another unless a special relationship exists between the two parties. Id. A person standing in a fiduciary relationship with another is subject to liability to the other for harm resulting from a breach of the duty imposed by the relationship. Restatement (Second) of Torts § 874 (1979); see also Destefano v. Grabian, supra. Cherepski has not alleged that he entrusted any matter to Father Walker while Walker served as Chancellor or as judge of the Diocesan Marriage Tribunal. While Walker was eventually assigned to Cherepski’s church, he did not become Cherepski’s priest until after Susan had filed for divorce. Cherepski cites Adams v. H.L. Moore, 385 S.E.2d 799 (N.C.App. 1989) and Nelson v. Dodge, 76 R.I. 1, 68 A.2d 51 (1969), in support of his position that Walker owed him a duty; however, both of these cases involved disputes over property transactions. We conclude that Cherepski’s claim for breach of fiduciary duty is nothing more than a claim for alienation of affection in disguise. Because the legislature abolished this tort in 1989, there can be no violation of a nonexistent right. Other courts faced with claims for breach of fiduciary duty in similar factual settings have reached the same result. See e.g., Dausch v. Ryske, 52 F.3d 1425 (7th Cir. 1994); Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993); Strock v. Pressnell, 527 N.E.2d 1235 (Ohio 1994).
B. Clergy malpractice
Cherepski further contends that the trial court erred in dismissing his claim for clergy malpractice against Father Walker. On appeal, he characterizes this claim as a “negligence-based” cause of action. Arkansas does not recognize clergy malpractice as a cause of action. Several other courts confronted with this issue have specifically refused to recognize clergy malpractice as a separate, cognizable cause of action. See, e.g. Destefano v. Grabian, supra; Schieffer v. Catholic Archdiocese, 508 N.W.2d 907 (Neb. 1993). Other courts have held that clergy malpractice was not available under the particular facts alleged. See, e.g. Bladen v. First Presbyterian Church, supra; Hester v. Barnett, 723 S.W.2d 544 (Mo. App. 1987) see also John F. Wagner, Annotation, Cause of Action for Clergy Malpractice, 75 A.L.R.4th 750 (Supp. 1995). As clergy malpractice is not cognizable in this state, summary judgment was proper as a matter of law.
C. Outrage
We recently set out the elements of the tort of outrage in Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995). To establish a claim for outrage, or intentional infliction of emotional distress, a plaintiff must prove: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous and utterly intolerable in a civilized community; (3) the conduct was the cause of the plaintiff’s distress; and (4) the plaintiff’s emotional distress was so severe in nature that no reasonable person could be expected to endure it. Id. at 121.
While Cherepski couches his amended complaint in terms of intentional infliction of emotional distress, it is clear that his complaint is in essence an action for alienation of affection. The complaint is replete with references to the accelerating “friendship” between Father Walker and Susan, their alleged adulterous affair, Cherepski’s and Susan’s eventual divorce, and Cherepski’s resulting emotional pain and suffering. The real character of Cherepski’s claim is of an amatory tort. His attempt to label his claim otherwise does not remove it from its true characterization as a claim for alienation of affection, which the legislature has chosen to abolish as a cause of action. Other courts have treated similar claims for outrage as veiled attempts to bring an action for alienation of affection. Destefano v. Grabian, supra; Bladen v. First Presbyterian Church, supra; Wilson v. Still, supra; Strock v. Pressnell, supra. We conclude that the trial court correctly ruled that Cherepski’s claims against the Walkers left no material factors in dispute.
V. Cross-appeal — Rule 11 sanctions
The Walkers cross-appeal the trial court’s denial of sanctions against Cherepski under Ark. R. Civ. P. 11. The trial court also denied Cherepski’s counter-motion for sanctions against the Walkers, but Cherepski does not appeal this ruling. In reviewing a trial court’s Rule 11 determination, we do so under an abuse of discretion standard. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). The Walkers contend that Rule 11 sanctions should have been imposed against Cherepski and his counsel since they knew, or should have known, that all amatory actions were abolished in 1989. The Walkers further assert that the fact that Cherepski’s former wife Susan was named as a defendant proves a vengeful motive.
Under Rule 11, an attorney signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that he or she has made a reasonable inquiry (1) into the facts supporting the document or pleading; (2) into the law supporting the document to ensure that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that he or she (3) did not interpose the document for any improper purpose, such as to harass, to cause unnecessary delay, or to increase the cost of litigation. Id. at 194-195, 828 S.W.2d 833. Since the General Assembly abolished alienation of affection as a cause of action in 1989, we have not had occasion to consider whether claims such as those asserted in this case are barred by the legislature’s abolition of amatory torts. The parties have cited numerous cases from other jurisdictions who have considered similar questions. In sum, we cannot say that the trial court abused its discretion in denying the request for sanctions against Cherepski.
Affirmed on direct appeal and cross-appeal.
Special Justices Gene Harrelson, Worth Camp, Jr., and Jill R. Jacoway join in this opinion.
Glaze, J., concurs.
Newbern, Corbin, and Brown, JJ., not participating.
The Walkers did not specifically plead the defense of limitations. While they attempt to defer to Bishop McDonald’s argument on this point on appeal, they were required to have pleaded this defense below. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969) (where statute of limitations was not pleaded, it cannot be relied upon even though the face of the record indicated it might have been a good defense if pleaded). | [
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Per Curiam.
Appellant Dinzel Norman was found guilty by a jury of conspiracy to manufacture a controlled substance and manufacture of a controlled substance in September 1994. A timely notice of appeal was filed by his appointed attorney George Stone on September 27, 1994. On December 13, 1994, the circuit court extended the time for filing the record until March 27, 1995.
Mr. Stone did not tender the record to this court until March 30, 1995. Mr. Stone subsequently filed a motion for rule on clerk in which he contended that the circuit clerk was at fault in the late tender of the record. We denied the motion and directed that Stone file by May 24, 1995, a motion accepting full responsibility for the untimely tender of the record. Norman v. State, 320 Ark. 344, 896 S.W.2d 874 (1995). Stone did not file the motion.
On January 25, 1996, appellant filed the pro se motion and amended motion for rule on the clerk which are now before us. He argues that he has been denied effective assistance of counsel and his constitutional right to appeal by counsel’s conduct. We agree.
While an appellant may waive a direct appeal of a judgment of conviction by failing to inform his attorney of his desire to appeal within the time provided for filing a notice of appeal, it is clear that the appeal would have been perfected in this case had it not been for the failure of counsel to admit fault where it was evident from the motion for rule on the clerk that the attorney did not render effective assistance of counsel.
The attorney’s contention that the circuit clerk was somehow responsible for the failure to perfect the appeal was in error. We have consistently held that the appellant’s attorney is responsible for filing the record,- not the trial judge, the court reporter, or, as was claimed in this case, the circuit clerk. Lewis v. State, 295 Ark. 165, 747 S.W.2d 91 (1988). Here, the attorney compounded his error in not filing the record by not accepting fault for the untimely tender of the record. His inaction has left the appellant in the position of having an attorney-of-record since Stone has never been relieved from his responsibility in the case but having no representation.
The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by dismissing his first appeal as of right when his appointed counsel has failed to follow mandatory appellate rules. Evitts v. Lucey, 469 U.S. 387 (1985). To cut off a defendant’s right to appeal because of his attorney’s ineffectiveness would violate the sixth amendment right to effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387; see also Pennsylvania v. Finley, 481 U.S. 551 (1987).
Appellant asks that an attorney other than George Stone be appointed to represent him on appeal on the ground that Stone has failed to perfect the appeal. The fact that Stone elected to abandon the appeal, however, is not in itself cause to relieve him of his responsibility to provide appellant with effective assistance of counsel in the appeal. Stone is the attorney most familiar with the case, and thus in the best position to prepare the appellant’s brief, and should be required to do so.
The pro se motion for rule on clerk is granted. The clerk is directed to lodge the record, and George Stone is directed to file the appellant’s brief within forty days of the date of this opinion.
George Stone shall be directed by separate Per Curiam order to appear before this court on February 26, 1996, at 9:00 a.m. and show cause why he should not be held in contempt for failure to file the appellant’s brief in accordance with our Per Curiam opinion of April 24, 1995.
A copy of this opinion shall be forwarded to the Committee on Professional Conduct.
Motion and amended motion granted in part and denied in part. | [
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Donald L. Corbin, Justice.
Appellee, Gary Needham, as plaintiff below, sought a judgment in the Craighead County Chancery Court declaring that the automobile liability insurance policy issued to him by appellant, Equity Fire and Casualty Company, on October 15, 1993, was in force on November 17, 1993, the date appellee was involved in an automobile accident with a third party. Appellant denied coverage on the ground that the policy had lapsed prior to the date of the accident due to non-payment of premium. Appellant appeals the chancellor’s order, filed November 28, 1994, granting appellee’s counter-motion for summary judgment. The judgment is affirmed. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a) (3).
Our standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). We view all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. When the facts are undisputed, we simply determine whether the movant was entitled to judgment as a matter of law. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994).
The facts, construed in appellant’s favor, are as follows. On October 15, 1993, appellant issued an insurance policy to appellee for automobile liability coverage for the six-month period beginning on October 15, 1993. The policy premium, subject to adjustment as a result of appellee’s motor-vehicle report or other underwriting factors, was $414.00, plus a $5.00 policy fee. Appellee elected to pay the premium in installments, whereby he would pay one-third of the premium, $143.00, at the time of application, and would be billed for the remaining balance in four monthly payments. Appellee paid $143.00 to appellant’s local agent, Ms. Cheryl Cook, and was informed by her that he would receive the next payment-due notice in approximately fifty-five days.
Appellant mailed a notice, dated October 23, 1993, to appellee that billed him for an additional downpayment in the amount of $75.00, and informed him that, in accordance with the terms and conditions of his policy, his insurance would cease at 12:01 a.m. on November 5, 1993, if the payment was not received prior to that time. The $75.00 amount represented the one-third portion of appellee’s increased policy premium, as adjusted by appellant after appellee’s motor-vehicle report revealed prior traffic violations, which was allocable to the pre mium downpayment. The adjusted premium for the full six months’ coverage was $624.00. Appellee denies receipt of the October 23, 1993 billing/cancellation notice or, prior to the date of his accident, of any other communication from appellant or Ms. Cook regarding the $75.00 additional downpayment due or the cancellation of his insurance. Appellee did not tender the $75.00 payment to appellant.
On November 17, 1993, appellee was involved in an automobile collision, and upon reporting the accident to Ms. Cook’s office on that date, was informed that his insurance had been cancelled on November 6, 1993 for non-payment of the additional $75.00 premium downpayment. Appellee also received on November 17, 1993, written confirmation of the cancellation of his policy from Ms. Cook’s office.
On November 27, 1993, Ms. Cook received a check from appellant, dated November 11, 1993, which was payable to appellee in the amount of $63.00. Ms. Cook stated in her deposition testimony attached to appellee’s counter-motion for summary judgment that the $63.00 was for “the remaining amount that he had left on the policy because he failed to make the additional payment.” Ms. Cook mailed the refund check to appellee.
Appellee was contacted later by the insurance carrier for the other party to the automobile collision regarding appellee’s liability for the other party’s damages. After appellant’s denial of coverage, the instant litigation ensued.
Appellee’s counter-motion for summary judgment included his argument that Ark. Code Ann. § 23-89-303 (Supp. 1993), which sets forth grounds for cancellation, prohibited the cancellation or rescission of any automobile-liability policy that has been in effect for less than sixty days. In his supporting memorandum brief to the chancellor, appellee also argued that, even if the chancellor held that the additional premium was due, appellee had paid sufficient funds to buy coverage to the date of the collision if calculated on a prorated basis. In her deposition, Ms. Cook stated that if appellant had prorated the downpayment at the increased rate per day, then appellee’s policy was paid up until sometime after the date of his accident, November 17, 1993. A hearing was conducted in which both the statutory-construction issue and the pro-rata-payment issue were addressed.
By letter opinion dated November 14, 1994, the chancellor found, in pertinent part:
There is no claim of misrepresentation or fraud.
The sum of $143.00 paid to defendant’s agent by plaintiff on October 15, 1993, would constitute a sufficient amount to pay the premium on the policy in question through the period the accident occurred. ACA § 23-89-303 provides the grounds for cancellation including non-payment of premiums; however, §(b) provides that the grounds for cancellation do not apply if the policy had been in effect less than 60 days unless it is a renewal policy. It is, therefore, the Opinion of the Court that the policy in question was in effect on November 17, 1993, and defendant is bound by the terms and provisions of that policy.
On November 28, 1994, the chancellor’s order was filed granting summary judgment for appellee and incorporating the findings of fact set forth in the November 14, 1994 letter opinion.
Appellant’s sole point for reversal is that the trial court erroneously construed section 23-89-303 as prohibiting cancellation of appellee’s policy within sixty days of its issuance. Appellant argues that, pursuant to section 23-89-303(b), the statute is not applicable to this case because the cancellation was effected within six months of the policy’s issuance, and, therefore, the cancellation was governed solely by the terms and conditions of the policy. Appellee disputes this argument, and, in addition, argues that the judgment should be affirmed on the alternative ground that the chancellor found that the policy was in force on November 17, 1993, due to pro-rata application of appellee’s $143.00 premium downpayment.
Appellant does not address the merits of the chancellor’s ruling as regards pro-rata payment of the premium through the date of the accident. Appellant responds that it does not raise the pro-rata-payment issue on appeal and does not request this court to rule upon it because the issue is not dispositive of the case, and, therefore, is not proper for appeal. Appellant argues that the parties agreed that the statutory-construction issue was the threshold question in this case and that the issue of whether the premium was paid on a pro-rata basis through the date of the accident is not dispositive.
We disagree. Regardless of what the parties agreed was the threshold issue in this case, the chancellor indisputably ruled that: “The sum of $143.00 paid to defendant’s agent by plaintiff on October 15, 1993, would constitute a sufficient amount to pay the premium on the policy in question through the period the accident occurred.” In light of the fact that the sole reason for the cancellation was non-payment of premium, the chancellor’s finding that a sufficient premium was in fact paid invalidates the stated ground for the cancellation, and, thereby, renders moot the issue of whether the cancellation was also statutorily prohibited because it occurred within six months of the policy’s issuance.
In oral argument before this court, appellant’s counsel stated that the chancellor’s judgment was not based on the prorata-payment ruling as an alternative ground, and that the prorata-payment issue was not adequately developed below because the parties concentrated on the statutory-construction issue. These arguments are not persuasive on the facts. Further, it was up to appellant to obtain a ruling giving the basis of the chancellor’s ruling. Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993).
As we have held many times, the burden is on appellant to bring up a record sufficient to demonstrate error, and, where appellant fails to meet that burden, the trial court must be affirmed. E.g., Troutt v. Matchett, 305 Ark. 474, 808 S.W.2d 777 (1991). Appellant fails to demonstrate that the chancellor’s ruling on the pro-rata issue is error. Appellant presents no authority or convincing argument contradicting the chancellor’s ruling on the pro-rata issue. The record, in fact, fails to reveal any citation to authority either supporting or contradicting the chancellor’s ruling on this issue. Arguably, however, authority for the chancellor’s ruling is found in National Union Fire Ins. Co. v. Want, 181 Ark. 824, 832, 28 S.W.2d 63, 66 (1930), a case that is cited by neither party, wherein this court stated:
[I]t is the law that, where a part payment is made and accepted on a premium which amounts to more than the premium then earned, and a loss occurs before the whole of the premium paid has been earned, there is a waiver of any forfeiture on account of a failure to pay the whole premium. This is an application of the simple principle that it would be inequitable to permit the insurer to receive and retain the insured’s money without giving him credit for it, and if credit is given it must be applied to extend the insurance for such proportionate time as the money received and held would pay.
Where appellant fails to cite any authority or present any convincing argument, and it is not apparent without further research that appellant’s position is well taken, we will affirm. Firstbank of Ark., 312 Ark. 441, 850 S.W.2d 310. We therefore affirm the judgment on the basis of the chancellor’s ruling on the pro-rata-payment issue.
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Per Curiam.
Joe Guinn asks for a rule on the clerk. He alleges that we should grant the rule because he was misled by a prosecuting attorney and a member of a Drug Task Force, and, as a result, did not timely perfect his appeal. We deny the motion.
According to movant’s affidavit, the judgment of conviction was entered on February 24, 1995, he filed a motion for a new trial on April 7, 1995, and he filed a pro se Notice of Appeal on May 5, 1995.
A motion for a new trial must be filed within ten days after the entry of the judgment, Ark. R. Civ. P. 59, and a notice of appeal must be taken within thirty days from the entry of the judgment, Ark. R. App. P. 4(a). Here, the motion for a new trial was not filed within ten days and is of no effect, and the notice of appeal was not filed within thirty days. Thus, on the surface, the clerk correctly refused to allow appellant to file the record in this case.
Movant alleges, however, that the record was tendered late because he was misled by judicial district officials. However, the allegation is not material to the failure to timely file the notice of appeal. He alleges that he was misled “[s]oon after filing my Notice of Appeal.” Consequently, even if he were misled, it occurred after he filed his notice of appeal; therefore, it had nothing to do with the untimely filing of his notice of appeal. We deny the motion for a rule on the clerk. | [
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Robert L. Brown, Justice.
The appellant in this case, Wendell Croom, urges two points in his appeal: (1) evidence of the tort of outrage was insufficient, and (2) the trial court erred in instructing the jury. We agree with the appellee, Kathie Younts, on both points and affirm the judgment.
Kathie Younts is the mother of Rachel Younts, who at the time of the events in question in 1993, was age 15. (Rachel Younts’s date of birth was October 2, 1977.) Younts is also the first cousin of Wendell Croom, who in the summer of 1992 lost his wife to cancer. During the time of the events leading to this litigation, Croom was 51. In January of 1993, Younts planned to go to Hawaii and visit a man whom she was engaged to marry. She needed someone to watch over her daughter Rachel and her younger daughter, Katie, while she was away. Croom first volunteered to do this but then attempted to renege the day before she left on the basis that he was inclined to drink alcoholic beverages and something might happen to the girls or someone might make an insinuation about the appearance of Younts’s daughters staying in his home. Younts implored him to reconsider which he did, and she left for her visit to Hawaii which was to last from January 6, 1993, to January 16, 1993.
While in Hawaii, Younts telephoned home on a daily basis but noticed that towards the end of her trip Rachel had been reluctant to come to the phone. When Younts returned, she observed that her children had become very attached to Croom, especially Rachel. Croom would call regularly and invite the girls over. Though Younts would refuse Croom’s offer to drive Rachel home from her school, Croom would on occasion pick her up anyway. Younts initially attributed this to Croom’s loneliness and lack of social friends. She urged Croom to stop intruding in her daughter’s life with offers of transportation and dinners, but Croom persisted.
The matter came to a head when Croom asked Younts if he could take Rachel to visit his wife’s and father’s graves. She balked at the invitation but eventually relented on the condition that Rachel would be home for church services at 5:00 p.m. Croom did not meet the deadline but rather called about 7:00 p.m. and told Younts that he and Rachel were having dinner at a restaurant. She demanded that Croom bring Rachel home, and he responded, according to Younts: “I’m getting sick and tired of you telling Rachel what to do. She’s a grown woman, I’m a grown man and to hell with you.” Croom brought Rachel home at midnight. There was a confrontation between Younts and Croom at that time, during which Croom expressed his love for Rachel. He refused to leave until he found out what punishment Younts was going to mete out to Rachel. Younts finally got a knife from the kitchen and threatened Croom with it, and he left. Younts then told her daughter that she was not to see Croom again, and later that night, Rachel attempted suicide by ingesting her brother’s asthma medicine. She was taken to Children’s Hospital and admitted on March 8, 1993. On the night of admission, Croom showed up at Children’s Hospital intoxicated, accused Younts of precipitating the suicide attempt, and professed that he was the only one who truly cared for Rachel. He had to be escorted from the hospital by security personnel.
At the hospital, Rachel initially denied that she had had a sexual relationship with Croom but then admitted it to a staff social worker on April 4, 1993. She stated that it began while her mother was in Hawaii and that Croom had forced sexual activity upon her. During the course of Rachel’s treatment, she was prescribed the antidepressant medication, Prozac, and on April 14, 1993, she was discharged from the hospital. On June 17, 1993, she was readmitted to Children’s Hospital after superficially slashing her wrists. She remained at the hospital until July 6, 1993.
On February 3, 1994, Younts brought suit against Croom and alleged violations of the torts of seduction and outrage. Before the trial, the trial court dismissed the seduction claim. At trial, Rachel explained how her sexual relationship with Croom developed. She testified that Croom had plied her with wine during a cookout with neighbors, and after they had left, he asked her into his bedroom and gave her a prescription medicine, Xanax. He then took her to bed and had sexual relations with her. She testified that following that first experience she had sexual relations with Croom 10 or 15 times. During this period, she described her state of mind as being “mad” and “just chaotic.” She added that she was “sad” and “hated” herself. Following the confrontation between her mother and Croom, during which Younts pulled the kitchen knife, Rachel decided to take all of the medicine in the medicine cabinet, including her brother’s asthma medication, and “lay down and just go to sleep.”
Croom’s defense at trial was that he was abusing alcohol daily and that Rachel initiated the sexual contact and told him he would never have to worry about getting into trouble. Before the relationship with Rachel developed, he testified that he was impotent. He also testified that after she was hospitalized, he sent her dimes, and she called him twice a day. Croom admitted at trial that he had been convicted of sexual misconduct, a class B misdemeanor, for having sexual contact with Rachel but stated that the matter was on appeal to circuit court. He further admitted that he had lied at the criminal proceeding, and in his deposition as well, about not having sex with Rachel. Sue Laneer, a psychotherapist, testified on behalf of Croom and stated that he was experiencing an adjustment disorder at the time of his relationship with Rachel and that this affected his ability to cope and make judgments. This condition, according to Laneer, caused him to “rationalize” his relationship with Rachel on the basis that she was intelligent and mature for her age.
The jury found for Younts on the tort of outrage and awarded her $15,286.96 for Rachel’s medical expenses, $60,000 in compensatory damages, and $25,000 in punitive damages. Judgment was entered, and Croom filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial on the basis that the evidence for the tort of outrage was insufficient and that the trial court erroneously instructed the jury on negligent conduct. The motion was denied. Croom appealed, and Younts cross-appealed on the dismissal of her seduction claim. Younts abandoned her cross-appeal in her brief filed in this appeal.
For his first point on appeal, Croom argues that there was no substantial evidence to support Younts’s claim of outrage. He concedes that his conduct was wrong, but he vigorously contends that it did not meet the test of outrageous conduct. He specifically urges that he lacked the requisite intent to inflict emotional distress on Rachel.
To succeed on a claim of intentional infliction of emotional distress, or outrage, Younts had to prove these elements:
(1) that the actor intended to inflict emotional distress or wilfully and wantonly knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) that the actions of the defendant were the cause of her distress; and (4) that the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it.
Hunt v. Riley, 322 Ark. 453, 909 S.W.2d 329 (1995); Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995); Hollingsworth v. First Nat’l Bank and Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). What constitutes willful or wanton conduct for the tort of outrage is defined under Arkansas Model Instruction 404:
A person acts willfully and wantonly when he knows or should know in the light of surrounding circumstances that his conduct will naturally and probably result in emotional distress [and bodily harm] and continues such conduct in reckless disregard of the consequences.
What constitutes extreme and outrageous conduct is also defined under AMI 404:
By extreme and outrageous conduct, I mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.
The jury was instructed on both definitions at the trial of this matter.
In the case before us, Croom appeals based on insufficient evidence to support the judgment and lack of substantial evidence to support the trial court’s denial of a motion for a judgment notwithstanding the verdict and new trial. To determine whether sufficient evidence exists to support a judgment in tort-of-outrage cases, we assess whether the evidence is substantial and, in doing so, consider it in the light most favorable to the appellee. City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 154 (1994); Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). Whether there is substantial evidence to support the verdict is also the standard of review for the denial of a motion for a judgment notwithstanding the verdict and new trial. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988); Arkansas Power & Light v. Adcock, 281 Ark 104, 661 S.W.2d 392 (1983). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture. First Marine Ins. Co. v. Booth, 317 Ark. 91, 876 S.W.2d 255 (1994). On review of denial of a motion for new trial, this court gives the verdict the benefit of all reasonable inferences permissible in accordance with the proof. Gilbert v. Shine, 314 Ark. 486, 863 S.W.2d 314 (1993).
This court has repeatedly stated that we require clear-cut proof to establish the elements in tort-of-outrage cases. Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991); Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989); Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985); Tandy Corp. v. Bone, supra; Givens v. Henson, 275 Ark. 370, 631 S.W.2d 263 (1982). Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Harris v. Arkansas Book Co., supra; Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985). We have also stated that we take a strict approach and give a narrow view to the tort of outrage. See, e.g., City of Green Forest v. Morse, supra; Forrest City Mach. Works v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993); Deitsch v. Tillery, supra; Ross v. Patterson, supra; Tandy Corp. v. Bone, supra. Hence, in considering whether evidence is sufficient in tort-of-outrage cases, we must determine whether it is substantial in light of these standards.
The definition of the tort of outrage includes willful and wanton conduct which embraces activity in which a person knows or should know in light of surrounding circumstances that his actions will naturally and probably result in emotional distress. Thus, whether Croom specifically intended to inflict emotional distress on Rachel is not the sole test. We also consider whether he acted in such a fashion that he should have known under the circumstances that emotional distress to Rachel would be the result of what he did. Assuming that determination is made in favor of Younts, we must then assess whether Croom’s conduct was so extreme and outrageous that it exceeded all possible bounds of decency which renders it utterly intolerable in a civilized society.
We believe that there was substantial evidence that Croom should have known emotional distress to Rachel would occur because of his actions, but he acted in reckless disregard of that fact nonetheless. There is, first, the fact that Rachel was 15 at the time of her relationship with Croom, and Croom was 51. Secondly, Croom was a relative and close friend. The conclusion that his age and relationship exerted considerable influence over a minor girl is undeniable. According to Rachel, he used wine and medication to wear down her defenses in his home and forced sex upon her. He then relentlessly pursued Rachel, by his own admission, even to the point of causing an emotionally wrenching confrontation with Younts at her home which resulted in Rachel’s first suicide attempt. It was clear that Croom was fomenting a schism in the family relationship and forcing Rachel to break with her mother and side with him. Rachel described her state of mind at the time as “chaotic,” and suicide attempts followed. We have no doubt that Croom should have known the impact of his actions on Rachel but pursued his course of action in reckless disregard of the consequences to her. See Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984).
We next consider whether Croom’s actions were so outrageous and extreme as to meet the test of the tort of outrage. Certain facts in this case are undisputed — the age and relationship of Croom and Rachel, the fact that sexual relations occurred between the pair, the stark confrontation between Croom and Younts, Rachel’s suicide attempts, and her hospitalization. Where the rendition of events by Croom and Rachel diverges is over who was the catalyst for the sexual relationship and whether wine and medication were employed when they first had sex. Croom was never asked at trial whether he gave Rachel wine and Xanax, although he did admit that he was drinking alcoholic beverages on a daily basis and was taking Xanax himself. As we have already stated, in outrage cases to determine whether evidence is substantial we look to the evidence that supports the verdict and favors the appellee — in this case Younts. Rachel was adamant that Croom precipitated the relationship and that he used wine and medication to lower her defenses.
The facts of this case go beyond a mere sexual encounter but instead challenge basic social mores in our society. The use of wine and medication by a vastly older and more experienced relative to foist sex on a minor cousin in his home offends all sense of decency as it is commonly understood and cannot be tolerated. We have no hesitancy in holding that these facts meet the test for substantial evidence even under the restrictive standards which we use in tort-of-outrage cases.
For his second point, Younts maintains that the Arkansas Model Instruction 2217 on punitive damages given to the jury was error. The instruction given reads as follows:
In addition to compensatory damages for any actual loss that plaintiffs may have sustained, they ask for punitive damages from the defendant. Punitive damages may be imposed to punish a wrongdoer and to deter others from similar conduct. In order to recover punitive damages from the defendant, the plaintiffs have the burden of proving either:
First, that the defendant knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally and probably result in damage and that he continued such conduct in reckless disregard of the consequences from which malice may be inferred; or
Second, that defendant intentionally pursued a course of conduct for the purpose of causing damages, or both.
You are not required to assess punitive damages against the defendant, but you may do so if justified by the evidence.
Croom’s basic contention is that the first prong of this instruction relates solely to negligence cases and that the tort of outrage is an intentional tort. Thus, he argues, the circuit court erred in giving an instruction which included the first prong. He cites Tandy Corp. v. Bone, supra, and Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), in support of his argument. AMI 2217 was revised after the Tandy Corp. and Ford Motor Credit Co. decisions to include the second paragraph relating to intentional course of conduct. See AMI Civil 2d 2217 (1974 and Supp. 1986).
We give this issue little credence. The instruction is clearly couched in the alternative, and the jury could readily have discerned that the tort of outrage is an intentional tort and that the second paragraph of the instruction applied. No error was committed by giving AMI 2217 in its entirety.
Affirmed. | [
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Tom Glaze, Justice.
Appellant Foxsmith, Inc., an Arkansas corporation operating a restaurant known as East End Cafe, sued appellee Coca-Cola Bottling Co. of Northeast Arkansas and other defendants/appellees, doing business as licensed distributors, selling soft drinks to Arkansas retailers. Foxsmith alleged that, as a retailer that purchased soft drinks, it had been unlawfully subjected to the Arkansas Soft Drink Act, Ark. Code Ann. §§ 26-57-901—909 (Supp. 1993). Specifically, Foxsmith references § 26-57-904(b)(2), which in relevant part provides that a retailer shall not be subject to this tax, if the retailer purchases soft drinks from a supplier licensed under § 26-57-909. Under § 26-57-909(a), a licensed supplier includes distributors, wholesalers, or manufacturers of soft drinks located within or without Arkansas, who are licensed by the Director of the Department of Finance and Administration (DFA), and sells soft drinks to retailers in the state. Coca-Cola Bottling is such a licensed distributor.
Foxsmith’s primary argument, both below and now on appeal, is that Foxsmith was unlawfully made subject to the tax when Coca-Cola Bottling submitted its invoice for Foxsmith’s soft-drink purchases and the invoice included an itemized or sep arate charge labeled, “Drink Excise Tax . . . $20.00.” Coca-Cola Bottling filed a motion for summary judgment below, stating that such a separate itemization of the tax did not make Fox-smith “subject to” the soft-drink tax, and therefore Foxsmith’s complaint should be dismissed with prejudice. The trial court granted the summary judgment motion, and because we find no merit to Foxsmith’s argument, we affirm.
Section 26-57-906(a)(l) of the Soft Drink Act provides effectively that the tax shall be paid by the licensed distributor when the soft drink is sold, and under § 26-57-906(b), the distributor shall file a monthly return and remit the tax for the month to the DFA director on or before the fifteenth day of the month following the sale. In addition, the Act nowhere prohibits the soft-drink tax from being passed on to retailers like Fox-smith. In fact, DFA’s regulations authorize licensed distributors to pass the tax on to the retailer. In its argument, Foxsmith even concedes the Act allows the tax to be passed on to the retailer. See Soft Drink Tax Regulation — 1993-8 C. 2. Accordingly, by memorandum DFA informed all Arkansas licensed soft-drink distributors that, as the parties or sellers responsible for collecting the tax, they had the option of (1) including the tax in the cost of the product or (2) separately stating the tax on the invoice or document of sale. (Emphasis added.) Foxsmith seems only to take issue with this separate listing of the tax on the sale invoice, but Foxsmith is unclear as to how such an itemization makes it unlawfully “subject to” the tax under the Act. On the other hand, the DFA has made it fundamentally clear that it interprets the Act to permit distributors to pass on the tax by showing it separately on sale invoices, and that Agency’s construction of the Act shall not be overturned unless it is clearly wrong. Douglass v. Dynamic Enter., Inc., 315 Ark. 575, 869 S.W.2d 14 (1994).
We agree with Coca-Cola Bottling’s construction of the Act that being “subject to” the tax means the one who must file a monthly return and remit the tax to the state. In addition, Foxsmith simply fails to demonstrate that any material issue of fact exists, nor does it offer any sound or convincing legal argument that DFA’s regulation and interpretation of the Soft Drink Act is wrong. Because the Act and DFA’s regulations authorize licensed distributors, like Coca-Cola Bottling, to pass the soft- drink tax on to retailers and to list the cost of the tax as a separate item on sales invoices, we reject Foxsmith’s argument and affirm the trial court’s dismissal of Foxsmith’s complaint.
For simplicity, Coca-Cola Bottling will be named in this opinion, but it is representative of all other defendants/appellees since they are all similarly situated as to the issue raised and argued in the matter. | [
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Donald L. Corbin, Justice.
Appellant, Eric Randall Nance, appeals the amended judgment of the Hot Spring County Circuit Court entered on April 11, 1994, convicting him of one count of capital murder. See Nance v. State, 319 Ark. 292, 891 S.W.2d 28 (1995) (per curiam) (granting motion for rule on the clerk and finding timely notice of appeal from amended judgment); Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994) (per curiam) (denying motion for rule on the clerk). Appellant was tried by a jury and sentenced to death by lethal injection. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant raises ten points for reversal. We find no error and affirm the trial court’s judgment.
Appellant was charged by information, as amended, with capital murder by premeditated and deliberated purpose, Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1993), or, in the alternative, with capital murder by felony murder, Ark. Code Ann. § 5-10-101(a)(1) (Repl. 1993). The underlying felonies charged were rape, attempted rape, kidnapping, and attempted kidnapping. The sole underlying felony with respect to which the jury was instructed, however, was attempted rape. The jury returned a verdict of guilty of capital felony murder.
The charges arose from the following events. On October 11, 1993, the vehicle of the victim, Julie Heath, was reported abandoned on Highway 270, west of Malvern near Interstate 30. On October 18, 1993, the victim’s body was discovered on rural property just south of Highway 171 approximately 7.5 miles from the location where the victim’s vehicle was found. The medical examiner, Dr. Frank Peretti, testified that it was likely that there was trauma to the skull and neck region of the victim’s body, based on the accelerated skeletonization and evidence of insect activity in that area as compared with the relatively intact remainder of the body. Although the autopsy failed to reveal the cause or manner of death, Dr. Peretti could not rule out death by knife wound and testified that examination of the victim’s shirt showed defects consistent with a cutting wound.
At trial, appellant’s brother, Vernon Nance, and appellant’s sister, Belinda Christopher, testified that, after initially denying any involvement in the crime, appellant later stated that he had accidentally killed the victim. Vernon Nance testified that appellant stated that he gave the victim a ride into Malvern because her automobile had broken down on the road, that the victim saw his work knife slide out of his pocket as they drove, that the victim asked him to put the knife away, that, as he moved to put the knife in the glove compartment, the victim turned sideways in the seat and started kicking him, that he put his hand up to keep her from kicking and hitting him, and that the knife fatally lodged in her throat. Appellant made a similar statement to his sister.
Throughout his brief, appellant asserts the denial of his constitutional rights by means of merely conclusory allegations without supporting authority. In such circumstances, we decline to consider his constitutional arguments. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995).
1. Motion for directed verdict
We first consider appellant’s argument that the trial court erred in denying his motion for a directed verdict on the ground that insufficient proof was introduced of the underlying felony, attempted rape. Our standard of review is as follows:
In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction.
Pike v. State, 323 Ark. 56, 60, 912 S.W.2d 431, 433-4 (1996) (citations omitted) (quoting Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995)). Circumstantial evidence constitutes substantial evidence when every other reasonable hypothesis consis tent with innocence is excluded. Id.
We find that the circumstantial evidence of attempted rape is substantial. Some of this evidence includes:
(1) Opinion testimony of criminalist Donald E. Smith that blood, head and pubic hairs recovered from appellant’s vehicle belonged to the victim, and that hairs recovered from the victim’s clothing belonged to appellant;
(2) Opinion testimony of forensic serologist Kermit Channell that, based on his tests, he could neither confirm nor deny that sexual intercourse had occurred, that the exposure of the victim’s body to the weather could account for lack of some evidence, and that enzyme-characteristic analysis showed blood recovered from appellant’s vehicle was consistent with the victim;
(3) Opinion testimony of forensic scientist Richard Guererri that DNA analysis of the victim’s muscle tissue was consistent with blood recovered from appellant’s truck seat and from the victim’s shirt pad;
(4) Testimony of Dr. Peretti that the victim’s brassiere was pulled up around the neck and shoulder area, her socks and panties were inside out, her pants were partially zipped, and her shirt was inside out;
(5) Testimonies of two workers at a convenience store located in Malvern near the interstate, Tina Loy and Christy Sims, that appellant entered the store at approximately 12:30 a.m. on October 12, 1993, appeared to be hot and was wearing bib overalls with dark stains on the front that appeared fresh, and wore no shirt, shoes or socks;
(6) Testimony of appellant’s girlfriend, Christy Jones, that appellant left her house in Hot Springs at approximately 9:30 p.m. on October 11, 1993, wearing overalls and a tee shirt; and
(7) Testimony of Sheriffs Officer Kirk McClenahan that the victim’s body was discovered with the shirt turned inside out with one shoulder pad on the outside.
2. Record of probable-cause proceeding
On October 22, 1993, the state filed a motion to determine whether probable cause existed to charge appellant with the crime. The motion recites that appellant was arrested for the crime by the Hot Spring County Sheriffs Department on October 20, 1993, had been in the sheriff’s custody since arrest, and that “probable cause time” would expire on October 22, 1993, unless probable cause to charge was found.
Arkansas Rule of Criminal Procedure 4.1(e) provides that a person arrested without a warrant shall not be held in custody unless a judicial officer determines from an affidavit, recorded testimony, or other information, that there is reasonable cause to believe that the person committed an offense. Rule 4.1(e) further provides that the judicial determination shall be made within forty-eight hours of the time of arrest, except in extraordinary circumstances, and may be made at the first appearance of the arrested person pursuant to Ark. R. Crim. P. 8.1. See also Ark. R. Crim. P. 8.3(c). These rules protect the federal constitutional right of a person to a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Gerstein v. Pugh, 420 U.S. 103 (1975). At this preliminary stage, the state is required to present proof that justifies the accused’s arrest, not to establish the accused’s guilt.
In this case, the circuit court docket for October 22, 1993, states:
Informal probable cause hearing — Based on affidavit probable cause for charge of capital murder found — Bond set at $1,000,000.00 — P. Lemons appointed — Hearing set for October for plea and arraignment —
On October 22, 1993, the state filed the “Information With Affidavit” charging appellant with the victim’s capital murder, together with the supporting “Affidavit And Statement Of Probable Cause” of Lieutenant Doug Williams of the Arkansas State Police. Lieutenant Williams’s affidavit, dated October 22, 1993, recites that it is made for the purpose of obtaining an arrest warrant for appellant and charging him with the crime. A bench warrant for appellant was issued, served and filed on October 22, 1993.
Appellant argues that the trial court erred in denying his request that a “record” be made of the probable-cause proceeding, and that, as an indigent, the federal constitutional due-process guarantee absolutely entitled him to a “record.” We understand this argument to be a request for a verbatim transcription of the probable-cause proceeding. This argument is meritless.
Our Rule 4.1(e) provided that the judicial determination of probable cause at the October 22 proceeding could be made from affidavit, recorded testimony, or other information. The state chose the affidavit method. Lieutenant Williams’s October 22 affidavit, which was the basis for the judicial determination of probable cause, and the bench warrant are a part of the record on appeal. On these facts, we determine that appellant was not constitutionally entitled to a verbatim transcription of the probable-cause proceeding. Lieutenant Williams’s October 22 affidavit and the bench warrant, which are included in the record on appeal, satisfied appellant’s constitutional requirements to due process at this most preliminary stage of the criminal proceedings.
3(A). Demurrer
At the October 26, 1993 hearing for plea and arraignment, appellant demurred to the felony information on the ground that it failed “to state probable cause.” The trial court stated that the demurrer was effectively a motion to dismiss, summarily denied the demurrer because probable cause had previously been found, and entered a plea of not guilty. Appellant next argues that the denial of the demurrer was error. This argument is without merit. Lack of probable cause is not a statutory ground for a demurrer to an indictment, Ark. Code Ann. § 16-85-708 (1987), or, by implication, to an information. Cf. Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994) (applying statute governing amendment of indictment, by implication, to amendment of a felony information).
3(B). Motion to quash felony information
On October 27, 1993, appellant filed a motion to quash the felony information for lack of probable cause to arrest or charge him with the crime. The trial court summarily denied the motion. Appellant next argues that the ruling was error. We disagree.
Lack of probable cause is not a statutory ground for a motion to set aside an indictment, Ark. Code Ann. § 16-85-706 (1987), McDonald v. State, 155 Ark. 142, 244 S.W. 20 (1922), State v. Fox, 122 Ark. 197, 182 S.W. 906 (1916), or, by implication, to quash an information, Neely, 317 Ark. 312, 877 S.W.2d 589.
Further, in State v. Garrison, 272 Ark. 470, 615 S.W.2d 371 (1981), this court held that the circuit court lacked authority to conduct a preliminary hearing, pending trial, to determine if probable cause existed to justify the charge brought by information and then to dismiss the information for want of probable cause. The Garrison court stated there was no constitutional or statutory authority for such a hearing, which it distinguished from the situation where the court must determine whether probable cause exists for extended restraint of an accused following an arrest. Gerstein, 420 U.S. 103; see also Ark. R. Crim. P. 8.3. In Garrison, as in the present case, the latter situation was not involved because the charge against the accused had already been filed in the circuit court and the issue of his pretrial detention had been judicially determined. See also State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991) (stating it was error for the circuit court to grant the accused’s motion to dismiss the information on the ground that the state’s proffered facts did not sustain the charge); accord State v. Jamison, 211 Ark. 349, 641 S.W.2d 719 (1982).
An accused is not entitled to a judicial review of the prosecutor’s filing an information charging him with an offense. Garrison, 212 Ark. 470, 615 S.W.2d 371. See also Gerstein, 420 U.S. at 118-19 (“In holding that the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute.”). In light of our determination that it was not error to summarily deny appellant’s motion to quash for lack of probable cause, we need not address the merits of his argument in support of the motion.
4. Motion to suppress
On March 29, 1994, the first day of trial, appellant filed a motion to suppress evidence obtained by a search of his truck on October 29, 1993. An evidentiary hearing was held outside the jury’s presence. The evidence showed that the search was conducted with the written consent of Vernon Nance, who had possession of the truck on October 20, 1993, and delivered it to the Hot Spring County Sheriffs Office for that purpose. The evidence also showed that the search was conducted pursuant to a search warrant issued on October 29, 1993. The trial court denied the motion and ruled the evidence admissible if relevant. Hair and blood samples recovered in the search were subsequently admitted for identification and expert testimony received at trial.
Appellant next argues that no probable cause existed for the search. We disagree. In reviewing the trial court’s ruling on the motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992). It is not necessary that sufficient information for a conviction be available when the search warrant is obtained, only that there is probable cause to believe that the place to be searched contains evidence of the crime. Johnson v. State, 270 Ark. 247, 604 S.W.2d 927 (1980), cert. denied, 450 U.S. 981 (1981). We have no doubt that such probable cause existed here.
The search warrant, issued on October 29, 1993, was based on Lt. Williams’s affidavit of the same date. Lt. Williams averred that the victim was reported missing since the evening of October 11, 1993, by her mother to the Malvern Police Department; that the victim’s vehicle was found abandoned on Highway 270, west of Malvern and approximately three miles west of Interstate 30 on the evening of October 11, 1993; that the victim’s body was discovered on October 18, 1993, on property just south of Highway 171, approximately 7.5 miles from the location where the victim’s vehicle was found; that the medical examiner estimated the time of the victim’s death to be between midnight and 1:15 a.m. on October 12, 1993; that the state police received a call on October 20, 1993, that appellant volun tarily committed himself to the Arkansas State Hospital, apparently distressed due to some incident in which he may have been involved; that appellant was incarcerated for eleven years in Oklahoma for rape and sodomy and was released on May 8, 1993; that appellant drove a truck; that, at approximately 9:00 p.m. on October 11, 1993, Rebecca Doyle observed a truck behind a car in the area where the victim’s vehicle was found; that appellant’s girlfriend, Christy Jones, stated that appellant left her home in Hot Springs in his truck headed for Malvern on October 11, 1993, between 9:00 and 9:30 p.m.; that, on October 12, 1993, shortly after midnight, two employees of a convenience store near Highway 270 and Interstate 30 were told by appellant that his truck had broken down and that he had run to the store; that appellant immediately went to the bathroom in the convenience store and came out drying his hands; that appellant called his mother and brother on October 12, 1993, shortly after midnight, to help him fix a flat on his truck, which was located on Highway 171 approximately 1.1 miles from the place where the victim’s body was found; that Ms. Jones stated appellant washed his truck and shampooed its interior on October 12, 1993, and appeared depressed; and that appellant’s minister reported that appellant told him, on October 14, 1993, that he feared facing a fabricated charge involving “the girl missing in Malvern.”
Appellant next argues, without citation to authority, that the search warrant was invalid because the application for the search warrant was dated October 21, 1993, eight days prior to the date of Lt. Williams’s affidavit in support of the search warrant application and the search warrant. At the hearing on the motion to suppress, Lt. Williams testified that the date on the application was an error and that he recalled that, on October 29, 1993, he appeared before the circuit court judge, made his affidavit, and the search warrant was granted. The trial court stated that the testimony revealed an apparent misprision in the documents, and then ruled that the warrant was properly issued. On this record, no error is demonstrated.
Appellant next argues that the search was invalid because Vernon Nance had no standing to consent to the search of appellant’s truck. We need not address this argument in light of our determination that the search was proper pursuant to warrant.
5. Photographs
Appellant next argues that three photographs taken at the crime scene were admitted in error because they are gruesome, inflammatory photographs of the victim’s body that were not necessary to help the witnesses depict the crime scene. Although appellant failed to abstract these photographs, we have reviewed them and consider his argument, as required by Ark. Sup. Ct. R. 4-3(h). Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). We find appellant’s contention is without merit.
Specifically, appellant challenged the admission of State’s Exhibits 5, 6 and 8. State’s Exhibits 5 and 8 were admitted when Herbert Chandler, Jr. testified that they showed the body that he found near his property off Highway 171. State’s Exhibit 5 is taken from the road and depicts the wooded crime scene and the victim’s body, which is identifiable from that distance only as a dark form resting in the underbrush. State’s Exhibit 8 depicts the victim’s body, as it was discovered, from a closer view and clearly reveals the decomposing upper torso and partially skeletonized head. Appellant objected that these photographs were irrelevant and admitted solely to inflame the jury. The trial court ruled that the photographs were admissible because they accurately depict the crime scene, the position of the body, the clothing on the body and other items probative of the state’s case.
State’s Exhibit 6 was admitted when Arkansas State Police Officer Charles Hefner testified that it depicted some of the victim’s hair that was found at the crime scene between the victim’s body and the road, and that the hair was taken by the medical examiner’s investigator. State’s Exhibit 6 is a closeup view of two clumps of hair in the underbrush, but does not depict the victim’s body. Appellant objected that this photograph lacked probative value and was cumulative of State’s Exhibit 8. The trial court ruled that State’s Exhibit 6 was admissible because there was a substantial difference in its depiction of the crime scene.
Of these three photographs, we find only State’s Exhibit 8 is gruesome. However, even gruesome photographs are admissible within the trial court’s discretion if they help the jury understand the accompanying testimony. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). In this case, we conclude that State’s Exhibit 8 helped the jury understand Mr. Chandler’s testimony of the crime scene and, for the reasons enumerated by the trial court, otherwise possessed probative value. Thus, although the photograph was gruesome, we find no abuse of discretion in admitting it.
Appellant next argues that it was error to permit Dr. Frank Peretti, the medical examiner who autopsied the victim, to be examined with respect to an autopsy photograph, marked for identification as State’s Exhibit 29, which was not admitted into evidence. The trial court permitted the state to show the photograph to Dr. Peretti and ask him if the condition of the victim’s shoulder area was consistent with a cutting wound. Appellant contends that he was prejudiced because the jury was impermissibly permitted to speculate as to the content of the photograph. This contention is without merit. At trial, appellant objected only to the admission of State’s Exhibit 29 into evidence. That objection was sustained by the trial court. The photograph was not shown to the jury. On this record, we find no prejudice demonstrated.
6. Motion to quash amended felony informations
The original felony information filed by the state on October 22, 1993, charged appellant with capital murder by premeditated and deliberated purpose. Section 5-10-101 (a)(4). The information was amended three times: first, on March 18, 1994, to charge appellant with capital murder by felony murder, section 5-10-101(a)(l); second, on March 21, 1994, to charge appellant with capital murder by premeditated and deliberated purpose, or, in the alternative, by felony murder; and, third, on March 23, 1994, to charge appellant, as an habitual offender, with capital murder by premeditated and deliberated purpose, or, in the alternative, by felony murder.
On March 28, 1994, appellant filed a motion to quash all felony informations filed against him. On March 29, 1994, prior to the commencement of trial, the trial court conducted a hearing wherein several motions were heard, including appellant’s motion to quash the felony informations, and denied the motion.
Appellant next argues that the amended informations violated Ark. Code Ann. § 16-85-407(b) (1987), which forbids amendment of an indictment or bill of particulars so as to change the nature of the crime charged. This argument is without merit. We have recently ruled that pretrial amendment of an information that charged capital murder on the basis of felony murder to add, as an alternative, the charge of capital murder on the basis of premeditated and deliberated purpose, does not change the nature of the crime charged in violation of section 16-85-407(b). Rucker, 320 Ark. 643, 899 S.W.2d 447. We have also held that amendment of an information that adds an allegation of habitual offender does not change the nature or degree of the crime. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994).
Appellant next argues that “the affidavit legally required to accompany the amended information sufficient for the issuance of a new arrest warrant on the new charge was never filed.” We have held that Arkansas Code Annotated 16-85-302 (1987) does not require that an information be accompanied by an affidavit. Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994). Appellant cites no authority to support his argument, thus there is no reason to address it further. Id.
Appellant next argues that there was no judicial review or leave of the trial court to amend the information, nor did the state file a bill of particulars as required by Ark. Code Ann. § 16-85-407(a) (1987). This argument is without merit. Section 16-85-407(a) provides that the state, with leave of court, may amend an indictment as to matters of form or may file a bill of particulars. We have held that an information that stated the accused was charged with murder committed in the course of kidnapping constituted a specific charge that was in itself a bill of particulars. Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982); see also Perkins v. State, 217 Ark. 252, 230 S.W.2d 1 (1950) (stating that an information may be sufficiently specific that a bill of particulars is not required). Applying that standard to the facts of the present case, we find that the information, as amended, was in itself a bill of particulars. The third amended information read:
I, DAN HARMON, PROSECUTING ATTORNEY WITHIN AND FOR THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF ARKANSAS, of which Hot Spring County is a part, in the name and by the authority of the State of Arkansas, do hereby amend the information and charge ERIC RANDALL NANCE with the crime of CAPITAL MURDER, A.C.A. 5-10-101, and Habitual Offender A.C.A. 5-4-501 committed as follows, to wit:
The said defendant, Eric Randall Nance, on or about the 11th day of October, 1993 in Hot Spring County, Arkansas did commit or attempt to commit rape and/or kidnapping and in the course of and in furtherance of the felony, or in the immediate flight therefrom, he caused the death of Julie Heath under circumstances manifesting extreme indifference to the value of human life or with the premeditated and deliberated purpose of causing the death of Julie Heath, he caused the death of Julie Heath, against the peace and dignity of the State of Arkansas.
The State of Arkansas also alleges that Eric Randall Nance is an Habitual Offender, A.C.A. 5-4-501, in that he has been found guilty of, or plead guilty to, four or more felonies, against the peace and dignity of the State of Arkansas.
On this record, as a result of the state’s filing of a sufficiently specific amended information, appellant demonstrates no prejudice.
Appellant next argues that it was error to deny his motion to quash the amended informations because, pursuant to Ark. Code Ann. § 16-85-410 (1987), a subsequent indictment suspends the prior indictment and quashes it. This argument is without merit. This court has previously considered section 16-85-410, as formerly codified at Ark. Stat. Ann. 43-1031, and stated that it “simply declares the effect of the pendency of another prosecution.” State v. Dimler, 251 Ark. 753, 756, 475 S.W.2d 152, 154 (1972) (quoting State v. Barkman, 7 Ark. 387, 388 (1846)). Section 16-85-410 is, therefore, inapplicable on the facts of this case, which involves a single prosecution. Cf. Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979), cert. denied, 447 U.S. 923 (1980) (holding the trial court erred by failing to quash two prior jury indictments, pursuant to Ark. Stat. Ann. § 43-1031, thereby forcing the accused to trial on a twenty-two count information that was identical to the pending grand jury indictments).
7. Rearraignment
Appellant next argues that the trial court erred in failing to arraign him and take his plea on the amended informations, in violation of Ark. Code Ann. §§ 16-85-701 and -702 (1987). Arraignment is defined as the reading of the indictment by the clerk to the defendant and asking him if he pleads guilty or not guilty to the charge. Section 16-85-701. Appellant does not contend that he would have changed his not-guilty plea had he been rearraigned on each amended information, nor does the record demonstrate that he was unaware of the nature and degree of the charge brought against him by the information, as amended. Therefore, we do not address this argument on appeal because the record fails to show that appellant raised it before the trial court or that prejudice is conclusively shown. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995).
8. Jury instruction
Appellant next argues that the trial court erred in instructing the jury that to sustain the charge of capital murder, the state must prove the elements of felony murder or of murder with premeditated and deliberated purpose. Appellant contends that the reading of the instruction in the disjunctive rendered it bad for uncertainty. This argument is without merit. This court has stated that:
[W]here but one offense is charged but the several modes provided by the statute by which it may be committed are charged in the disjunctive, the indictment is good. The reason is that the charge is based upon one offense, and the different modes of committing it provided in the statute are based upon the same transaction. . . .
In other words, the State in proving the offense might show that it was done [by either or both of the several modes charged] .... In either event it related to the same transaction and constituted but one offense.
Kirkpatrick v. State, 177 Ark. 1124, 1127, 9 S.W.2d 574, 575 (1928) (citation omitted). This reasoning is equally applicable to appellant’s objection to the form of the jury instruction on the alternative modes of committing capital murder. Section 5-10-101(a)(1) and (a)(4).
Appellant next argues that it was error to instruct the jury on both the premeditated and deliberated mode and the felony-murder mode of committing capital murder because, pursuant to section 16-85-410, the original information charging him with capital murder by premeditated and deliberated purpose, was suspended and quashed by the first amended information, which charged him with capital murder by felony murder, and, therefore, he was never charged with the crime for which he was convicted. This argument, which is based upon a premise that we determined to be erroneous in our discussion of point 6 above, is patently meritless.
Appellant next argues, without citation to authority, that it was error to instruct the jury as to capital murder by premeditated and deliberated purpose because there was insufficient evidence to support the instruction. Because the jury verdict states that appellant was found guilty of capital felony murder, appellant cannot demonstrate that the premeditated and deliberated purpose instruction prejudiced him. Therefore, we need not consider this argument further.
9. Bill of particulars
On March 23, 1994, appellant filed a demand for bill of particulars and specific disclosure. Appellant requested disclo-. sure of the state’s evidence of the underlying felonies charged, rape, attempted rape, kidnapping, and attempted kidnapping, including the names and addresses of prospective witnesses, written reports or statements of witnesses and experts, and the legal basis for the underlying-felony charge. On March 29, 1994, prior to the commencement of the trial on that date, the trial court heard and denied appellant’s demand for bill of particulars on the basis that appellant had been furnished all the information that the rules of discovery required.
Appellant next argues that the trial court erred in denying his demand for bill of particulars, which, he contends in a conclusory fashion, prejudiced his ability to prepare an effective defense. This argument is without merit.
The true function of the bill of particulars is to require the state to set forth the criminal act in detail and with sufficient certainty to apprise the defendant of the crime and enable him to prepare his defense. Edens v. State, 235 Ark. 996, 363 S.W.2d 923 (1963); Ark. Code Ann. § 16-85-301 (a) (1987). As we stated above, where the information is definite in specifying the offense being charged, as in this case, the charge itself constitutes a bill of particulars. Harmon, 277 Ark. 265, 641 S.W.2d 21. Further, even where no bill of particulars is filed, there is no prejudice to the accused on that account when the state complies with its discovery obligation. Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978). Appellant raises no argument on appeal that the state violated its discovery obligation under our rules of criminal procedure.
10. Motion to set aside judgment
On April 11, 1994, appellant filed a post-trial motion to set aside the original judgment filed on March 31, 1994. Appellant’s motion contended that the judgment was inconsistent with the jury verdict, which found appellant guilty of capital felony murder, because the trial court struck through the word “felony” on the face of the judgment so that, as edited, it pronounced appellant to be guilty of capital murder. Following a hearing on the motion to set aside the judgment, the trial court entered an amended judgment on April 11, 1994, that inserted the word “felony” in the amended judgment’s recitation of the jury verdict and the pronouncement of guilt. Appellant renews his argument on appeal.
We find no prejudice is demonstrated. The criminal statute under which appellant was charged and convicted denominates his crime as “capital murder,” felony murder being one of the several modes by which the crime may be committed. Section 5-10-101. Thus, the trial court’s action was not inconsistent with appellant’s conviction for the crime of capital murder, pursuant to the jury verdict, and did not modify the sentence imposed.
Citing Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984), appellant also contends that the trial court lacked jurisdiction to modify the judgment because he was placed in the custody of the Arkansas Department of Correction on March 31, 1994, to commence serving his sentence. This argument is merit-less. In Glick, this court held the trial court was without jurisdiction to modify the sentence after the appellant commence to serve the sentence. In the present case, however, the trial court did not modify appellant’s sentence. We have held that, after a notice of appeal is docketed and the record is filed in this court, the trial court loses jurisdiction, except for appointment of defense counsel. Richie v. State, 298 Ark. 358, 767 S.W.2d 522 (1989). In this case, the latter of those two events occurred in October 1994, when the record was filed in this court.
Conclusion
Here, the jury unanimously found two aggravating circumstances existed beyond a reasonable doubt at the time of the commission of the capital murder, and no mitigating circumstances. We conclude that no erroneous finding of any aggravating circumstance with respect to the death penalty was found, and, therefore, we do not conduct a harmless-error review under Ark. Code Ann. § 5-4-603(d) (Repl. 1993). Further, in accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for prejudicial errors objected to by appellant but not argued on appeal, and no such errors were found.
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Robert H. Dudley, Justice.
Appellant was arrested and issued citations for driving while intoxicated, improper lane change, and violation of the implied-consent law. The citations were filed as three separate cases in the Municipal Court of Bentonville. Appellant pleaded not guilty to all three charges, but subsequently appeared, and a judgment of conviction was entered on the court’s docket by use of a rubber stamp and with the blanks filled in, which reflects that appellant entered a plea of guilty to the DWI charge. The municipal court docket sheet does not show that he entered guilty pleas on either of the other charges, or that he was tried for either of them. It reflects that they were “merged.” Appellant filed a notice of appeal to the circuit court, which appealed only the DWI case.
Over appellant’s objection, the circuit court ruled that appellant would be tried de novo on all three charges. A jury found appellant not guilty of improper lane change and guilty of violation of the implied-consent law, but was unable to reach a verdict on the DWI charge. Appellant appeals from the conviction in circuit court of violation of the implied-consent law. We affirm.
Appellant raises four points of appeal, but, in oral argument before this court, acknowledged that Cook v. State, 321 Ark. 649, 907 S.W.2d 672 (1995), recently decided three of the points. As a result, we do not discuss those three points.
In his remaining point of appeal, appellant contends that the procedure in circuit court, which forced him to stand trial for violation of the implied-consent law, violated the Double Jeopardy Clause. We affirm on this point because the record neither shows that appellant was threatened with multiple punishments for violation of the implied-consent law nor shows that there was a threat of successive prosecutions on the charge. See State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992). The record does not show that appellant was either convicted or acquitted of this charge in municipal court. It only shows that he pleaded not guilty and the charge was “merged.”
The record does not show how the term “merged” was used in municipal court, and we will not speculate about its use. The term is ordinarily used when lesser-included offenses are merged into greater offenses. See Ark. Code Ann. § 5-1-110 (Repl. 1993); and see, e.g., Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992); Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). However, in this case, violation of the implied-consent law was not a lesser offense included in driving while intoxicated, and the offense of driving while intoxicated is not a lesser-included offense of violation of the implied-consent law, and they are not based on the same conduct. Driving while intoxicated is operating or being in actual physical control of a motor vehicle while intoxicated or while having one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood. Ark. Code Ann. § 5-65-103 (Repl. 1993). Any person who operates a motor vehicle is deemed to have consented to having his blood, breath, or urine tested for alcohol or controlled substances if the driver is arrested for driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood, or other provisions not applicable to this case. Ark. Code Ann. § 5-65-202 (Repl. 1993).
From the above it can be seen that driving while intoxicated and violation of the implied-consent law are not the same offenses, one is not a lesser-included offense of the other, and they would not be “merged” in the ordinary use of the word. In short, the record does not reflect that the Double Jeopardy Clause was violated.
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Tom Glaze, Justice.
Appellant Everette Lee Frazier was charged with the capital murder of his estranged wife, Wynona, and attempted capital murder of Bobby Jones. Wynona and Jones were in Wynona’s house sitting at the kitchen table in the early hours of October 18, 1992, when they heard a noise outside. While it was disputed at trial how Everette entered the house through a window, it is clear he and Jones scuffled, and during the following course of events, Wynona was shot to death, and Jones was shot in the arm and neck. Everette was convicted of capital murder and attempted first-degree murder and given respective consecutive sentences of life imprisonment without parole and thirty years imprisonment. Everette’s points for reversal are that the trial judge erred (1) in admitting into evidence transcribed, pretrial statements Jones had given defense counsel and (2) in failing to grant Everette’s motion for mistrial wherein he claimed the prosecutor’s cross-examination of him at trial violated his due process right by drawing attention to Everette’s silence at the time of his arrest. We find no merit in these arguments.
Everette’s first argument turns on Jones’s statements given to officers when they investigated the shootings and his taped statements given to defense counsel several weeks before trial. At trial, the state called Jones as its witness, and Jones described that, on the morning of October 18, 1992, Everette broke a window with a two-by-four board, and bearing a pistol, he climbed through the window into the house, shot Jones twice, and after shoving Wynona into a chair, shot her in the face, killing her. Jones said that Everette came towards him again, and Jones kicked him in the head, after which Everette left the premises, got in his car and drove away.
Upon cross-examination, defense counsel attempted to attack Jones’s credibility in numerous ways. First, defense counsel asked questions of Jones in an effort to show Jones had an ongoing affair with Wynona dating at least back to 1991 when Everette and Wynona were initially estranged and Everette had filed for divorce. Counsel further questioned Jones, suggesting that Jones had increased the amount of time he spent with Wynona in 1992 when Everette and Wynona were again estranged, but not divorced. Jones denied having any affair with Wynona and claimed he would not do so until she was divorced. He did admit that he went by her house once or twice during a week after he got off work at 4:00 a.m., but only went in when a light was on.
In continuing cross-examination, defense counsel utilized prior statements Jones had given to detectives and asked Jones to explain their inconsistencies with Jones’s trial testimony. For example, counsel showed Jones gave earlier statements to detectives, reflecting that Jones was not sure what Everette used to break out the window, that he could not see anything when Everette gained access into the house and went over to Wynona, and that he could not remember if he told detectives that Everette pointed a gun.
In Everette’s case-in-chief, counsel called Jones as a witness, and questioned him in an effort to show Jones was having an affair with Wynona and to show Jones’s account of what occurred on October 18, 1992 was conflicting and unclear. Counsel further questioned Jones’s earlier testimony as the state’s witness by again pointing out purported inconsistencies indicating Jones was uncertain as to how Everette gained entrance through the window, what kind and size of gun Everette possessed, how Wynona got in the chair in which she was shot, and whether he was sure Wynona was shot while sitting in the chair. Counsel attempted to question other details, but his foregoing questions are sufficient to show he thoroughly took issue with Jones’s trial testimony by utilizing and seizing upon any inconsistency and failure in recollection that surfaced in Jones’s story.
At the end of defense counsel’s examination of Jones, the state proceeded in its questioning of him in an attempt to rehabilitate him. After briskly examining Jones over many of the points defense counsel covered on direct, the state offered to introduce the taped and transcribed statement that Jones had given defense counsel several weeks prior to trial. Defense counsel’s objection to Jones’s statement, the state’s response and court’s ruling were as follows:
Defense counsel: Your Honor this is the State’s way of getting around hearsay. This is not a sworn statement. It is used solely for impeachment purposes, and they are not to be considered as evidence.
Court: And I can do that, give that instruction if you wish.
Defense counsel: Your Honor, I object to the introduction of this.
State: The State would say that this is not hearsay, A.R.E. 801 (d)(l)(ii). This is a statement that is consistent with his testimony.
Court: It seems like the issue is when they cross-examine someone over prior inconsistent statement, its got to be afforded to opposing counsel. State is introducing it as a prior statement of the Defendant, and they are entitled to. It may be admitted.
The trial court ruled correctly. It is settled law that a prior statement by a witness testifying at a trial is not hearsay if it is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994); Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994); George v. State, 270 Ark. 335, 604 S.W.2d 940 (1980); see also Ark. R. Evid. 801 (d)(1)(h). That is the situation here. Defense counsel made every attempt to show Jones’s trial testimony was inconsistent with his earlier statements and fairness dictated that the prosecutor be allowed to explore this area of inquiry to clarify any confusion or misapprehension that may have lingered in the jury’s mind from defense counsel’s examination. Cooper, 317 Ark. at 489, 879 S.W.2d at 407.
Everette argues on appeal that the court erred by allowing the state to introduce the prior statement because unsworn out-of-court statements in criminal cases are excluded as substantive evidence. This argument is misplaced, as the statement introduced was not hearsay under Ark. R. Evid. 801(d)(1)(ii), and was not offered to prove the truth of the matter asserted, but to rebut an express or implied charge of recent fabrication. Although the prior statement could not have been introduced to prove the truth of the matter asserted, when evidence is admissible for one purpose but not admissible for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Ark. R. Evid. 105. Because the statement was admitted for a proper purpose, and the court offered to give a limiting instruction, Everette may not now complain that the statement was used by the state substantively when Everette neither asked the court for a limiting instruction nor accepted the court’s offer to give one. See Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); see also Bliss v. State, 288 Ark. 546, 708 S.W.2d 74 (1986).
Before leaving this point, we note that Everette’s argument on appeal complains that, besides Jones’s prior consistent statements, his entire statement given to defense counsel contained other inadmissible remarks which should have been excluded. However, even if this was true, Everette never raised this issue at trial, nor did he point out to the trial judge those purported offensive portions he now argues on appeal. Without making such a request below, Everette cannot argue on appeal that the judge erred by failing to separate inadmissible portions of the transcribed statement from the admissible portions. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985).
Everette Frazier’s second point asserts the trial court erred in not declaring a mistrial when the state cross-examined him at trial about his having invoked his right to remain silent when questioned by Detective Donald R. Batchelder the day of his wife’s shooting. The prosecutor’s examination of Everette follows:
Prosecuting attorney: You recall talking to Detective Batchelder back on October 18th, don’t you?
Frazier: Yes, sir.
Prosecuting attorney: And you heard his testimony about your conversation, didn’t you?
Frazier: Yes, sir.
Prosecuting attorney: And he asked you if you had been over to the residence that night, didn’t he?
Frazier: I believe so.
Prosecuting attorney: And you denied it twice; did you not?
Frazier: Yep.
Prosecuting attorney: And that was a lie, wasn’t it?
Frazier: I merely told him I hadn’t been there.
Prosecuting attorney: And that was a lie, wasn’t it?
Frazier: Whenever I was there, the shooting went on, I didn’t know nobody was shot. If I had known just one of them had been shot, I would have got them medical attention right then. If I would have had to have, I would have took them to the hospital myself.
Prosecuting attorney: Mr. Frazier —
Frazier: I didn’t — I told him I hadn’t —
Prosecuting attorney: — do you deny —
Frazier: — been there because I didn’t want to talk about it. I couldn’t talk about it.
Prosecuting attorney: It was a lie, wasn’t it?
Frazier: I answered your question.
Prosecuting attorney: Mr. Frazier, it was a lie, wasn’t it?
Frazier: I said — I said that it was.
Prosecuting attorney: Did Detective Batchelder give you every opportunity to tell your side of the story?
Frazier: Not actually. He just sat down and started asking my questions.
Prosecuting attorney: Did he give you every opportunity?
Frazier: I don’t know what you mean by every opportunity.
Prosecuting attorney: Did he cut you off?
Frazier: After I told him I wanted to see my lawyer.
Following the above colloquy, defense counsel moved for a mistrial, arguing the prosecutor’s questioning violated the principle in Doyle v. Ohio, 426 U.S. 610 (1976), where the Court held that the use for impeachment purposes of a person’s silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.
The short answer to Everette Frazier’s argument is that while Doyle bars the use against a criminal defendant of silence mentioned after receipt of governmental assurances, Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Anderson v. Charles, 447 U.S. 404 (1980). Questions which are not designed to draw meaning from silence, but are meant to elicit an explanation for a prior inconsistent statement are not contrary to the law in Doyle. Id. at 409. Here, the prosecutor’s question, “Did he [Detective Batchelder] cut you off?”, was asked for the purpose of helping Everette understand the prosecutor’s earlier question concerning whether the detective had given Everette every opportunity to explain his side of the story. Accordingly, we uphold the trial court’s denial of Everette’s mistrial motion.
The record in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) for errors prejudicial to Frazier that would warrant a reversal. No such errors have been found.
Affirmed.
Dudley J., dissents. | [
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Bradley D. Jesson, Chief Justice.
Appellant Marshall Cole, age fifteen, was charged in circuit court with possession of a handgun on school property and aggravated assault. He filed a motion to transfer his case to juvenile court. Following a hearing, the circuit court denied the motion. Cole brings this interlocutory appeal from the circuit court’s refusal to transfer his case to juvenile court. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(12), as this interlocutory appeal is permitted by statute. See Ark. Code Ann. § 9-27-318 (Supp. 1995). We affirm.
The amended information alleged that on February 14 and 15, 1995, Cole and two other juveniles, Brent William Dobbs and Tony Rios, were in possession of a .25-caliber pistol at Prairie Grove Junior High School. It was further alleged that Cole and Dobbs pointed a loaded gun at several students at the school.
Cole filed a written motion to have his case transferred to juvenile court on the grounds that he was only fifteen years of age at the time of the alleged incidents and that no serious physical harm or bodily injury occurred as a result of the incidents. At a hearing on the motion, Prairie Grove Police Chief Robin Casey testified that he was called to the school on the morning of February 15 by Principal Frank Baughman, who told him a student had threatened another student with a weapon on campus. Chief Casey interviewed the alleged victim, Matt Mangin, and based on information received from him, placed Cole and Dobbs under arrest. In a separate interview, Dobbs stated that he had taken the weapon to school. Cole, who had been involved in an altercation with Mangin, came to Dobbs to get the weapon. After removing three to four rounds from the clip, Dobbs gave Cole the weapon. Dobbs made no indication, however, as to whether he told Cole that the gun was loaded or unloaded. Cole took the gun in a bathroom with Mangin, and later brought the weapon back to Dobbs. Dobbs and Cole later took the gun and placed it in a backpack belonging to Rios.
Chief Casey interviewed Cole separately. Cole denied having threatened Mangin; rather, he maintained that he just held the gun out in the palm of his hand and was showing it to Mangin. During the course of his investigation, Chief Casey determined that there were at least two other incidents occurring on the previous day which involved Cole, Dobbs, and Rios and alleged threats using the gun. There were other incidents under investigation relating to the three defendants and guns that allegedly occurred prior to the incidents at the school. In one of these incidents, a mother reported that her daughter had been similarly assaulted. Chief Casey had no knowledge of any other police contact involving Cole and his department. On cross-examination, Chief Casey testified that the gun used in the February 15 incident was not fired, and that to his knowledge, there were no resulting injuries.
Cole’s stepfather, Jessie Bounting, testified that, to his knowledge, his stepson had never been arrested before. It was Bounting’s testimony that Marshall had been in trouble for “minor things” in school such as talking in class or disrupting class. On cross-examination, Bounting admitted that Marshall had gotten into trouble for fighting at school. According to Bounting, Marshall “hit a kid” on the first day he was in school at Prairie Grove, having just moved from Kansas. While Marshall, a ninth grader, was active in football and baseball and had never failed a grade in school, he was on medication for attention deficit disorder.
At the conclusion of the hearing, the circuit judge announced his ruling from the bench as follows:
[I]t is incumbent upon the State to show by clear and convincing evidence that basically the case should not be transferred to juvenile court ... A number of those factors have been touched upon by the parties. It’s clear to me, and I’m convinced that these crimes, aggravated assault and possession of a handgun at school or on public school property or on school property, both felonies, are extremely serious crimes. Obviously, for years the crime of aggravated assault has been treated and dealt with as a serious crime, a crime in which there’s a potential for injury or death, but for the Defendant’s conduct in not carrying out that threatened violence, it never occurs. The crime of possession of a handgun on school property is a relatively new crime, again, a felony. As I have indicated in a number of cases prior to this, I view the proliferation of handguns as a terribly serious problem in this commu nity and this county and this state and across this country. To me, these are terribly serious crimes and have the potential for violence. The law is clear, I can consider any one or more of these factors in determining whether or not these cases should be transferred. I can basically base my decision on one factor and, as I was indicating a minute ago, it’s clear to me, the evidence is clear that these two Defendants were involved in this activity, direct participants in this activity, and in my judgment, should be prosecuted and tried as adults. And, consequently, I’m going to deny their motions.
Cole filed a timely notice of appeal of the circuit court’s denial to transfer.
We recently repeated the guidelines under which we consider motions to transfer in juvenile cases in Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995):
In deciding whether to retain jurisdiction of the case, the trial court shall consider the seriousness of the offense, whether the offense is part of a repetitive pattern of adjudicated offenses, and the juvenile’s prospects for rehabilitation. Ark. Code Ann. § 9-27-318(e) (Repl. 1993). A defendant seeking a transfer has the burden of proof to show a transfer is warranted under Ark. Code Ann. § 9-27-318(e). Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995). “If he or she meets the burden, then the transfer is made unless there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court.” Bradley v. State, 306 Ark. 621, 623, 816 S.W.2d 605, 606 (1991); Ark. Code Ann. § 9-27-318(f) (Repl. 1993). “‘Clear and convincing evidence’ has been defined by this Court as ‘that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.’ ” Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991) (citation omitted).
The trial court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). “Moreover, proof need not be introduced against the juvenile on each factor.” Davis v. State, 319 Ark. at 616, 893 S.W.2d at 769. “We have often stated that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult.” Sims v. State, 320 Ark. 528, 536, 900 S.W.2d 508, 513 (1995) (citing Davis v. State, 319 Ark. 613, 893 S.W.2d 678 (1995)). No element of violence beyond that required to commit the crime is necessary under Ark. Code Ann. § 9-27-318(e)(1), see Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992), a case in which the underlying crime was rape, and we wrote, “Cobbins cannot be read to require that an added element of violence must be shown under § 9-27-318(e)(1), and we believe it would be a perverted interpretation to construe that provision in such a manner.” Id. at 511, 832 S.W.2d at 219. However, that a crime is serious without the use of violence “is not a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile.” Sebastian v. State, 318 Ark. 494, 498, 885 S.W.2d 882, 885 (1994).
The standard of review in a juvenile transfer case is whether the trial court’s denial of the motion to transfer was clearly erroneous. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995).
322 Ark. at 576-577. While we recognized in Holmes that, under our previous holding in Sebastian v. State, supra, the commission of a serious offense alone without the use of violence is not sufficient for a circuit court to retain jurisdiction of a juvenile, we held that the trial court could have relied on the violent nature of the crime of aggravated robbery in denying appellant’s motion to transfer to juvenile court. Id. at 579. In so holding, we said that no violence beyond that necessary to commit the offense of which the defendant was accused is necessary under Ark. Code Ann. § 9-27-318(e)(l). Id., citing Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992). Our decision in Holmes is easily reconciled with Sebastian v. State, supra, in which the appellant was charged with two counts of theft by receiving. While we affirmed the denial of transfer in Sebastian based on evidence of a repetitive pattern of offenses, we recognized, citing Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992), that the commis sion of a serious offense without the use of violence is not a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile. 318 Ark. at 498. In Blevins, we reversed the circuit court’s decision to deny transfer where the appellant was charged with possession of a controlled substance with the intent to deliver. Unlike the charges of theft by receiving in Sebastian and possession of a controlled substance with intent to deliver in Blevins, the crime of aggravated robbery charged in Holmes was inherently violent in nature.
A prosecuting attorney has the discretion to file charges in circuit court when a case involves a juvenile fourteen or fifteen years of age and the alleged act constitutes a crime listed in Ark. Code Ann. § 9-27-318(b)(2) (Supp. 1995). Both possession of a handgun on school property and aggravated assault are included in this list. See § 9-27-318(b)(2)(I) and (b)(2)(J). With respect to the crime of possession of a handgun on school property, codified at Ark. Code Ann. § 5-73-119 (Supp. 1995), we have recognized that the intent behind this statute is clearly to insure safety at Arkansas’s public schools. S.T. v. State, 318 Ark. 499, 885 S.W.2d 885 (1994).
Cole acknowledges that the criminal information, on its own, is sufficient to establish that the offense charged is of a serious and violent nature. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995). Here, the information alleged that Cole was in possession of a .25-caliber pistol at Prairie Grove Junior High School. The information further alleged that Cole committed aggravated assault by “unlawfully and feloniously, under circumstances manifesting extreme indifference to the value of human life, purposefully engaged in conduct that created a substantial danger of death or serious physical injury to another person . . . [by] pointing] a loaded gun at several students at school.” As we stated in Holmes v. State, supra, and Slay v. State, supra, no violence beyond that necessary to commit aggravated assault is necessary under Ark. Code Ann. § 9-27-318(e)(1). Unlike the crimes charged in Sebastian v. State, supra, and Blevins v. State, supra, we conclude that the crime of aggravated assault charged here, involving the alleged pointing of a loaded gun at several students at school, is inherently violent in nature. Moreover, the allegations in the information indicated that there were other incidents involving Cole and alleged threats using the gun in addition to the incident involving Mangin.
The fact that Cole had no prior adjudications did not render the trial judge’s decision erroneous, since it was not necessary that proof of each factor listed in Ark. Code Ann. § 9-27-318(e) be presented or that the trial court give each factor equal weight. See Holmes v. State, supra. The circuit court, recognizing that it was not required to give equal weight to each of these factors, based its decision on the extreme seriousness of the crimes charged. In sum, these charges alone were clear and convincing evidence which supported the circuit court’s decision to deny transfer. Thus, we cannot conclude that its ruling was clearly erroneous.
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Per Curiam.
Petitioner Benjamin A. Rook is charged with four counts of theft by deception. He made bail and later gave notice that his defense would be mental disease or defect. He was then incarcerated by the trial court, pending his mental health evaluation. He now petitions for issuance of a writ of habeas corpus for release from jail and moves for a motion for rule on the clerk to lodge his record in this court. An order for the mental health evaluation of the defendant filed January 9, 1996, is attached to the habeas corpus petition, but no other order of the trial court providing reasons for the incarceration is included in the record tendered to this court.
The trial court is directed to enter findings of fact and the reasons for the petitioner’s incarceration pending the mental health evaluation, within 10 days of the date of this per curiam order. | [
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Andree Layton Roaf, Justice.
Marine Services Unlimited, Inc. appeals from the chancery court’s award of judgments to Dennis Rakes, a shareholder and former president, for wrongful termination and to Karen Rakes, also a shareholder, for unpaid wages. The corporation also appeals from the chancellor’s failure to award judgment for certain personal expenses paid by the Rakes from corporate funds without proper authorization. We affirm the judgment of the chancellor, but modify the award as to Dennis Rakes.
Facts
Appellant Marine Services Unlimited, Inc., (MSU) is an Arkansas corporation operating a business in Benton County know as Rocky Branch Marina (marina). Wade Young, Randy Blevins, and appellee Dennis Rakes purchased the business in July 1989. They each paid $50,000 for a one-third interest in the corporation. The corporate minutes of July 12, 1989, reflect a meeting of the Board of Directors in which Dennis Rakes was elected president, Randy Blevins was elected Vice President, and Wade Young was elected Secretary. Karen Rakes was later added to the stock certificate of Dennis Rakes.
Dennis Rakes had a plumbing business at the time, Randy Blevins was retired, and Wade Young was living in Memphis, Tennessee, and working as a pilot for Northwest Airlines. Dennis Rakes was also selected as manager of the business, at a salary of $2500.00 per month; he later closed his plumbing business and worked solely at the marina. Karen Rakes was selected by the shareholders to run the office at the marina. The Rakes managed and operated the marina from June 1989 until October 1992, essentially 365 days per year. During that time, the Rakes were on call 24 hours a day; the telephone lines from the marina were transferred to their residence after hours. Karen Rakes worked without pay for most of the three years.
In 1992, Dennis Rakes injured himself at the marina and aggravated a preexisting medical condition. Mr. Rakes was unable to attend to the business and spent much of the summer bedridden, while Karen Rakes ran the marina.
Sometime during the first week of October 1992, Young and Blevins became concerned about the state of affairs at the marina. Young came to the Rakes’ home, noted Dennis Rakes’ condition, and obtained five or six grocery sacks full of receipts, checks, cash, and other material relating to the business. Young and Blevins held an emergency meeting of the MSU board of directors on October 12, 1992, with the MSU accountant and attorney present, cited a list of failures on the part of Dennis Rakes, and removed him as President and manager of MSU. They also voted to continue paying Rakes’ salary of $2500 net per month; Young and Blevins then assumed control of the business. Neither of the Rakes were given notice of the meeting.
Young and Blevins met again on October 23, 1992, as shareholders, without giving notice to the Rakes. As a “majority” of shareholders, they voted to remove Dennis Rakes as President of MSU and to replace him with Blevins. Dennis Rakes received notice of and attended a shareholders meeting on January 18, 1993. He acknowledged learning at this meeting that he had been removed as manager and president of MSU. He received his salary from October through December 1992 although he performed no services for MSU during the period.
On May 17, 1993, MSU filed a complaint in the Chancery Court of Benton County against. Dennis and Karen Rakes, alleging that Dennis Rakes, in his capacity as manager, acted in a negligent and haphazard manner, that the Rakes had converted corporate property to their personal use, and had failed to account for approximately $60,000 of corporate money. The Rakes denied all allegations in the complaint and filed a counterclaim alleging that Karen Rakes was owed for unpaid wages and that Dennis Rakes was entitled to damages for wrongful discharge. The Rakes also sought compensation for the trade-in-value of two personal vehicles used in the purchase of two corporate vehicles and the value of certain personal property not returned to Karen Rakes.
Chancellor Don Huffman found that MSU had failed to meet the burden of proof in its claims against the Rakes, that Dennis Rakes was wrongfully discharged from his position as President and manager of MSU, that Karen Rakes was entitled to judgment for unpaid wages, and that the Rakes were entitled to judgment for conversion of their personal vehicles and personal property. Dennis Rakes was awarded judgment in the amount of $37,852.22, for his salary plus health-insurance premiums from January 1993 to the time of trial in June 1994, less his earnings from other employment during that period. Karen Rakes was awarded judgment for unpaid wages for 1990, 1991, and 1992 totalling $59,993. The Rakes were awarded judgment of $5900 for the value of their vehicles and personal items.
1. Wrongful discharge
MSU first argues that the trial court erred in determining that Dennis Rakes was wrongfully discharged from his position as manager and in awarding him damages for his wrongful discharge. The by-laws of MSU required that at least three days written notice of special board meetings be given to each member. This requirement also follows the notice requirement found in Ark. Code Ann. § 4-26-805 (Repl. 1991). Dennis Rakes did not receive notice of the October 12, 1992 board meeting; neither of the Rakes received notice of the October 23, 1992 shareholders meeting.
In awarding judgment to Dennis Rakes for wrongful termination, the trial court correctly stated that corporate actions taken at shareholders’ and board of directors’ meetings are illegal and invalid if absent shareholders and directors had no notice of the meetings. However, the trial court further stated that “termination or discharge of employment is illegal or wrongful if it violates some well settled public policy” and that the failure to give notice to Dennis Rakes violated Arkansas statutes and therefore violated public policy in Arkansas. The order also stated that Dennis Rakes was entitled to damages for breach of contract.
On appeal, this court reviews chancery cases de novo and will reverse the findings of the chancellor only if those findings are clearly erroneous. Sunbelt Exploration v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995). It is also well settled that we will affirm the trial court where it reaches the right result, even though it may have announced the wrong reason. Mountain Home Sch. Dist. v. T.M.J. Builders, 313 Ark. 661, 858 S.W.2d 74 (1993).
With regard to Rakes’ employment as manager, this court has often cited the general rule that “when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause.” City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 154 (1994). “Generally, ‘employment is held only by mutual consent, and at common law the right of the employer to terminate the employment is unconditional and absolute.’ ” Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991) (quoting Griffin v. Erickson, 211 Ark. 433, 642 S.W.2d 308 (1982). However, we have acknowledged that an employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988).
In Sterling, we recognized four exceptions to the employment-at-will doctrine, stating:
Arkansas law would recognize at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state.
Sterling, supra (quoting Scholtes v. Signal Delivery Serv., Inc., 548 F.Supp. 487 (W.D. Ark. 1982)). Accordingly, this court held:
Therefore, we hold that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interest.
Sterling, supra.
We have further stated that public policy has been contravened “when the reason alleged to be the basis for a discharge is so repugnant to the general good as to deserve the label ‘against public policy.’” Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991).
MSU submits that the charge brought against Mr. Rakes at the special meetings held in October 1992 regarding his failure to properly manage the affairs of the corporation was the “reason” for his termination. By holding a majority of shares in MSU, Young and Blevins certainly had the power to terminate Rakes for the reasons given, or for no cause.
However, it is the manner of the termination, and not the reason for it that invalidated the actions taken by MSU at the October meetings. Actions taken at a shareholders’ meeting of which absent shareholders had no notice are illegal. See Red Bud Realty Co. v. South, 96 Ark. 281, 131 S.W. 340 (1910). Further, actions of a majority of the members of a board of directors are invalid if absent directors had no legal notice of the meetings. See Red Bud Realty Co., supra; Bank of Little Rock v. McCarthy, 55 Ark. 58, 14 S.W. 759 (1892).
Although Dennis Rakes was illegally terminated at the October, 1992 board and shareholders’ meetings, he received notice of a shareholders’ meeting in January 1993 and attended this meeting. At trial, Rakes testified that he continued in his position with the corporation until the January 1993 meeting. Blevins testified that Rakes understood that he had been removed as President of MSU and did not voice any objection to his removal at the January 1993 meeting. Rakes also testified to receiving three months salary for October through December 1992, even though he was no longer serving as manager of the marina. Here, Rakes accepted the three months salary payments and did not protest his removal at the January 1993 meeting. His silence or acquiescence in the actions of Blevins and Young amounts to a ratification. Brady v. Bryant, 319 Ark. 712, 894 S.W.2d 144 (1995); Sims v. First Nat’l Bank, Harrison, 267 Ark. 253, 590 S.W.2d 270 (1979).
The trial court erred in awarding Rakes judgment for his salary to the date of trial. We affirm the judgment for wrongful discharge, but reduce it to the sum of $3,323.04 for his salary and health insurance premium for the month of January 1993.
2. Back wages
MSU also contends that the trial court erred in awarding unpaid wages to Karen Rakes because she failed to keep accurate records of the hours she worked, because she is excluded by her management status from coverage under either the Fair Labor Standards Act or the Arkansas Minimum Wage Act, and because the damages awarded were based on speculation and conjecture. This argument fails, for several reasons.
In its ruling on the counterclaim pertaining to Karen Rakes’ unpaid wages, the trial court stated:
Ms. Rakes, was employed at $8.00 per hour but since MSU had a cash flow problem she would not be paid until a later time. Ms. Rakes was never paid and has sued for her wages plus overtime. Ms. Rakes kept no record of her hours worked. Ms. Rakes claims to have worked seven days a week since MSU took over the running of the business plus forty hours per week overtime during the periods of May 1 through September 30 each year. I find that Ms. Rakes worked all but one week in 1990, 1991, and 1992, and that she worked 40 hours per week every week plus 20 hours per week overtime during the period of May 1, through September 30 each year. I find the total wages owed is $64,164.00. I find Defendant’s argument and citations to applicable law to be persuasive.
The trial court did not make a specific finding as to which of the two acts, the Fair Labor Standards Act or the Minimum Wage Act of the State of Arkansas, applied to Karen Rakes’ claim or indeed if either applied. MSU does not dispute that Ms. Rakes worked without being paid. They assert only that Karen Rakes did not prove the number of hours she worked.
The burden of proving damages rests on the party claiming them and the proof must consist of facts, not speculation. Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992); Jonesboro Coca-Cola Bottling Co. v. Young, 198 Ark. 1032, 132 S.W.2d 382 (1939).
In this instance, appellee Karen Rakes testified to working at the marina 365 days a year, more than forty hours a week for over three years, most of that time without pay. After hours, the marina’s phones were transferred to her home because the marina received phone calls constantly. Ms. Rakes spent most weekends at the marina on a houseboat because of the hours she worked. Young and Blevins did not take an active role in running the marina until they became concerned about the Rakes’ management of the business. Young, who currently manages the marina, has hired a full time “dock master” and an office manager to assist him in operating the business.
MSU claims that Ms. Rakes was part of the management, administration and ownership of the marina, and is consequently exempted from both the federal and state minimum wage laws as an individual employed in a bona fide executive, administrative or professional capacity. As MSU did not raise this argument below, it is procedurally barred. We have repeatedly stated that we will not consider alleged errors that were not brought to the attention of the trial court. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992). Further, a contention that a business is exempt from the Fair Labor Standards Act coverage is an affirmative defense that is waived if not pleaded. Donovan v. Hamm’s Drive Inn, 661 F.2d 316 (5th Cir. 1981).
MSU also asserts that Ms. Rakes was under a fiduciary duty to accurately account for the number of hours that she allegedly worked at the marina for the past years. However, where employers fail to maintain employment records required by the Fair Labor Standards Act, a lower court can rely upon the employee’s own recollections to determine the number of hours worked for purposes of determining entitlement to unpaid compensation. Mumbower v. H. R. Callicott, 526 F.2d 1183 (8th Cir. 1975).
An employee suing an employer under the Fair Labor Standards Act for unpaid minimum wages or unpaid overtime compensation has the burden of proving that the employee performed the work for which the employee was not properly compensated. Anderson v. MT. Clemens Pottery Co., 328 U.S. 680 (1946). However, we have said that the burden should not be made an impossible hurdle for the employee, and due regard must be given to the fact that the employer has the duty under the act to keep proper records of employment. Id. Also, where an employee produces sufficient evidence to show the amount of work for which the employee was not properly compensated, as a matter of just and reasonable inference, the employer cannot complain that the damages lacked the exactness of measurement that would be possible had the employer kept the records required by the act. Id. Further, the rule that precludes the recovery of uncertain and speculative damages applies only to situations where the fact of damage is itself uncertain. Id. Of course, here it was certain that Ms. Rakes worked for MSU without compensation for almost three years. We cannot say that the trial court erred in awarding judgment to Karen Rakes for unpaid wages.
3. Conversion of Corporate funds
MSU’s final argument is that the trial court erred in not awarding judgment in the amount of the Rakes’ day care expenses, Dennis Rakes’ personal income taxes, and Dennis Rakes’ health insurance premiums paid without proper authorization from corporation funds. We first note that the trial court reduced the judgment for back wages awarded to Karen Rakes by $4171, the exact amount of child care expenses paid from corporate funds. The order stated that “as a matter of equity, [the judgment] should be reduced by $4,171 for unpaid wages . . . .” It is clear that the day care expenses were deducted from the sum awarded Karen Rakes and we need not further consider the point.
There is no dispute that corporate funds were used to pay for the $21,000.00 in tax withholdings for Dennis Rakes, and the premiums on Dennis Rakes’ insurance. However, MSU alleges that it did not know of these payments, while the Rakes allege that Young and Blevins consented to payment of these expenses. Faced with two versions the trial court makes a credibility decision of which witness to believe. Riddick v. Street, 313 Ark. 706, 858 S.W.2d 62 (1993). We cannot say that the trial court’s determination was clearly erroneous.
The Rakes contend that no objections were made to any of the expenses until after Rakes was removed as President and manager of MSU. They further contend that the $21,000 “personal income taxes” are actually the employment and withholding taxes on Mr. Rakes’ salary while President and manager of MSU. The Rakes assert that the corporation agreed to pay him a gross salary of $3200, while MSU argues that the corporation agreed to pay Rakes a gross salary of $2500 and the $700 per month difference amounted to a conversion of corporate funds. Rakes actually received a gross salary of $3200, with $700 withheld as taxes; the $700 per month is the amount in dispute. The minutes of MSU’s October 12, 1992 emergency meeting state that “it is agreed that Dennis should continue to receive his $2500 net salary, as before.” We cannot say that the trial court erred in determining the Rakes were not liable to MSU for conversion of the $21,000.00.
MSU contends that $1998.72 paid for the premiums on Mr. Rakes’ health insurance policy also amounted to a conversion of corporate assets. Once again, MSU argues that it did not know of this expenditure, while Rakes argues that MSU was fully aware of the payments. The trial court determined that MSU did not produce sufficient evidence to warrant an award for conversion. Again we cannot say that the trial court was clearly erroneous in making this finding.
Affirmed as modified. | [
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Tom Glaze, Justice.
Appellant Terrel Macon, a seventeen year old, was charged in circuit court with two counts of terroristic act and one count of aggravated assault. Under Ark. Code Ann. § 9-27-318 (Supp. 1995), he moved to transfer his charges to juvenile court, and after a hearing, the trial judge denied Macon’s motion. He brings this appeal under § 9-27-318(h).
In making the decision to retain or transfer the case, the trial court must consider (1) the seriousness of the offense and whether violence was employed by the juvenile; (2) whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; (3) the juvenile’s prior history, character traits, mental maturity, and any other factors reflecting upon his prospects for rehabilitation. § 9-27-318(e). Macon argues no evidence was presented to show he had committed a repetitive pattern of offenses, or to show he was beyond rehabilitation. In sum, he asserts that the trial court erred because it failed to consider factors (2) and (3) above. We do not agree.
We first point out that proof need not be introduced against the juvenile on each factor. Davis v. State, 319 Ark. 613, 893 S.W.2d 768, 769 (1995). Second, in making its decision whether to retain or transfer a juvenile’s case, the trial court is not required to give equal weight to each of the factors set out in § 9-27-318(e). Id.
Here, the trial court did, indeed, consider Macon’s prior history, noting he had been convicted and placed on probation for theft and criminal trespass. While these offenses did not necessarily show a repetitive pattern, the trial court did consider the offenses when discussing the lack of rehabilitative programs for Macon, especially in view of the fact he would turn eighteen years old within thirty days after the hearing. See McGaughey v. State, 321 Ark. 537, 906 S.W.2d 671 (1995). Accordingly, the trial court concluded the juvenile rehabilitative programs available to Macon would be extremely limited and inappropriate.
Aside from the rehabilitation issue, we must affirm the trial court’s decision because of its findings reflecting that Macon’s offense was both serious and violent, and therefore fell within the first factor described under § 9-27-318(e) above. The trial court found that Macon and others drove by Damien Moore’s residence in Hot Springs, and seeing Moore next to his parked vehicle, shot twice at him. They turned their vehicles around, drove by Moore again and fired four more shots. One shot struck Moore’s car door and another entered a nearby residence, where a bullet eventually landed on the collar of the person residing there.
Because Macon’s actions and offense exhibited a serious and violent nature, such proof was sufficient to support the trial court’s decision to deny Macon’s motion to transfer. Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995). In addition, we also conclude Macon failed to show the trial court clearly erred in finding Macon is not a good prospect for rehabilitation. Accordingly, we affirm. | [
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Per Curiam.
Appellant, Darren Woodruff, by his attorney, Maxie G. Kizer, has filed a motion for rule on the clerk. The Clerk refused to docket the record concerning Mr. Wood-ruff s conviction because it revealed that the notice of appeal was late. We treat the motion for rule on the clerk as a motion for belated appeal in this circumstance.
Failure of counsel to perfect an appeal for a defendant who wishes to appeal constitutes ineffective assistance of counsel, and good cause for granting a belated appeal pursuant to Ark. R. Crim. P. 36.9(e).
A copy of this opinion will be sent to the Committee on Professional Conduct. | [
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Per Curiam.
The appellant, Dale Bryant, pleaded guilty to capital murder on August 18, 1992. His plea was conditional on his right to appeal an adverse ruling by the trial court on a motion to suppress his inculpatory statements. The appellant was sentenced to life without parole. On September 13, 1993, the Arkansas Supreme Court affirmed the trial court’s denial of the suppression motion. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993). On November 18, 1993, the appellant filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. On the same date, the appellant also filed a motion for the trial judge to recuse himself from the appellant’s case. The petition and motion were denied without a hearing, and the appellant brings this appeal.
The appellant argues that the trial court erred in not holding an evidentiary hearing on the appellant’s Rule 37 petition. The judge held that the petition did not state grounds sufficient to grant relief. In the petition the appellant claimed that his sentence should be vacated and asked that he be allowed to withdraw his guilty plea for several reasons. He stated that his constitutional right to be present at all critical stages of the proceedings was violated when he was not present at a hearing on the state’s motion to have the appellant submit to blood and hair samples. He also claimed that the trial judge violated his rights and “committed a grave malfeasance” by stating that the appellant was represented by counsel at the hearing. Neither of these claims is cognizable in Rule 37 proceedings. When a defendant pleads guilty, the only claims cognizable in Rule 37 proceedings are those which allege that the plea was not made voluntarily and intelligently or was entered without effective assistance of counsel. See Branham v. State, 292 Ark 355, 730 S.W.2d 226 (1987).
The appellant next claimed in his petition that his guilty plea was the result of “reprehensible methods of persuasion to gain the plea” by his appointed counsel and that, but for counsel’s persuasion tactics and unprofessional errors, the results of the proceeding would have been different. These are conclusory allegations totally unsupported by facts; therefore, the allegations do not provide a basis for a hearing or postconviction relief.
Sixteen months after the appellant filed his Rule 37 petition, he filed a twenty-three page document entitled “Rule 37 — WRITTEN ARGUMENT.” None of the claims in that document were considered by the trial judge, nor should they have been. Arkansas Rule of Criminal Procedure Rule 37.1 (e) provides that a petition shall not exceed ten pages in length. Rule 37.2(b) provides that all grounds for relief must be raised in the original petition and section (e) of the same rule provides that in order to amend his petition a petitioner must ask leave of the court. In filing the twenty-three page document, the appellant did not ask the court’s permission to either file an overlength document or amend his original petition with the latter document. Therefore, the allegations in the latter document will not be considered.
The appellant claims that the trial court erred in refusing to recuse from the appellant’s case. In the appellant’s motion he stated that the trial judge should be disqualified because the appellant had filed a complaint against the judge with the Arkansas Judicial Discipline Committee. The appellant further stated that the committee only ruled on part of the complaint because of lack of jurisdiction and the appellant was seeking a ruling on the remainder of the complaint. The appellant also claimed that the judge should be disqualified because the judge’s actions in the pretrial proceedings form the basis of some of his Rule 37 allegations.
In his brief on appeal, the appellant argues that the trial judge should have disqualified himself from the Rule 37 proceeding because he was going to have to rule on the propriety of his own actions. This court has held that the judge who pre sides over a defendant’s trial can also preside over that defendant’s postconviction proceeding. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). Moreover, recusal is not required when some of the judge’s rulings are considered in the Rule 37 proceedings. See Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972); Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987).
The appellant also claims that the trial court’s order dismissing the Rule 37 petition indicated that the trial court was prejudiced against the appellant. The order stated in part:
It’s the Court’s impression that [the appellant] considers himself far more clever and intelligent than either of his lawyers or the trial judge. His filing of a Rule 37 petition was recognized by all concerned to be a given. This case was processed recognizing that regardless of circumstances of his being convicted that [the appellant] would claim that he was entitled to postconviction relief and would complain about the quality of legal representation.
The appellant argues that the judge’s comments reflect a preconceived notion that any allegations made by the appellant in a Rule 37 petition would be false.
A circuit judge’s decision not to recuse from a case is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The trial judge’s comments were made when he ruled on the appellant’s motion some sixteen months after it was filed, but the appellant wants this court to consider those comments as a reason to hold that the trial judge was wrong in refusing to disqualify himself. This court will consider only the facts set forth in the motion that the trial court ruled on; we find that there was no abuse of discretion in the trial court’s decision not to recuse.
Affirmed. | [
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Donald L. Corbin, Justice.
Appellant, Roger Haase, appeals an order of the Pulaski County Circuit Court granting summary judgment to appellee, C. Wayne Starnes, M.D., and dismissing without prejudice appellant’s complaint for negligence and. breach of express warranty. Thereafter, appellant filed a motion for reconsideration, which included a request for rulings on the constitutional challenges he made to the Arkansas Medical Malpractice Act, Ark. Code Ann. §§ 16-114-201 to -209 (1987 and Supp. 1995). Appellee filed a motion to correct the judgment to reflect that the dismissal of the complaint was with prejudice. The trial court entered an order denying both motions. From that order, appellant also appeals and appellee cross-appeals. This case was certified to this court as one involving a question about the law of torts. Ark. Sup. Ct. R. 1-2(a)(16). We find error in the part of the order granting summary judgment of the claim for expressed warranty and therefore affirm in part and reverse and remand in part. On cross-appeal, we modify the judgment to reflect that the dismissal of the complaint as to the claim for negligence was with prejudice.
Appellant filed a complaint against appellee alleging negligence and breach of express warranty arising from appellee’s treatment of appellant for a series of hair transplants. Appellant alleged that appellee placed advertisements stating “We guarantee you a full, growing head of hair for the rest of your life,” and “Transplants guaranteed to grow for the rest of your life.” Appellant asserted that he relied on such advertisements when he agreed to undergo a year-long series of hair transplants, grafts, and scalp reductions performed by appellee. Appellant further alleged that he suffered a severe infection during the course of appellee’s treatment that resulted in a scar which is incapable of sustaining hair transplants.
Eventually, appellant stipulated that he would not offer expert testimony to show appellee failed to maintain the applicable standard of care. Thereafter, appellee moved for summary judgment, arguing that he was entitled to judgment as a matter of law due to the absence of expert testimony. Appellant responded to the motion, arguing that expert testimony was not necessary on the facts of this case and that proof of the applicable standard of care and breach thereof is not necessary to a claim predicated on breach of express warranty.
The trial court granted appellee’s motion for summary judgment, ruling that, regardless of whether the “medical injury” resulted from negligence or breach of warranty, as long as it resulted from professional services rendered by a medical-care provider, the proof was governed by the Arkansas Medical Malpractice Act, and specifically section 16-114-206. Appellant asserts six arguments for reversal of that order.
I. BREACH OF EXPRESS WARRANTY — BURDEN OF PROOF
The facts are not in dispute. As the trial court stated in its order, the question before it was one of law. On appellate review of such a case, we simply determine whether appellee was entitled to judgment as a matter of law. National Park Medical Ctr., Inc. v. Arkansas Dep’t of Human Servs., 322 Ark. 595, 911 S.W.2d 250 (1995).
As his first point for reversal, appellant argues that expert testimony is not necessary to establish a cause of action based on breach of express warranty where the breach can be proven from evidence that is within a jury’s common knowledge. Appellant acknowledges that he seeks recovery for a “medical injury” as defined by section 16-114-201(3), and that his burden of proof is therefore governed by section 16-114-206. He argues, however, that when section 16-114-206 is applied to his breach-of-warranty claim, he is placed in the ridiculous posture of being required to offer proof that appellee was negligent in order to prove that appellee breached an express warranty. In summary, appellant’s first point has two components: one, he should not be required to prove negligence in this case in order to sustain a cause of action for breach of express warranty; two, expert testimony is not required in his case for breach of express warranty because the contract issue is within the common knowledge of lay persons.
Appellee responds that expert testimony is required regardless of whether a medical-malpractice plaintiff’s claim is for negligence or breach of warranty, essentially because the general public is not knowledgeable regarding techniques and procedures for hair-transplant surgery. Appellee responds further that regardless of appellant’s argument on this point, he is entitled to summary judgment because appellant did not plead nor offer proof of an express warranty made by him to appellant.
The trial court ruled that, if the injury complained of is a “medical injury,” expert testimony is necessary to establish the standard of care and breach thereof and that proof is governed by section 16-114-206 regardless of whether the claim is for negligence or breach of warranty. Because appellant stipulated he would not offer expert testimony on the standard of care and breach thereof, the trial court ruled appellee was entitled to judgment as a matter of law.
The trial court’s ruling was in error for two reasons. First, expert testimony is not necessary per se in every medical malpractice case. Our law is well-settled that expert testimony is required only when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, when the applicable standard of care is not a matter of common knowledge, and when the jury must have the assistance of experts to decide the issue of negligence. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995) (citing Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987)). To emphasize that expert testimony is not required in every medical-malpractice case per se, we repeat a statement from Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), that was quoted in Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972):
The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.
Id. at 926, 481 S.W.2d 712-13. This court has consistently applied this rule of law from the landmark case of Lanier to cases arising under the Arkansas Medical Malpractice Act. See, e.g., Robson, 322 Ark. 605, 911 S.W.2d 246.
The second reason the trial court’s order was erroneous is because section 16-114-206 does not apply to actions for medical injury based on breach of express warranty when the issue is whether the medical-care provider guaranteed the results. To so apply section 16-114-206 would defy common sense and produce absurd results, and this court does not interpret statutes in that manner. Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995). There is no doubt that, as appellant concedes, his claim for breach of warranty is included in section 16-114-201’s definitions of “action for medical injury” and “medical injury”:
(1) “Action for medical injury” means any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury;
(3) “Medical injury” or “injury” means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services. [Emphasis added.]
And it is true that section 16-114-206(a) purports to establish the burden of proof in any action for medical injury:
(a) In any action for medical injury, the plaintiff shall have the burden of proving:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;
(2) That the medical care provider failed to act in accordance with that standard; and
(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
However, the three requirements of section 16-114-206(a), namely the “degree of skill and learning ordinarily possessed and used by members of the profession,” failure to “act in accordance with that standard,” and “proximate result,” typify three requirements of a cause of action sounding in tort: duty, breach, and cause. These three requirements have no relevance in a contract-based cause of action arising out of a guarantee of specific, favorable results. The standard of care used by medical-care providers in similar communities and situations simply has no relevance in a case where the sole issue is whether a medical-care provider breached this particular express warranty. Plainly, the trial court’s construction of sections 16-114-201 and -206 achieves an absurd result that was not intended by the General Assembly. It would defy common sense to conclude that the General Assembly, by recognizing claims for breach of warranty and contract in its definition of “medical injury,” intended to establish a burden of proof consisting solely of tort-based elements in a warranty case based on a guarantee.
When stating the rule of law as to a physician’s duty to his patient, courts have said that in the absence of a special contract or express warranty, the physician does not warrant the success of his treatment but only that he or she will follow the applicable standard of care. See generally Jack W. Shaw, Jr., Annotation, Recovery Against Physicians on Basis of Breach of Contract to Achieve Particular Result or Cure, 43 A.L.R.3d 1221, § 5 (1972 & Supp. 1994). However, when courts have been presented with an allegation that a special agreement or express warranty was made and breached, such as we have here, the contract actions were allowed and analyzed on contract law rather than negligence law. See, id. (citing Compasano v. Claiborn, 2 Conn. Cir. 135, 196 A.2d 129 (1963)).
We therefore conclude there is merit in appellant’s argument that the trial court’s application of section 16-114-206 to his claim for breach of express warranty put him in the ridiculous posture of having to prove negligence in order to sustain his contract claim for breach of express warranty regarding the results and therefore was error. Accordingly, we reverse and remand that part of the trial court’s order granting summary judgment to appellee on the breach-of-warranty claim due to appellant’s failure to satisfy section 16-114-206.
We noted earlier that, as an alternative means of affirming the summary judgment in his favor, appellee contends that appellant failed to allege or prove appellee made an express warranty. In support of this contention, appellee cites Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995), a case in which we recently affirmed a summary judgment in favor of a physician who was sued for breach of contract. Brumley is distinguished from the present case on two bases: one, Brumley involved a breach-of-contract claim rather than a breach-of-express-warranty claim; and two, Brumley did not involve advertisements espousing guarantees as does the present case. While it is true that appellant stated in his deposition that appellee made no other representations to him than those in the advertisements that appellant observed in a men’s restroom and in the telephone directory’s yellow pages, appellee nevertheless made the representations in the advertisements and appellee does not dispute this. Attached to appellant’s response to the motion for summary judgment was appellee’s deposition wherein he stated he placed the alleged advertisements in the yellow pages and in men’s rooms and ladies’ rooms in restaurants in Little Rock, Conway, Hot Springs, Jacksonville, and Shreveport. Copies of the alleged advertisements were also attached to the response. Appellant stated in his deposition, which was also attached to his response, that he discussed the advertisements with appellee and that they discussed the particular procedures appellee performed on the man depicted in the advertisements as similar to the procedures appellee would perform on appellant. Moreover, appellant alleged in his complaint that he relied on the advertisements.
Due to the erroneous ruling on the application of section 16-114-206 to appellant’s breach-of-warranty claim, the trial court did not rule on the issue of whether the advertisements were express warranties made by appellee. While we are not aware of any Arkansas law directly on point, we are well aware that it has long been the law in this state that physicians may make an express contract with a patient whereby the physician makes a special agreement with the patient or promises to cure the patient. Guild v. Whitlow, 162 Ark. 108, 257 S.W. 383 (1924). The General Assembly was no doubt aware of this rule of law when it included breach of warranty and contract in the definitions of actions for medical injury. Likewise, we are aware that under the Uniform Commercial Code, which we acknowledge is not applicable to a contract for services by a physician but nevertheless provides guidance on contract principles by analogy, this court could not say as a matter of law that no express warranty had been made when a seller of goods placed advertisements of his goods relating to their quality. Little Rock School Dist. v. Celotex Corp., 264 Ark. 757, 574 S.W.2d 669 (1978). Consequently, because appellant did indeed plead and offer some proof of an express warranty made by appellee, and because appellant alleged by complaint that he relied on the advertisements in receiving treatment, we cannot affirm the summary judgment on the basis that appellant failed to plead or prove that a contract or express warranty existed.
In summary, the trial court erred in concluding as a matter of law that expert testimony is required per se in every action for medical injury. It erred further by applying section 16-114-206 to the claim for breach of express warranty and thereby terminating the breach-of-warrranty claim without considering and applying principles of contract and warranty law.
II. WAIVER OF DEFENSES
Appellant’s second point on appeal is his contention that a medical-care provider waives the protection afforded by the Arkansas Medical Malpractice Act when the medical-care provider makes an express warranty with respect to the success or results of a particular treatment. We do not address the merits of this point due to appellant’s failure to obtain a ruling on this issue from the trial court thereby waiving the issue on appeal. Brumley, 320 Ark. 310, 896 S.W.2d 860.
Appellant’s remaining arguments for reversal raise constitutional challenges to the Arkansas Medical Malpractice Act. It is well-settled that no constitutional issues are decided except those that are necessary to a decision in the specific case at hand. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). The burden-of-proof provision, section 16-114-206, is the only provision of the Act that the trial court applied to appellant’s detriment in this case. Therefore, section 16-114-206 is the only part of the Act that appellant has standing to challenge. Furthermore, our decision that the trial court erred in applying section 16-114-206 to appellant’s breach-of-warranty claim, however, limits our review of appellant’s remaining arguments to the negligence claim.
Ill FEDERAL CONTRACT CLAUSE
Appellant’s third argument for reversal is that the Arkansas Medical Malpractice Act impairs his right to contract and therefore violates the United States Constitution, art. 1, § 10, cl. 1, the so-called “contract clause.” It is well-settled that the contract clause is not to be construed literally, rather it is construed to allow a state to exercise its police powers. See, e.g., Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978). However, the contract clause does “impose some limits upon the power of a State to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power.” Id. at 242 (emphasis added). The operative facts of this case occurred well after the passage of the Arkansas Medical Malpractice Act in 1979. Thus, even assuming arguendo, that appellant and appellee had a contract, it was not an existing contract when the General Assembly enacted the Arkansas Medical Malpractice Act and section 16-114-206. Accordingly, we cannot say section 16-114-206 violated the contract clause in this case.
IV. EQUAL PROTECTION.
Appellant’s fourth argument for reversal is that the Arkansas Medical Malpractice Act violates the equal-protection clauses of the United States and Arkansas Constitutions. U.S. Const, amend. 14; Ark. Const, art. II, § 18. Appellant contends the Act, in its entirety, denies equal protection of the laws to medical-malpractice plaintiffs because it, among many other things, grants medical-care providers immunity from civil “self-incrimination,” imposes a standard of proof far above that required for other professionals, adopts the shortest statute of limitations for medical-care providers than for any other professional malpractice claims, and establishes a scheme for the payment of damages that is not available to other professionals.
The only argument appellant articulates under this point that could relate to section 16-114-206 is that the Act adopts “a standard of proof well far and above that required of other professionals in our societyf.]” Appellant does not make any convincing argument for such a contention, and because section 16-114-206 does no more than state the common-law elements of a claim for negligence in the medical-malpractice context, it is not apparent to us without further research that the argument is well-founded. We do not address such arguments. Equity Fire and Cas. Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996).
V. SPECIAL LEGISLATION
Appellant’s fifth argument for reversal is that the Arkansas Medical Malpractice Act violates the prohibition against special legislation as stated in the Arkansas Constitution, art. 5, § 25. Appellant does not rely on Amendment 14 to the Arkansas Constitution. The clause at issue here prohibits the General Assembly from enacting a special law where a general law can be made applicable. It is well-settled that the clause at issue here is not mandatory, rather it is directory or merely cautionary as applied to the General Assembly. See, e.g., Greer v. Merchants & Mechanics Bank, 114 Ark. 212, 169 S.W. 802 (1914). In other words, this clause is classified as one that leaves compliance to the discretion of the General Assembly. Id. Therefore, appellant’s fifth point is entirely without merit.
VI. SEPARATION OF POWERS
Appellant maintains that section 16-114-206(a) is in direct conflict with Ark. R. Evid. 702. He phrases the issue as one of the rule’s permissible expert testimony versus the state’s mandatory expert testimony and contends that the rule must be held to have superseded the statute.
Appellant’s argument is based on a false premise. There is no provision of section 16-114-206(a) that mandates the presentation of expert testimony. Rather, it is the facts of any given case that determine whether expert testimony is required in a medical-malpractice claim for negligence. Accordingly, appellant’s sixth point for reversal is without merit.
CROSS-APPEAL
As cross-appellant, appellee argues the trial court erred in denying his motion to correct the judgment so that appellant’s complaint would be dismissed with prejudice. The trial court’s order denying appellee’s motion specifically states that the complaint does indeed state a cause of action, but must fail because of a failure of proof. The order also states that it is within the trial court’s discretion to enter summary judgment either with or without prejudice. In that respect, the order is erroneous.
The questions of whether a complaint states a cause of action and whether a plaintiff has failed to offer sufficient proof of a cause of action to survive a defendant’s motion for summary judgment are questions of law with respect to which trial courts have no discretion. This court has discussed the effect of a summary-judgment dismissal on a plaintiff’s ability to re-file a complaint:
[S]ummary judgment based upon a failure to state a claim upon which relief can be granted is different from a summary judgment based upon a lack of disputed material facts, which results in a party’s entitlement to the judgment as a matter of law. The first is the failure to state a claim, the second is the failure to have a claim. When summary judgment is granted upon failure to have a claim, and the ruling is affirmed on that basis, the matter is ended with prejudice. However, when summary judgment is granted in the trial court because of failure to have a claim, but is affirmed on the basis of failure to state a claim, we modify to make the dismissal without prejudice in order to afford the plaintiff-appellant a chance to plead further. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984); ARCP Rule 12(j).
West v. Searle & Co., 305 Ark. 33, 36, 806 S.W.2d 608, 610 (1991) (citations omitted). The trial court’s order specifically states that it granted appellee’s motion for summary judgment because appellant had not proven his case. In other words, appellant did not have a case. Consistent with West, the summary judgment should have been granted with prejudice, and we modify the judgment to so reflect.
On direct appeal, the part of the order granting summary judgment as to the claim for negligence is affirmed; the part of the order granting summary judgment as to the claim for breach of warranty is reversed and remanded. On cross-appeal, the order is affirmed as modified to reflect that the complaint be dismissed with prejudice as to the negligence claim.
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Robert H. Dudley, Justice.
On appeal, the circuit court ruled that the Department of Human Services arbitrarily determined that Idell Wilson was ineligible for benefits under the Arkansas Medical Assistance Program. We affirm the circuit court’s ruling.
On August 1, 1986, Idell Wilson executed an irrevocable trust agreement and created the Idell Wilson Trust. The agreement designated the Farmers Bank and Trust Company as the trustee. Mrs. Wilson contributed in excess of $20,000 to the principal of the trust. Under the terms of the trust, the trustee is to manage and invest the trust property and collect and receive the income. After deducting the expenses of the administration of the trust, the trustee is to distribute the net income to the grantor, Idell Wilson. The trustee is to determine the times at which to distribute the income, but is required to at least make quarterly distributions. The trust is irrevocable and is to terminate upon the death of Idell Wilson. At that time, the principal and the accumulated income are to be distributed to Bobby Don Wilson, Jackie Wilson Mooney, Mary Jo Wilson Rogers, and Jimmy Porter Wilson. The trust contains the following paragraph:
8. Irrevocability of Trust. This Trust shall be irrevocable, and the Grantor hereby expressly waives all rights and powers, whether alone or in conjunction with others and regardless of when and from what source she may have acquired such rights or powers, to alter, amend, revoke, or terminate the Trust, or any of the terms of this Agreement, in whole or in part.
Mrs. Wilson entered a nursing home on March 5, 1993, and subsequently applied to the Department of Human Services for Medicaid long-term care benefits. Medicaid is a governmental program designed to provide assistance to the aged, blind, and disabled and to dependent children whose incomes or resources are not sufficient to meet the costs of necessary medical care and services. Mrs. Wilson was approved to receive long-term care benefits. At the time of the application for long-term care benefits, the principal of the trust amounted to $21,733.57. The application was approved with benefits to commence on March 1, 1993.
On May 18, 1994, appellant Department of Human Services Division of Economic and Medical Services sent a notice of action to Mrs. Mooney, Mrs. Wilson’s niece who had cared for her. The notice stated that Mrs. Wilson’s case would be closed effective May 28, 1994, and gave the following reason:
New policy has come out to relook at all trust funds held by Long Term Care patients. We were exempting these funds as a resource, but now we are having to count the total value. The amount of her trust was verified 4-26-94, in the amount of 21,733.57. This is over the resource limit allowed for Long Term Care, therefore her case will be closed.
Mrs. Mooney requested a hearing about the closing of Mrs. Wilson’s case.
An administrative hearing was held on August 15, 1994. A service representative testified that the Office of Chief Counsel of the Department had reviewed Mrs. Wilson’s trust and determined that the trust should be considered a resource, which caused Mrs. Wilson to exceed the resource limit. The Office of Chief Counsel sent a notice of its decision to the case worker who made the decision to take adverse action on Mrs. Wilson’s case.
Mrs. Mooney testified that the trust was created from the sale of farm equipment and from a certificate of deposit. The trust was established with money owned solely by Mrs. Wilson. Mrs. Mooney testified that Mrs. Wilson was in good health for a woman of her age at the time she set up the trust. Mrs. Mooney testified that the individuals designated to receive the principal of the trust after Mrs. Wilson’s death are her nieces and nephews.
The hearing officer entered a final order determining that the county office acted correctly and in accordance with the current Medical Services Policy when it proposed the closure of Mrs. Wilson’s long-term care case.
The trustee timely filed a petition for judicial review in the circuit court. It was uncontested that the quarterly income from the trust is a resource available to Mrs. Wilson. The contest involved only the Department’s ruling that the principal of the trust constituted a resource available for Mrs. Wilson’s care and maintenance. The circuit court determined that the agency’s decision was arbitrary and granted the trustees’ petition. The Department raises one point on appeal.
The Department asserts that the agency correctly analyzed the “Idell Wilson Trust” in light of current laws and rules and regulations governing eligibility for Medicaid benefits and determined that the trust posed a bar to eligibility. The argument is without merit.
The agency erroneously interpreted and applied Ark. Code Ann. § 28-69-102. In addition, the agency erred in applying its regulation, and in applying the case of Arkansas Dep’t of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993) to the facts of this case.
The standard of review of decisions by administrative agencies is well established:
The rules governing judicial review of decisions of administrative agencies by both the circuit and appellate courts are the same. Our review is not directed toward the circuit court but toward the decision of the agency recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. If we find the administrative decision is supported by substantial evidence and is not arbitrary, capricious or characterized by an abuse of discretion, we uphold it.
Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468, 472, 892 S.W.2d 262, 264 (1995) (citations omitted). “It is well-settled that we must affirm the decision of an administrative agency if there is substantial evidence of record to support it. Substantial evidence is valid, legal and persuasive evidence; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 353, 609 S.W.2d 23, 25 (1980). “To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was ‘willful and unreasoning action,’ without consideration and with a disregard of the facts or circumstances of the case.” Id.
We have further written that “the construction of a statute by an administrative agency is not overturned unless it is clearly wrong.” Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 460, 885 S.W.2d 863, 865 (1994) (citation omitted). “However, where the statute is plain and unambiguous, this court will interpret the statute to mean only what it says.” Id.
Section 28-69-102 of the Arkansas Code Annotated provides in pertinent part:
(b) A provision in a trust, other than a testamentary trust, which limits the availability of, or provides directly or indirectly for the suspension, termination, or diversion of the principal, income or beneficial interest of either the grantor or the grantor’s spouse in the event that the grantor or grantor’s spouse should apply for medical assistance or require medical, hospital, or nursing care or long-term custodial, nursing, or medical care shall be void as against the public policy of the State of Arkansas without regard to the irrevocability of the trust or the purpose for which the trust was created and without regard to whether the trust was created pursuant to court order.
(c) Subsection (b) of this section is remedial in nature and is enacted to prevent individuals otherwise ineligible for medical assistance benefits from making themselves eligible by creating trusts in order to preserve their assets.
Under the plain wording of Ark. Code Ann. § 28-69-102(b), Mrs. Wilson is not disqualified from receiving Medicaid benefits. It is true that Mrs. Wilson’s trust prevented the trustee from distributing the principal of the trust until Mrs. Wilson’s death, but no provision in the trust “limits the availability of, or provides directly or indirectly for the suspension, termination, or diversion of the principal, income, or beneficial interest of [Mrs. Wilson] in the event that [she] should apply for medical assistance or require medical, hospital, or nursing care or long-term custodial, nursing, or medical care.”
Likewise, the Department’s regulation, Medical Services Policy 3332.2, does not provide that the principal of Mrs. Wilson’s trust should be considered in determining whether Mrs. Wilson is qualified for Medicaid benefits. Medical Services Policy 3332.2 #13 provides in pertinent part:
A Medicaid Qualifying Trust is a trust or “similar legal device” established by an individual (or his spouse) who is the beneficiary of the trust and who gives a trustee any discretion for use of the trust funds.
With a Medicaid Qualifying Trust, consider as a resource to the beneficiary (for eligibility purposes) the maximum amount that a trustee could disburse if he exercised his full discretion allowed under the terms of the trust. This amount is deemed available to the individual, whether or not the distribution is actually made.
(2) If Appointed Trustee with Full Discretion — If the client is beneficiary of a trust with an appointed trustee who has full discretion for use of trust funds for the client’s benefit, consider the trust assets as a resource to the client.
(3) If Appointed Trustee With Limited Discretion — If the appointed trustee has limited discretion, the assets will be considered available to the maximum extent allowed by the trust, whether they are distributed or not.
Examples:
(b) The trust allows only payment of interest earned on the principal. This will also be considered income in the month available, whether paid or not, and, if not paid or used, will be a resource in the month(s) following.
Medical Services Policy 3332.2 #13. Policy 3332.2 simply does not provide for consideration of the principal of a trust when the trustee is not allowed to make any distributions from the princi pal until the death of the grantor, as was done in the present case.
In Arkansas Dep’t of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993), we addressed the retroactive application of Ark. Code Ann. § 28-69-102. In Walters, the appellee “created a trust for her ‘education, support, and general welfare’ while living a normal life, but, in order to become artificially impoverished and therefore eligible for Medicaid, she suspended the trustee’s power to pay her maintenance if she were placed in a nursing home.” Id. at 206, 866 S.W.2d at 823. The appellee in Walters had intended to preserve her assets for her heirs through the provision providing for the suspension of maintenance. We stated:
The Department’s regulations in effect before the legislation [Ark. Code Ann. § 28-69-102] was enacted did not expressly prohibit a person from artificially impoverishing himself or herself in order to become eligible for Medicaid. The General Assembly, without question, intended to put an end to such contrivances. The language of the Act is clear: Such a provision in a trust is void for determination of eligibility for Medicaid. In another Act of the same 1993 session, the General Assembly declared the public policy of this State to be that Medicaid is to be the payor of last resort. It is only after the individual has exhausted his or her own resources that the taxpayers are to assume the financial burden of an individual’s necessary medical expenses. Ark. Code Ann. § 20-77-101 (Supp. 1993).
Id. at 208-09, 866 S.W.2d at 825. The court further stated:
The spirit which promoted the Act, and the mischief sought to be abolished are unmistakably set out. The General Assembly said it intended to declare these trust provisions void and to allow the State to recover any benefits that might have been obtained with the use of such provisions. From this, it is apparent that the legislative intent was to give the Act retroactive effect.
315 Ark. at 209, 866 S.W.2d at 825. We gave Ark. Code Ann. § 28-69-102 retroactive effect to void the trust provision which provided for suspension of maintenance so that the appellee could qualify for Medicaid.
Walters is unlike the case at bar because the grantor in that case structured her trust in such a way that the trustee was to pay her maintenance while she was living a normal life, but the trustee’s power to pay the grantor’s maintenance was suspended if the grantor was placed in a nursing home. The grantor’s obvious goal was to circumvent the regulations which would disqualify her from obtaining Medicaid benefits, thus causing the taxpaying public to maintain her in a nursing home while she preserved her assets for her heirs. In the present case, Mrs. Wilson’s trust contains no similar provision. Under the terms of the Idell Wilson Trust the trustee is authorized to distribute the net income from the trust to Mrs. Wilson at such times as the trustee shall determine, but at least quarterly. This power is not altered depending on Mrs. Wilson’s medical or long-term care needs. The trustee is not authorized to distribute the principal until Mrs. Wilson dies, at which time the principal will be distributed to the named beneficiaries. Mrs. Wilson has never had access to the principal of the trust.
It does not appear from the trust agreement that Mrs. Wilson’s goal in establishing the trust was to force the taxpaying public to maintain her in a nursing home while she preserved her assets for her heirs. Additionally, the record does not support the conclusion that Mrs. Wilson acted surreptitiously in creating the trust. From the evidence in the record, it appears that Mrs. Wilson was not in poor health or in need of long-term care when she executed the trust. Nor does it appear that she was anticipating the need for long term care. Mrs. Wilson established the trust as an estate-planning device for the purpose of avoiding probate costs. The trust was also established as a means of managing Mrs. Wilson’s affairs. Mrs. Mooney testified:
[M]y uncle had just passed away and that what he had told us to do if — he wanted us to sell his things, and they lived out on the farm, and she could not live out on the farm by herself and to sell his things and put it up where she would have an income for the rest of her life to be taken care of.
In Thomas v. Arkansas Dep’t of Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995), the Department of Human Services determined that a trust was a Medicaid-qualifying trust. The circuit court affirmed the Department’s determination and this court affirmed the circuit court. The pertinent parts of the trust at issue in Thomas read as follows:
2. PURPOSE OF TRUST. This trust is established to meet the special or supplemental needs of Guy Leon Thomas, hereinafter called Primary Beneficiary. It is anticipated that the primary source of Primary Beneficiary’s medical, custodial and financial support shall come from governmental assistance, including Medicaid.
3. DISPOSITIVE PROVISIONS.
(a) During the lifetime of Primary Beneficiary, the Trustee shall pay to or apply for the benefit of Primary Beneficiary, such of the income and principal of the Trust Estate as the Trustee determines in its sole discretion is necessary for the reasonable comfort and happiness of Primary Beneficiary, but not for his food, clothing or shelter. The Trustee shall take into account the availability of government benefits in making expenditures and shall not make expenditures that will disqualify Primary Beneficiary from such benefits.
Id. at 785, 894 S.W.2d at 586. In affirming the determination that the trust was a Medicaid qualifying trust, we wrote:
[T]he public policy behind the Act is absolutely beyond dispute — trusts may not be created and used as devices to sequester resources for the purpose of qualifying individuals otherwise ineligible for Medicaid assistance. Ark. Code Ann. § 28-69-102(b) (Supp. 1993); see also Arkansas Dep’t of Human Servs. v. Walters, supra.
Id. at 789, 894 S.W.2d 588. The trust in the present case differs from the trust in Thomas in that it does not contain any provisions limiting the distribution of funds in order to assure that the beneficiary qualifies for Medicaid benefits.
The language of the statute is plain and unambiguous. Provisions in trusts that limit the availability of funds should the grantor apply for medical assistance or require medical or long-term care shall be void as against public policy. No such provision exists in this case. The Department’s regulation is plain and unambiguous and does not provide for consideration of the principal of the Idell Wilson Trust in determining whether Mrs. Wilson is eligible for Medicaid assitance.
Affirmed. | [
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Per Curiam.
Leonard Dokes was convicted of driving while intoxicated. He attempted to lodge the record of trial with this Court, but the Clerk refused the record because the notice of appeal was not filed within the prescribed time. Mr. Dokes, through his counsel C. Mac Norton, has moved for a rule on the clerk. In these circumstances we treat the motion as one for a belated appeal. Phillips v. State, 320 Ark. 392, 896 S.W.2d 890 (1995).
We grant the belated appeal because the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal constitutes a denial of effective assistance of counsel and good cause for a belated appeal. Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Andree Layton Roaf, Justice.
Appellant William E. Bryant, Jr., seeks reversal of a summary judgment dismissing his action against Appellees Ted and Karen Putnam, for injuries he suffered when he was bitten by dogs owned by the Putnams’ tenant. Appellees appeal the denial of A.R.C.P. Rule 11 sanctions. We affirm both the granting of the summary judgment and the denial of Rule 11 sanctions.
Appellees own a rental house in Conway, which they leased to Mona Jones. Appellant was attacked and injured by Ms. Jones’ rottweiler and pit bull dogs, while he was walking on a street adjacent to the rental house. Appellant filed suit against the appellees and Ms. Jones. He alleged the appellees were liable for injuries resulting from an unprovoked attack by dangerous or vicious animals kept by their tenant, and because they failed to provide adequate fencing in violation of a Conway city ordinance which prohibits dogs from running at large.
Appellees filed a motion for summary judgment with supporting affidavits alleging (1) they owned the property, (2) they were aware the tenant owned dogs but denied knowledge of any dangerous propensities of the dogs, (3) they had no proprietary interest in the dogs, (4) the attack occurred in the street adjacent to but not upon their premises, and (5) there was no legal basis set out in the pleadings, statutes or case law which would impute to them any liability for the appellant’s injuries. Appellant filed his response to appellees’ motion and attached affidavits of several neighbors who stated that (1) they observed the attack, and (2) the tenant knew that it irritated her neighbors for her to permit her dogs to run at large. Appellant presented no proof that appellees either knew the breed of dogs the tenant owned or knew of the dogs’ dangerous propensities.
Appellees also filed a motion for Rule 11 sanctions, asserting the appellant had no good faith basis for bringing suit against them. The court granted appellees’ motion for summary judgment, but denied their motion for Rule 11 sanctions. The trial court, in granting the summary judgment, found that it was undisputed that the tenant maintained dogs on property leased to her by the appellees, that the appellant was injured by the dogs in the street area and not on the leased property, and that liability of this nature has not been extended to landowners in Arkansas.
Appellant filed a non-suit of the action against the tenant and appeals the granting of appellees’ motion for summary judgment. Appellees cross-appeal from the trial court’s denial of their motion for Rule 11 sanctions. We find no error in either of the trial court’s rulings.
Summary Judgment
Summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). Here, the affidavits presented by the appellees in support of their motion do not leave a material question of fact unanswered, see Reynolds v. Shelter Mutual Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993), nor do the appellant’s affidavits present a genuine issue as to any material fact. See Wyatt, supra. In fact, none of the affidavits filed by either party put into dispute any of the facts alleged by the other.
However, the question of whether a duty is owed is always a question of law and never one of fact for the jury. Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994). See also 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992). We have held there is a duty owed by owners of animals that cause injury to third parties, in a number of instances. We have held an owner of an animal to be liable for injuries inflicted by the animal if (1) the animal was of a vicious species or (2) the animal, though domesticated, had dangerous tendencies which were known to the owner. Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994). We have also recognized some causes for ordinary negligence in allowing domesticated farm animals to run at large, and in allowing dogs to run at large in violation of a leash law. Finley v. Glover, 229 Ark. 368, 315 S.W.2d 928 (1958); Bolstad v. Pergeson, 305 Ark. 163, 806 S.W.2d 377 (1991). In Bolstad, supra, we held that violation of a leash law was some evidence of ordinary negligence. The Conway leash law relied upon by appellant in the instant case provides in pertinent part:
Any person owning, possessing or keeping a dog or dogs whether vaccinated or unvaccinated, licensed or unlicensed, shall confine such dog or dogs within an adequate fence or enclosure or within a house, garage or other building, or shall confine such dog or dogs by a chain or leash affixed to the dog’s collar and attached to some substantial stationary object adequate to prevent the dog from running at large, (emphasis added.)
Clearly, our cases and the Conway ordinance relied upon by appellant pertain to owners or keepers of animals, and not their landlords. Moreover, the ordinance does not mandate fencing as the only way to comply with the leash law.
The trial court was correct in finding that our laws impose no liability on a landlord to third parties injured by a tenant’s animals; the trial court thus correctly determined that there was no duty owed as a matter of law in granting the summary judgment. See Bartley, supra.
Rule 11 Sanctions
Appellees contend that the trial court erred in denying their motion for Rule 11 sanctions, because the appellant lacked a good faith basis to name them as defendants in his action. Arkansas Rule of Civil Procedure 11 provides in pertinent part:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or the needless increase in the cost of litigation ....
Both appellant and appellees agree that there is no Arkansas case law concerning landlord liability to third parties under the circumstances presented. Appellees assert that because we declined to hold a landlord liable to a tenant for injuries sustained in a common area in Bartley, supra, by implication, it should be clear that we would be even less willing to extend landlord liability to a third person injured away from the premises by a tenant’s animal. Appellees further contend that the cases from other jurisdictions relied upon by appellant do not support the appellant’s position and do not constitute a good faith argument for the extension of tort liability to landlords in Arkansas under the facts presented, because in every case the landlords were held liable only where the incident occurred on their property, or where they had knowledge of the dangerous propensity of the animal. See Siegel v. 1536-46 St. John’s Place Corp., 184 Mise. 1053, 57 N.Y.S.2d 473 (1945); Linebaugh by and through Linebaugh v. Hyndman, 213 N.J.Super. 117, 516 A.2d 638 (1986); Strunk v. Zoltanski, 62 N.Y.2d 572, 468 N.E.2d 13, 479 N.Y.S.2d 175 (1984); Virgil by and through Virgil v. Payne, 725 P.2d 1155 (Colo.App. 1986).
When a violation of Rule 11 occurs, the rule makes sanctions mandatory. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988). In reviewing a trial court’s Rule 11 determination, we do so under an abuse of discretion standard. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). We have said that the imposition of sanctions is a serious matter to be handled with circumspection, and that the trial court’s decision is due substantial deference. Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989). Rule 11 does not require that the legal theory espoused in an action prevail. Rather, the essential issue here is whether appellant fulfilled his duty of reasonable inquiry into the relevant law, and the indicia of reasonable inquiry into the law include the plausibility of any legal theory espoused and the complexity of the issues raised. See Crockett v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995). Even though we reject appellant’s arguments for extension of tort liability to landlords in this instance, he has the right to advocate such a change in the law, and we cannot say the trial court abused its discretion in denying the appellees’ motion for sanctions.
Affirmed on direct and cross-appeal. | [
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David Newbern, Justice.
This case was certified to us by the Arkansas Court of Appeals as one involving a legal principle of major importance. We accepted the certification with a view toward clarifying the requirements in our rules with respect to whether a defendant in a criminal trial conducted by a judge without a jury must apprise the Trial Court of the particulars of his or her claim that the evidence is insufficient to support a conviction in order to raise the issue on appeal. We hold there is no need to make such a motion in a bench trial in order to raise the issue on appeal. We affirm the conviction in this case as the evidence was sufficient to support the judgment.
Kenneth Strickland, the appellant, was the stepfather of a 12-year-old female child who accused him of sexual abuse. When the conduct allegedly occurred, Mr. Strickland was 43 years old. The child alleged, and later testified at trial, that Mr. Strickland fondled her breast.
The child testified that Mr. Strickland asked her to lie in bed with him while her mother was away from home. When she complied, he put his arm around her shoulder and began rubbing her breast. She said she began crying and was told to shut up but then was allowed to leave him and go to her room. She testified that she told a friend about the incident the next day. The friend’s mother notified school officials, and that led to the charge of sexual abuse in the first degree.
Mr. Strickland waived his right to a trial by jury. At the ensuing bench trial he denied the alleged event had occurred and said the child had made up the story due to jealousy as the result of attention given to him by his wife, the child’s mother. Mr. Strickland’s counsel did not challenge the sufficiency of the evidence at the conclusion of the State’s evidence. In his closing statement, however, defense counsel asked for acquittal stating, “Your Honor, ... I don’t feel that [the State has] met their burden of proof beyond a reasonable doubt.”
The Trial Court found Mr. Strickland guilty and sentenced him to five years probation, ninety days in the county jail, a $1,000 fine and 250 hours of community service. Mr. Strickland questions the sufficiency of the evidence.
1. Bench trial; questioning sufficiency of the evidence
The State contends that the issue of the sufficiency of the evidence is not preserved for appellate review because Mr. Strickland failed to raise the issue at trial in the manner required by Ark. R. Crim. P. 33.1 (previously rule 36.21).
Rule 36.21(b), which was in effect when the trial took place, provided:
Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
The rule has since been amended, renumbered as Rule 33.1, and retitled “Motions for Directed Verdict and Special Procedures During Jury Trial.” See In re: Motions for Directed Verdict in Criminal Cases, 321 Ark. 698 (1995). As amended, the rule provides:
When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and again at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. A motion for a directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal of a previous motion for a directed verdict at the close of all of the evidence preserves the issue of insufficient evidence for appeal.
Rule 36.21(b) and its replacement, Rule 33.1, by their very terms apply only “When there has been a trial by jury.” The State argues that, despite the language of the rule, we have required criminal defendants at bench trials to move for a “directed verdict” to preserve the sufficiency of the evidence issue for appeal. In support of the argument the State relies on Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993), and Stricklin v. State, 318 Ark 36, 883 S.W.2d 465 (1994).
In the Igwe case, the appellant was convicted in a bench trial and appealed questioning the sufficiency of the evidence. The State contended that failure to renew a “directed verdict” motion at the close of the evidence barred appellate review of the sufficiency of the evidence. We held that “in a trial by the court without a jury, it is unnecessary to raise the question of sufficiency of the evidence by motion at the close of the trial to preserve the issue for appeal.”
In the opinion, we discussed that part of Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992), which stated, “Appellant’s argument is a challenge to the sufficiency of the evidence, and, since appellant did not move for a directed verdict at the close of all the evidence, we do not address the issue even though this was a bench trial.” We said, “In the Greer case we obviously realized we were dealing with a bench trial rather than a jury trial, but we said the motion was required despite that fact without spelling out our reasons.”
In overruling that part of the Greer case which required a criminal defendant in a non-jury trial to move for a directed verdict at the conclusion of the evidence to preserve the issue of the sufficiency of the evidence on appeal, we stated, “We find no authority for applying the requirement of Rule 36.21 in a non-jury situation.”
In Stricklin v. State, supra, the appellant moved for a directed verdict on specific grounds as to each count at the close of the State’s evidence and renewed the motions at the close of all the evidence. After a bench trial, the appellant was found guilty on all counts. On appeal he argued the Trial Court erred in denying his directed verdict motions for two specific reasons which were not presented to the Trial Court. We affirmed and stated:
To conclude, in contravention of our established law applicable to proper preservation of issues for appellate review, appellant argued three grounds for his motion at trial, but bases his argument on appeal on two entirely different specific grounds, neither of which was raised at trial. In consequence, we summarily dispose of the argument, and will not consider it for the first time on appeal. Brown [v. State], 316 Ark. 724, 875 S.W.2d 828.
Brown v. State was a case tried before a jury.
In Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993), the Trial Court found Graham guilty of promoting a sexual performance by a child under the age of seventeen and held that he had failed to produce proof of an affirmative defense. The appellant asserted to this Court that the Trial Court erred in failing to grant his motions for directed verdict at the close of the State’s case and at the close of all evidence. In reversing the conviction, we stated, “It is, of course, unnecessary in a trial by the court without a jury for the defense to renew its motion for a directed verdict at the close of the trial in order to preserve the issue for appeal. Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993).”
The Igwe case presented only the question whether renewal at the close of the case of the motion for directed verdict was required in a bench trial, so that was the only question answered. The State contends that decision thus did not affect a general requirement that sufficiency of the evidence be challenged at some point in a bench trial. We understand the State’s narrow reading of the case, but we find it inconsistent with the rationale expressed in the Igwe case opinion. There, we found it necessary to overrule Greer v. State, supra, in which we had said a motion for a directed verdict at the close of all the evidence was necessary to preserve the issue of sufficiency of the evidence for appeal. Our explanation was twofold:
The issue we consider here was not argued by the parties in the Greer case. Any reasons we may have had for applying the requirement of a motion for a directed verdict at the close of a criminal bench trial are easily overcome when we consider the clear wording of the Rule limiting the requirement to jury trials and our assumption that the main purpose of a judge trying a case without a jury is to determine the guilt or innocence of the accused with the sufficiency of the evidence as the point of the trial. [Emphasis supplied.]
It may be necessary, and certainly economic, to grant a directed verdict motion to keep a case from a jury when it is clear that the evidence is insufficient to support any conviction the jury might return. Our assumption, however, expressed in the Igwe opinion was that motions for directed verdict are superfluous when there is a trial without a jury as the judge would only be directing his own verdict and the entire purpose of a bench trial is to have the judge, rather than a jury, ascertain the sufficiency of the evidence to convict.
If the Igwe decision meant that a defendant need not challenge the sufficiency of the evidence in order to preserve that issue for appeal, then it cannot be reconciled with our more recent decision in the Stricklin case. If there is no need whatever for a defendant to challenge the sufficiency of the evidence to preserve that issue for review, then it is illogical to say that, if he or she does so, he or she is bound to the specifics of the challenge and may not expand or supplant them on appeal.
In our opinion in the Igwe case, we referred to Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982), and the practice in civil cases pursuant to Ark. R. Civ. R 50(e) which, by its terms, requires the directed verdict motion be made and renewed only in jury trial cases. Discussing the Bass case, we said:
It was the first time we were called upon to decide whether Rule 50(e) applied to a non-jury trial. We concluded the Rule meant exactly what it said and noted that prior to the adoption of the Rule there was a requirement that the matters stated in Rule 50(e) applied both to a jury and non-jury trial. We held that, by specifically stating that it applies to a jury trial, the Rule by implication excluded applicability to cases tried without a jury.
Rule 50(e) is, by its terms, limited to jury trials. Rule 50(a), however, provides in part:
In nonjury cases a party may challenge the sufficiency of the evidence at the conclusion of the opponent’s evidence by moving either orally or in writing to dismiss the opposing party’s claim for relief. The motion may also be made at the close of all of the evidence and in every instance the motion shall state the specific grounds therefor.
Rule 50(a) thus provides a means of challenging the sufficiency of the evidence in a bench trial not found in the criminal procedure rules. Use of the motion is obviously discretionary rather than mandatory because the rule provides that a party “may” make such a motion. The fact that the motion is optional keeps the use of it from being a requirement for preservation of the sufficiency issue for appeal. Rule 50(e), on the other hand, specifies that failure to make and renew a directed verdict motion in a jury trial waives any question pertaining to sufficiency of the evidence but makes no such provision with respect to the motion to dismiss in a non-jury trial.
Our supposition in the Igwe case was that a Trial Court, sitting as a trier of fact, would be sufficiently aware of the evidence and the elements of the crime that no such motion would be necessary, and that is why our rules do not require the motion to dismiss in non-jury-trial cases. We adhere to that supposition today, and we overrule Stricklin v. State, supra, to the extent it is inconsistent with this decision.
2. Sufficiency of the evidence
Arkansas Code Ann. § 5-14-108 (Repl. 1993) provides in part:
A person commits sexual abuse in the first degree if: Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old ... .
The pertinent part of the definition of “sexual contact” is contained in Ark. Code Ann. § 5-14-101(8) as “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs ... of a person or the breast of a female.”
Mr. Strickland contends the State failed to satisfy its burden of proof because there was neither evidence that he touched a sex organ nor that the touching was an act of sexual gratification. First, he argues the child did not demonstrate her knowledge as to the significance of a breast and that the failure to demonstrate such knowledge had some legal effect on whether a sex organ was touched. The argument completely ignores the last part of the definition of sexual contact where it plainly states “or the breast of a female.”
Second, Mr. Strickland claims that there was insufficient evidence as to whether the touching was for sexual gratification. “Sexual gratification” is not defined in the statute, but we have construed the words in accordance with their reasonable and commonly accepted meanings. Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993); McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991).
It is not necessary for the State to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. See Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993); Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992); McGalliard v. State, supra. The child testified that Mr. Strickland called her to the bedroom, asked her to lie down and fondled her breast for five or ten minutes. Under the circumstances, the Trial Court could properly infer that the fondling was for the purpose of sexual gratification. The evidence was sufficient to sustain the conviction.
Affirmed.
Dudley, Glaze, and Corbin, JJ., concur. | [
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Robert L. Brown, Justice.
The issue in this appeal is whether certain reports of aborted pregnancies are either “medical records” or “vital records” and, thus, exempt from the requirements of the Arkansas Freedom of Information Act (FOIA), which is codified at Ark. Code Ann. § 25-19-101 to 107 (Repl. 1992, Supp. 1993). Appellants Arkansas Department of Health; Sandra B. Nichols, Director; and Henry C. Robinson, Director and State Registrar of the Division of Vital Records (jointly referred to as Health Department) appeal from a judgment of the circuit court ordering the release of these reports to appellee Westark Christian Action Council. We conclude that the court erred in finding that the reports were not vital records and exempt from the FOIA. We reverse and remand.
On July 1, 1994, Dale W. Morfey, Chairman and President of Westark, requested copies of aborted pregnancy reports and files under the FOIA for Washington, Crawford, and Sebastian Counties from 1980 to present or, alternatively, access to the files containing this information. The precise request was for copies of Form ACHS-01 for these counties for that time frame, which is a form entitled a “Report of Induced Termination of Pregnancy.” Form ACHS-01 is filed with the Health Department’s Center for Health Statistics “for statistical use only.” The data required in the form is the facility name and address where the induced termination occurs and the following information about the patient: age; marital status; date of pregnancy termination; address by city, county, state and zip code; residence inside the city limits; race; education level; previous pregnancies; date of last menses; and type of procedure used in the termination.
On July 6, 1994, the General Counsel for the Health Department responded and stated that the Division of Vital Records had interpreted Form ACHS-01 to be a “vital record” and not subject to release under the Vital Statistics Act. On July 28, 1994, Westark filed suit under the FOIA and alleged that the reports requested were not “vital records” but statistical reports and that their release would constitute no breach of confidentiality. Wes tark contended that the Health Department had violated the FOIA. The Health Department answered and denied the allegations in the complaint. It filed a Trial Brief, asserting that Form ACHS01 was not only a “vital record” under the Vital Statistics Act, codified at Ark. Code Ann. § 20-18-101 to 705 (Repl. 1991), but also a “medical record” and exempt under the FOIA at Ark. Code Ann. § 25-19-105(b)(2) (Repl. 1992).
On August 18, 1994, following a hearing on the matter, the circuit court found that Form ACHS-01 was neither a “vital record” nor a “medical report.” The court ordered disclosure of the reports requested by Westark pursuant to the FOIA but stayed its order pending appeal.
The dual arguments advanced by the Health Department on appeal are that Form ACHS-01 is both a “medical record” and a “vital record” and, thus, exempt from the FOIA under either exemption. We begin by referencing the policy considerations surrounding the FOIA and our rules of construction regarding it. The FOIA opens “all public records” for public inspection. Ark. Code Ann. § 25-19-105(a) (Supp. 1993). The term “public records” is defined to include all documents required by law to be kept and which record the performance or lack of performance of official functions. Ark. Code Ann. § 25-19-103(1) (Repl. 1992). We liberally construe the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. Sebastian County Chap, of the Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). In conjunction with this rule of construction, we narrowly construe exceptions to the FOIA to counterbalance the self-protective instincts of the government bureaucracy. Byrne v. Eagle, 319 Ark. 587, 892 S.W.2d 487 (1995); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). A statutory provision for nondisclosure must be specific. Ark. Code Ann. § 25-19-105(a) (Supp. 1993); Troutt Bros. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992). Less than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure. Troutt Bros. v. Emison, supra; Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
Bearing these principles in mind, we address the issue of whether Form ACHS-01 is a “vital record” and, if so, whether it is exempt from the FOIA. The Vital Statistics Act, as it existed in 1994, provided these definitions which are pertinent to this appeal:
(1) “Vital statistics” means the data derived from certificates and reports of birth, death, fetal death, induced termination of pregnancy, marriage, divorce, or annulment and related reports but does not mean or include the unintentional destruction of a fetus in performance of the surgical procedure dilation and curettage;
(3) “Vital records” means certificates or reports of birth, death, marriage, divorce, or annulment and the data related thereto;
(7) “Fetal death” means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy. The death is indicated by the fact that after the expulsion or extraction, the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles;
(A) “Spontaneous fetal death” means the expulsion or extraction of a product of human conception resulting in other than a live birth and which is not an induced termination of pregnancy, sometimes referred to as stillbirth and miscarriage;
(B) “Induced termination of pregnancy” means the intentional termination of pregnancy with the intention other than to produce a live-born infant or to remove a dead fetus;
Ark. Code Ann. § 20-18-102(1), (3), (7) (Repl. 1991).
The Act, in 1994, further prohibited disclosure of “vital records”:
(a) To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by this chapter and by regulation or by order of a court of competent jurisdiction. The regulations shall provide for adequate standards of security and confidentiality of vital records.
(b) The board may authorize by regulation the disclosure of information contained in vital records for research purposes.
(c) The state registrar shall not permit searching of the files and records of the division by any person other than by the authorized employees of the division and shall not furnish lists of births or deaths for commercial purposes.
Ark. Code Ann. § 20-18-304 (Repl. 1991).
The Act, thus, provides under § 20-18-102(7) that induced terminations of pregnancies are embraced within the definition of “fetal death.” The Act at § 20-18-102(3) also provides that “vital records” are reports of “death” and “the data related thereto.” Westark argues, however, that reports on fetal death are not specifically listed under § 20-18-102(3) as vital records while fetal death is mentioned in § 20-18-102(1) and § 20-18-102(7). This, according to Westark’s theory, substantiates a legislative intent to exclude Form ACHS-01 reports as “vital reports.” That contention, however, ignores the fact that a broader, more encompassing category is referenced under § 20-18-102(3) — death — which subsumes the subcategory of “fetal death.” We have addressed comparable arguments in other contexts. For example, it has been urged upon us on occasion that the term “robbery” does not include “aggravated robbery” for purposes of capital felony murder. We have dismissed that argument as having no merit. See Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988).
On an analogous point, Westark urges that Form ACHS-01 is a form for collecting data and statistics and as such is not a vital report. We give this argument little credence. The definition of “vital records” set forth at § 20-18-102(3) includes reports on death and the data related thereto. Under the clear terms of the statute, as already stated, “induced termination of pregnancy” is a subset of “fetal death” and data relating to death reports constitutes a “vital record.” We conclude that Form ACHS01 provides that data and easily qualifies as a vital record under the Vital Statistics Act.
We are mindful of the fact that the Vital Statistics Act does provide that reports on fetal deaths involving more than 20 weeks of gestation are made to the Division of Vital Records whereas reports on fetal deaths resulting from induced terminations of pregnancies are filed with the Division of Health Statistics. Ark. Code Ann. § 20-18-603 (Repl. 1991). We also are aware that under § 20-18-603 these statistical reports are not made part of the permanent records of the system of vital statistics. But contrary to the assertion by Westark, we do not view § 20-18-603 as undermining our conclusion that Form ACHS-01 is a vital record. This section merely describes where the report is to be filed and its lack of permanency. Regardless of its eventual location, Form ACHS-01 provides data relating to a category of death and is included within the definition of “vital records.”
Moreover, the Vital Statistics Act evinces a clear and specific policy in favor of the confidentiality of the Form ACHS01 reports. That policy is evidenced by the general provision which expressly renders disclosure of “vital records” unlawful under § 20-18-304. It is further evidenced by § 20-18-603(b)(3), which requires that reports of fetal deaths “not include the name or other personal identification of the individual having an induced termination of pregnancy.” To underscore this policy even further, the General Assembly enacted Act 1254 of 1995, which amends the Vital Statistics Act to include a category of statistics entitled “vital reports.” Under the new Act, “vital reports” are defined as “reports of fetal death and induced terminations of pregnancy and data related thereto,” and disclosure of “vital reports” is expressly proscribed. Act 1254 also defines “fetal death” and “induced termination of pregnancy” separately. We do not give retroactive effect to this legislative enactment. By the same token, the most basic rule of statutory construction is to give effect to the intent of the General Assembly. Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). While we view the Vital Statistics Act, as it existed in 1994, to be clear and unambiguous on the issue of whether Form ACHS-01 constituted a vital record and was nondisclosable, the enactment of Act 1254 confirms the manifest intent of the General Assembly to render unlawful the release of this data. See Nathaniel v. Forrest City School Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989).
Finally, though the circuit court did couch its order in terms of “finding” that Form ACHS-01 was not a “vital record,” we do not consider that to be a finding of fact which would bring into play the clearly erroneous standard of review. See Ark. R. Civ. P. 52(a). This case presents issues of statutory construction — what is included within the term “vital records” and whether the data is subject to disclosure — and it is for this court to decide what a statute means. See Peters v. State, 321 Ark. 276, 902 S.W.2d 757 (1995); Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993); Bryant v. Mars, supra.
Because we decide that Form ACHS-01 is a vital record within the confines of the Vital Statistics Act and exempt from the FOIA, we need not address whether it is also a “medical record.” We reverse the order of the circuit court and remand the case for purposes of entry of an order consistent with this opinion.
Reversed and remanded.
Newbern, J., not participating.
Special Justice Jesse L. Kearney concurs. | [
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Andree Layton Roaf, Justice.
Appellant Glynn Morehart seeks review of a directed verdict.granted in the jury trial of his action against appellees Dillard Department Stores and Hot Springs Mall Associates, for injuries he suffered in a fall. We affirm the trial court’s granting of the appellees’ motions for directed verdict.
Appellant entered Dillard’s Department Store located in the Hot Springs Mall by way of a handicap ramp, made a purchase, and exited using the same ramp. As he descended the ramp, he fell and broke his leg. Appellant filed suit alleging his injuries were caused by the negligence of the appellees. His complaint suggested a number of possible causes of his fall: (1) that the handicap ramp was negligently constructed because it was built with horizontal grooves (2) that the paint on the ramp was unsafe, and (3) that the slope of the ramp did not comply with certain building codes.
The case was tried to a jury in Garland County Circuit Court. Appellant presented the testimony of witnesses regarding the construction of the ramp and the painting of the ramp. Appellant testified that it had been raining on the day of the incident and the ramp was painted with a slick, shiny, yellow enamel paint and that there were wet leaves on the ramp. He further testified that he did not recall slipping and did not know how he fell. Although appellant’s expert witness testified that the ramp was not constructed to drain water properly, he offered no opinion regarding the cause of appellant’s fall. In sum, there was no evidence presented that water, paint, or a defective condition of the ramp caused the appellant’s fall. At the close of appellant’s case-in-chief, appellees moved for directed verdict based on the insufficiency of appellant’s evidence, and the trial court granted the motions.
Appellant argues that the trial court erred in granting the motions for directed verdict, because he presented sufficient evidence that his accident was caused by the negligence of the appellees. In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Howard v. Hicks, 304 Ark. 112, 800 S.W.2d 706 (1990).
The law is quite settled that a property owner has a general duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Dye v. Wal-Mart Stores Inc., 300 Ark. 197, 111 S.W.2d 861 (1989). According to Mankey, supra:
In order to prevail in a slip and fall case, a plaintiff must show either (1) the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it.
Here, appellant Morehart has failed to meet either of the criteria. The mere fact that he fell does not give rise to an inference of negligence. See Mankey at 17. See also Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1994). Although he proposed several possible causes for his fall, including the presence of water and wet leaves, possible causes, as opposed to probable causes, do not constitute substantial evidence of negligence. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994). Further, the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence. Mankey at 17. It must be proved that the substance was negligently placed there or allowed to remain. Id. Appellant testified that he did not know how long the ramp had been damp or how long leaves had been on the ramp.
The burden is always on the party asserting negligence to prove it, as negligence is never presumed. Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993). To establish a prima facie case of negligence, appellant must show that he sustained damages, that the defendants were negligent, and that such negligence was a proximate cause of his damages. Id. at 470. While a party may establish negligence by direct or circumstantial evidence, he cannot rely upon inferences based on conjecture or speculation. Arkansas Kraft at 471. Appellant, in this instance has failed to establish a prima facie case of negligence based on the presence of a foreign substance.
As to appellant’s allegations that the ramp was negligently constructed, we addressed a similar situation recently in the negligence action of Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995). The appellant in Jenkins made a purchase in appellee’s grocery store, attempted to exit the store, and fell before she reached her vehicle. She argued that her fall occurred when she stepped in the middle of the slope of a ramp and her foot went forward from under her. In granting the appellee’s motion for summary judgment, the trial court remarked that there had been no presentation of an affidavit or other evidence by a person with requisite skills and training to say that the condition in question was dangerous. Id. at 487.
This court recounted in Jenkins that the duty of appellee to its invitees, such as Ms. Jenkins, is clearly stated in Restatement of Torts 2d, § 343, as follows:
A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to remain upon the land without exercising reasonable care
(i) to make the condition reasonably safe, or
(ii) to give a warning adequate to enable them to avoid the harm.
Jenkins at 487. In that case, we determined that not only did appellant fail to show that the condition she alleged to have caused her fall constituted a “danger” or that it presented an “unreasonable risk” to invitees, there was nothing before the trial court to indicate that appellee had any knowledge whatever that the ramp was dangerous or involved an “unreasonable risk” to its invitees.
Similarly, in this instance, the appellant has failed to show that appellees were indeed negligent in the construction or painting of the ramp. There was no showing during the plaintiff’s case-in-chief that the ramp constituted a “danger” or that it presented an “unreasonable risk” to invitees, nor was there a showing to indicate that appellees had any knowledge that the ramp was dangerous or involved an “unreasonable risk” to its invitees.
In sum, there was no evidence presented that either water, leaves, paint, or a defective condition of the ramp caused appellant’s fall. We have long held that substantial evidence is not present where a factfinder is merely given a choice of possibilities which require the jury to conjecture or guess as to a cause. Arkansas Kraft at 471. Moreover, appellant is not sure why he fell. In fact, appellant could not even testify that his fall resulted from having slipped.
After hearing arguments of counsel, the trial court recessed to consider the evidence and legal authority presented. After this undertaking, the trial court stated:
Well, I hate to take a case away from the jury, but in reviewing the evidence presented in plaintiff’s case, the court is going to grant the motions of defendants for directed verdict. And for the record, I’m going to say that the testimony and evidence presented by the plaintiff indicates the plaintiff cannot say that he slipped at all, and particularly, if he did slip, what he slipped on. There is no evidence that he slipped because the ramp was improperly designed or that it was too steep. There’s no evidence that he slipped on or because of any paint that was on the ramp. There’s no evidence that he slipped because of water, debris or leaves or whatever else — cigarette butts or whatever else. I just find there’s no substantial evidence of negligence on the part of any of the defendants so I’m going to grant the directed verdicts.
Viewing the evidence in the light most favorable to the appellant, we hold the trial court was correct in directing a verdict in favor of the appellees.
Affirmed. | [
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Donald L. Corbin, Justice.
Appellants, Peter Laudan and Anna Moan, were separately convicted of one count of distribution of handbills in violation of the Fort Smith Municipal Code of Ordinances § 14-51, and assessed a fine of $100.00 and court costs of $62.26. Their cases were consolidated for appeal. Appellants assert Ordinance § 14-51 is unconstitutional because it is overbroad and impermissibly burdens their rights to free speech and exercise of religion protected by the First Amendment to the United States Constitution. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3) and (d)(1). We affirm the judgments of the trial court.
We first observe that appellants failed to obtain a ruling from the trial court on the issue of the constitutionality of Ordinance § 14-51. This court has repeatedly stated that failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review of the issue on appeal. E.g., Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992). Appellants argue the judgments of conviction implicitly contain the trial court’s ruling that Ordinance § 14-51 is constitutional because the constitutionality of the ordinance was the only contested issue at trial. Assuming, arguendo, the judgments of conviction implicitly contain the trial court’s ruling on the constitutionality of Ordinance § 14-51, we conclude other procedural obstacles remain that preclude our consideration of this appeal on its merits.
First, we observe that appellants’ overbréadth argument is raised for the first time on appeal. Hence, no ruling was obtained from the trial court on this issue, even implicitly, thereby precluding its review on appeal. Donald, 310 Ark. 197, 833 S.W.2d 770; Bonds, 310 Ark. 541, 837 S.W.2d 881. Second, appellants’ arguments that were raised at trial, i.e., that Ordinance § 14-51 violated their First Amendment rights to free speech and exercise of religion, are nonetheless precluded from review on appeal by appellants’ failure to obtain a ruling from the trial court specifying which of the three subsections of Ordinance § 14-51 were violated.
Ordinance § 14-51, entitled “Distribution of handbills and other hand-distributed advertisements,” provides, in full, as follows:
(a) It shall be unlawful for any person to throw or deposit any commercial or noncommercial handbill or other hand-distributed advertisement in or upon any sidewalk, highway, street, boulevard, alley or other public way or in or upon any public park, square, public plaza, public recreational area or public building within the city, provided however, that it shall not be unlawful on any sidewalk, street, or any other public place in the city for any person to hand out or distribute any commercial or noncommercial handbill or other hand distributed advertisement to any person willing to accept it.
(b) It shall be unlawful for any person to drop, deposit, or distribute any commercial or noncommercial handbill or other hand-distributed advertisement, in or upon any private premises within the city, except by handing and transmitting any such handbill or advertisement directly to the owner, occupant or other person then present in or upon such private premises, or by so placing or depositing said handbill or advertisement so as to secure and prevent same from being blown or carried about by the elements from any such premises to other public or private places. This subsection does not apply to those commercial or noncommercial handbills or other hand-distributed advertisements which the owner or occupant of the premises has given permission to be delivered to the owner or occupant of the premises or for which the owner or occupant of the premises has otherwise contracted for, solicited for, or otherwise authorized the placing or depositing of such handbills or advertisement upon the premises.
(c) It shall be unlawful for any person to place or deposit any commercial or noncommercial handbill or other hand distributed advertisement upon any vehicle not his own, or in his possession, upon any public street, highway, sidewalk, road, or alley within the city, providing, however, that it shall not be unlawful upon any such street or other public place for a person to hand out and distribute to the receiver therefor, any handbill to any occupant of the vehicle that is willing to accept it. [Emphases added.]
A cursory reading of Ordinance § 14-51 reveals that subsections (a) and (c) address the regulated activity when it occurs in or upon the public property enumerated therein, whereas subsection (b) addresses the regulated activity when it occurs in or upon private premises. Only subsection (c) expressly addresses the regulated activity when it involves placing literature upon vehicles. Appellants contend they have “standing to challenge Sub-section (c) of the Ordinance since they were found guilty of violating the Ordinance by placing [literature] on parked automobiles.” The state disagrees and asserts appellants were convicted under subsection (b) because their conduct occurred on private premises.
The record contains no ruling regarding whether appellants’ conduct occurred on public property, private premises, or both, within the meaning of Ordinance § 14-51. The evidence introduced at trial showed that appellant Laudan was arrested by an off-duty police officer who observed him placing religious tracts on the windshields of unoccupied vehicles parked in the parking lot of the Sutherland Lumber Company in Fort Smith. The evidence introduced at trial showed that appellant Moan was arrested pursuant to a report made by the owner and manager of Ci-Ci’s Pizza in Fort Smith, who testified he observed Moan placing copies of religious tracts “on a row of vehicles immediately to my right between my pizza place and Dr. Burd’s veterinarian clinic,” after another restaurant employee reported to him that Moan was putting handbills on the windshields and sticking them through the open windows of vehicles parked in the restaurant’s parking lot. No finding of fact was made as to whether the parking lots were public property or private premises within the meaning of Ordinance § 14-51.
Our review must be limited to those subsections of Ordinance § 14-51 that were violated by appellants’ actions. See United States v. Grace, 461 U.S. 171, 175 (1983) (limiting its affirmance of the lower appellate court’s holding purporting to declare a federal statute unconstitutional in its entirety to that portion of the statute actually violated by the appellants’ conduct). On this record, however, we cannot determine which subsections of Ordinance § 14-51 were violated by appellants, and we will not speculate as to that determination.
The burden of providing a record sufficient to show that reversible error occurred was upon appellants. Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994). We conclude appellants have failed to carry their burden in this matter. Ordinance § 14-51 is presumed to be constitutional and the burden of showing its invalidity was upon appellants. Board of Adj. of Fayetteville v. Osage Oil & Transp., Inc., 258 Ark. 91, 522 S.W.2d 836 (1975); accord Mt. Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993) (holding that a municipal ordinance is entitled to the presumption of validity that legislative enactments ordinarily receive). Appellants have failed to carry the burden in this matter, as well.
Affirmed. | [
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Robert L. Brown, Justice.
Appellant Eugene Hunt, an attorney in Jefferson County, brings this appeal on behalf of himself and other attorneys who, he alleges, comprise a class. He contends that the circuit court erred in dismissing his complaint under Ark. R. Civ. P. 12(b)(6) because his complaint asserted sufficient facts for relief for tortious interference with a business expectancy and for the tort of outrage. We disagree and affirm the order of dismissal.
On February 3, 1993, Hunt filed a class action on his own behalf and on behalf of a class of attorneys who, he stated, had suffered economic hardship because of the defendants’ conduct. The persons named as defendants included appellee Jerry Riley, appellee Leon Jones, Sr., appellee Jessie Jones, and appellee Michael Glover as well as “Blob” Pleasant and Revawn Johnson. Hunt alleged that the attorneys affected were too numerous for individual claims, making a class action the only practical mechanism for relief. No order certifying the class was obtained from the circuit court under Ark. R. Civ. R 23.
The essential allegations in the complaint for purposes of this appeal are these:
12. That a substantial portion of Plaintiff’s [Hunt’s] practice is or has encompassed the area of personal injury law.
13. That Plaintiff’s personal injury practice has drastically decreased.
14. That it has become known to Plaintiff that the named Defendants either alone or in concert have been involved in the solicitation of potential personal injury clients for legal action.
15. That each Defendant obtains auto accident information, approaches the accident victims, and suggests his respective attorney’s name to induce a contract for legal representation.
16. That as a direct and proximate cause of the Defendants’ outrageous conduct the Plaintiff has suffered loss of income.
17. That as a direct and proximate cause of the Defendants’ tortious interference with contractual relationship or business expectancy the Plaintiff and plaintiff class have suffered loss of income, for which the plaintiff is entitled to compensatory damages against the defendants herein.
18. That said prospective clients have made it known that they do not desire to be solicited.
19. That the Defendants alone or in concert have engaged in the tort of outrageous conduct in their persistence in soliciting prospective clients.
20. That the Defendants have alone or in concert have engaged in the tortious interference with contractual relationship or business expectancy.
21. That the Defendants knew or ought to have known, in the light of the surrounding circumstances, that their conduct would naturally or probably result in injury and that they continued such conduct with malice or in reckless disregard of the consequences from which malice may be inferred, and that the plaintiff and plaintiff class are entitled to punitive damages.
Appellee Jessie Jones moved to dismiss the complaint on Rule 12(b)(6) grounds. Appellee Michael Glover answered and denied the complaint’s allegations, but he counterclaimed for sanctions under Ark. R. Civ. P. 11. He then filed a motion to dismiss under Rule 12(b)(6). Appellee Jerry Riley also answered with a denial and counterclaimed for Rule 11 sanctions. In a separate motion, he too moved to dismiss under Rule 12(b)(6). Hunt answered the counterclaims of Riley and Glover for Rule 11 sanctions. A reference is made in the record to a motion for Rule 11 sanctions filed by appellee Jessie Jones on May 13, 1994, but the motion itself is not included in the record.
On April 4, 1994, an order of the circuit court was entered dismissing the Hunt complaint “without prejudice” for failure to state a cause of action. On December 30, 1994, an order by the circuit court was entered denying the request for Rule 11 sanctions. On January 27,1995, Hunt appealed from the “order entered on December 29, 1994 dismissing the complaint.” On February 3, 1995, Riley, Jessie Jones, Leon Jones, Sr., and Glover cross-appealed from the circuit court’s order denying Rule 11 sanctions.
I. MOTION TO DISMISS
We begin by examining Hunt’s point that he stated facts in his complaint upon which relief could be granted. In reviewing a trial court’s decision on a motion to dismiss under Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989). In deciding dismissal motions, the trial court must look only to the allegations in the complaint. Neal v. Wilson, supra; Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). In order to state a cause of action, the complaint must allege facts and not mere conclusions. Ark. R. Civ. R 8; see also Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). When a complaint is dismissed without prejudice, the plaintiff has the option of pleading further or appealing. Hollingsworth v. First Nat’l Bank & Trust Co., supra. If the plaintiff appeals, the option to plead further is waived in the event of an affirmance by the appellate court. Id.
Hunt first contends that he adequately pled a claim for tortious interference with a contract or business expectancy. There are four elements of a tortious interference claim: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Belin v. West, 315 Ark. 61, 864 S.W.2d 838 (1993); Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993); Walt Bennett Ford v. Pulaski County Special Sch. Dist., 274 Ark. 208, 624 S.W.2d 426 (1981). For an interference to be actionable, it must be improper. Fisher v. Jones, supra; Walt Bennett Ford v. Pulaski County Special Sch. Dist., supra.
Hunt in his complaint made several general assertions regarding his cause of action. He stated that a substantial portion of his law practice consisted of personal injury claims and that the defendants obtained accident information from police reports, contacted the accident victims, and referred them to certain attorneys for legal representation. He further asserted that the prospective clients made it known that they did not desire to be solicited and that his personal injury practice had drastically decreased.
Other than the allegation that Hunt had a personal injury practice, the complaint does not specifically state that Hunt actually had a contractual relationship with any of these “prospective clients” or that he had a business expectancy with respect to their representation, although presumably that is the basis for his complaint. Moreover, the complaint gives no factual basis for why Hunt believed that he had a contract or business expectancy to represent these “prospective clients.” Nor does the complaint allege that the defendants knew of a relationship between Hunt and any of the accident victims or of any expectancy Hunt had in their business or that the defendants’ actions were in any way improper. These are essential elements of a tortious interference claim. Fisher v. Jones, supra. Hunt only makes the bald and conclusory assertion that he had a contractual relationship or a business expectancy, and that the defendants’ conduct interfered with it. Conclusions without the necessary factual underpinnings to support them are not enough to state a cause of action. Hollingsworth v. First Nat’l Bank & Trust Co., supra.
The same holds true for his claim of outrage. In order to establish liability for outrage, Hunt was required to show: (1) that the defendants intended to inflict emotional distress or willfully and wantonly knew or should have known that emotional distress was the likely result of their conduct; (2) that the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) that the actions of the defendants were the cause of his distress; and (4) that the emotional distress sustained by Hunt was so severe that no reasonable person could be expected to endure it. Thornton v. Squyres, 317 Ark. 374, 877 S.W.2d 921 (1994); M.B.M. Co. v. Counce, 268 Ark. 269, 569 S.W.2d 681 (1980).
Here, Hunt’s complaint alleges that the defendants were soliciting accident victims for their respective attorneys and that this conduct amounted to tortious conduct. While the allegations are of the most serious sort, this court has stated that merely describing conduct as outrageous does not, in itself, make it so. Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991). Hunt also fails to allege that the defendants’ conduct resulted in any type of emotional distress for him, and that is an essential element of the tort of outrage. Hunt only states, again in conclusory fashion, that he suffered a loss of income due to the defendants’ “outrageous conduct.”
We conclude that the circuit court did not err in dis missing Hunt’s complaint for failure to state a cause of action. Moreover, because Hunt chose to appeal rather than to amend his complaint following the order of dismissal without prejudice, his complaint is dismissed with prejudice. See Hollingsworth v. First Nat’l Bank & Trust Co., supra.
II. RULE 11 SANCTIONS
The appellees cross-appealed claiming that the circuit court erred in denying their requests for Rule 11 sanctions. Under Rule 11, an attorney signing a pleading, motion, or other paper on behalf of a party certifies (1) that the attorney made a reasonable inquiry into the facts supporting the document or pleading; (2) that he or she made a reasonable inquiry into the law supporting that document to ensure that it was warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (3) that the attorney did not interpose the document for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). When a violation of Rule 11 occurs, the Rule makes sanctions mandatory. Id. Whether a violation occurred is a matter for the trial court to determine, and this determination involves matters of judgment and degree. Id. In reviewing a trial court’s Rule 11 determination, we do so under an abuse of discretion standard. Id; see also Miller v. Leathers, 311 Ark. 372, 843 S.W.2d 850 (1992); Miles v. Southern, 297 Ark. 280-A, 763 S.W.2d 656 (1988) (supplemental opinion denying rehearing).
The appellees’ cross-appeal should be dismissed because they failed to bring up a record sufficient to decide this point on appeal. The trial court apparently conducted a hearing on the matter, and briefs were submitted. None of this information was included in the record. The burden is on the appealing party to bring up a sufficient record for our review. Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). It is impossible to determine if the circuit court abused its discretion in the instant case, when we cannot determine what evidence the court had before it and what it weighed and considered. Id; Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992). The fact that Hunt’s complaint is conclusory, standing alone, is not enough for us to conclude that the circuit court abused its discretion. The circuit court’s denial of Rule 11 sanctions is affirmed.
Affirmed on direct appeal. Affirmed on cross-appeal.
Roaf, J., not participating.
An affidavit was filed by appellee Jessie Jones, but there is no indication in the record that anything other than the allegations in the complaint were considered by the circuit court in making its decision. | [
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Donald L. Corbin, Justice.
Appellant, D. Hawkins, Incorporated, appeals the amended order of the Pulaski County Circuit Court, entered March 22, 1994, ordering it, as a resident of this state and judgment debtor, to comply with Arkansas Code Annotated § 16-66-221 (Supp. 1993) by filing a properly verified schedule of property with the circuit court. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3) and (d)(1).
Appellant raises three arguments for reversal: first, that a corporation is not a “resident” within the meaning of section 16-66-221, second, that section 16-66-221 is a penal statute that must be strictly construed, and, third, that the interrogatories of appellees, Lance and Evelyn Schumacher, are overly broad and request confidential information. Pursuant to Ark. Sup. Ct. R. 4-2(a)(6), we hold that appellant’s abstract in this one-brief case is flagrantly deficient and we summarily affirm the trial court’s judgment for noncompliance with the rule. Ark. Sup. Ct. R. 4-2(b)(2).
Appellant’s complete abstract consists of a recitation of section 16-66-221, in its entirety, together with the following three paragraphs, which we quote from the abstract:
A. “The Court finds that, although the Defendant is a corporation, the provisions of A.C.A. § 16-66-221 are applicable against a domestic corporation. Therefore, the Defendant is ordered to comply with A.C.A. § 16-66-221 by filing a schedule of property verified by affidavit with the Court within fifteen (15) days of entry of this order.” (Amended Order dated March 22, 1994 — page 164.)
B. “The Court finds that there is no privilege of confidentiality existing between the Defendant and its clients protecting the confidentiality of financial records of persons not a party to this litigation and therefore orders the Defendant to make available all buyers and sellers settlement statements for property closings conducted by the Defendant, D. Hawkins, Inc., for a period of one year prior to the judgment date, of October 20, 1993 for inspection and/or copying by the Plaintiff at the office of the Defendant during normal business hours.” (Amended Order dated March 22, 1994 — page 165).
C. A transcript of hearing conducted on the 18th day of February, 1994 (pages 181 through 190).
Our rules require that the abstract contain only the information in the transcript that is “necessary to an understanding of all questions presented to the Court for decision.” Carmical v. City of Beebe, 316 Ark. 208, 209, 871 S.W.2d 386, 387 (1994) (quoting Rule 4-2(a)(6)). A summary of the pleadings and judgment appealed are the bare essentials of an abstract. Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995). Appellant has failed to provide this essential information. Nor can we determine from a reading of the brief, which basically abridges a transcript of 191 pages into two paragraphs, the material parts of the transcript necessary for an understanding of the questions presented. Carmical, 316 Ark. 208, 871 S.W.2d 386. On this record, we cannot discern whether appellant preserved its arguments for review by first raising them before the trial court, see McAdams v. Automotive Rentals, Inc., 319 Ark. 254, 891 S.W.2d 52 (1995), and we cannot locate the factors that led to the trial court’s judgment. Sturch v. Sturch, 316 Ark. 53, 870 S.W.2d 720 (1994). In summary, the abstract does not contain all the information necessary to our resolution of the issues presented. Carmical, 316 Ark. 208, 871 S.W.2d 386.
The trial court’s judgment is affirmed. | [
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David Newbern, Justice.
Bob Driggers, the appellant, sued Buddy Neal and Ken and Louann Locke for damages resulting from an automobile accident which occurred at an intersection in Arkadelphia. The record reveals that Mr. Driggers was unable to serve Buddy Neal, the driver of the other vehicle. The allegation against the Lockes was that holly bushes growing on their property at the intersection so impaired motorists’ ability to see oncoming vehicles as to be a cause of the accident. The Lockes denied liability and moved for summary judgment which was entered in their favor. Mr. Driggers took a voluntary nonsuit of his claim against Buddy Neal and appealed the summary judgment which we affirm.
1. Finality of the order
Although no issue as to the finality of the order has been raised by the parties, our recent decision in Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995), raises a question whether the summary judgment is a final, appealable order. In the Haile case, as we had done in Ratzlaff v. Franz Foods of Ark., 255 Ark. 373, 500 S.W.2d 379 (1973), we held that a party who has several claims against another may not take a voluntary nonsuit of one claim and appeal an adverse judgment as to the other claims when it is clear that the intent is to refile the nonsuited claim and thus give rise to the possibility of piecemeal appeals.
This case is different in that the nonsuit is not with respect to one of several claims against a party; it is a nonsuit with respect to one of several parties. Arkansas R. Civ. P. 54(b) makes it clear that when there are multiple parties the disposition of the case as to fewer than all does not amount to a final, appealable order absent a certification of the Trial Court that there is no need to delay the entry of a final judgment. Of course, as a technical or formal proposition, Mr. Driggers has no remaining claim before the Trial Court in view of the nonsuit and the summary judgment, so Rule 54(b) is not applicable. That does not, however, answer the question whether the rationale of the Haile and Ratzlaff cases should apply.
We have found very little authority on the matter of the finality of a judgment when there has been a nonsuit without prejudice against one of multiple parties to litigation arising out of a single incident. We do know that we have not dismissed other appeals which have come to us in this posture. See, e.g., the recent case of Bryant v. Putnam, 322 Ark. 284, 908 S.W.2d 338 (1995).
Focusing on the issue more intensely than we did in the Bryant case, we see at least one distinct flaw in the proposition that the rationale causing dismissal in cases of voluntary nonsuit of one of multiple claims against a single party should apply when the nonsuit is with respect to one of multiple parties. Nothing requires a plaintiff to sue the prospective defendants simultaneously. If, however, a plaintiff has a number of claims against a single party, the doctrine of res judicata will bar issues which could have been litigated between them but were not. In Matter of Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995); Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991). If Mr. Driggers had sued the Lockes and not joined Buddy Neal, the summary judgment in favor of the Lockes would have unquestionably been a final, appealable order, and he could have sued Buddy Neal later. The fact that he began an action against Buddy Neal and then took a nonsuit leaves the parties in the same positions as they would have occupied had the claim against Buddy Neal merely been delayed rather than nonsuited.
The one case we have found which airs a similar issue based on similar facts is Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150 (3d Cir. 1986). The opinion suggests the appeal would not have been considered final but for the fact that the statute of limitations had run on the claim against the party nonsuited, thus the litigation was effectively over. This litigation may also be over with respect to the claim against Buddy Neal in view of the apparent inability of Mr. Driggers to serve Mr. Neal and in view of the Lockes’ answer stating, “upon information and knowledge that Buddy Neal is deceased and therefore is no longer a resident of Clark County, Arkansas.” Regardless of this additional practical possibility, we hold the rationale of the Haile case does not apply when the nonsuit is as to a party and not an issue in the case. We thus proceed to the merits of the summary judgment in favor of the Lockes.
2. Duty
The Lockes’ motion for summary judgment stated, “Owners and occupiers have no common law duty to maintain their property so as to ensure that travelers of an abutting highway have an unobstructed view of intersections,” and that the drivers’ conduct constituted “intervening causes” of the accident. Mr. Driggers’ response was a simple denial of both allegations. The order granting summary judgment did not specify the basis, but we must conclude the Trial Court agreed there was no duty on the part of the landowners. Otherwise, there would have obviously been questions of fact to be decided with respect to causation, and summary judgment would have been inappropriate. Ark. R. Civ. P. 56(c).
The question of whether a duty is owed is always a question of law. First Commercial Trust Co. v. Lorcin Eng’g, 321 Ark. 210, 900 S.W.2d 202 (1995). If the Lockes had a duty to maintain the bushes on their land in such a way as not to obscure the vision of motorists approaching the intersection, then questions of negligence involving issues of fact were presented to the Trial Court. If there was no such duty, summary judgment was appropriate.
In Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S.W.2d 451 (1961), the plaintiffs were the driver and occupants of a car which struck a gravel truck when the truck exited property leased by Ben M. Hogan & Co. (Hogan) after obtaining a load of gravel from Hogan. The plaintiffs sued the owner and driver of the truck as well as Hogan. The complaint against Hogan alleged numerous acts of negligence including an allegation that Hogan was negligent in:
The assembling and maintaining of a stockpile of gravel 25 feet high and 35 feet wide . . . which completely obstructed and cut off the view of the appellee and prevented her from seeing the . . . truck; that Hogan had failed to cut. and remove trees, bushes and vines which had grown on the leased property of the appellant [Hogan] in such a manner that it had obstructed the appellee’s view . . . and prevented her from seeing the . . . truck ....
The bulk of our opinion dealt with an explanation that the piling of the gravel was not a negligent act and that the actions of the drivers of the vehicles involved in the collision amounted to intervening causes of the injuries. In conclusion, however, we said:
The gravel pile was merely one of the conditions or surrounding circumstances that were present at the time of the accident. It was one of the “circumstances” to be considered in applying the rule of reasonable care “under the circumstances” in determining the fault or lack of it on the part of the drivers of the vehicles involved. It was no more a “cause” of the accident than was any of the other conditions present, such as: the underbrush and trees which obscured the view — the dirt and gravel road with less traction for stopping than one of a different material — the hill which did not allow an adequate view down the road — the great distance from the bumper to the windshield of the truck which prevented the driver from seeing down the road without pulling out on it. Certainly we are not going to hold liable every property owner who has a tree alongside the road — the city, county, or state for not providing the most efficient road surfacing material — the city, county, or state for failing to level all hills or straighten out all curves — and manufacturers of vehicles for not shortening truck noses.
The location of the gravel pile and all of these things to which we make reference here are circumstances that should have been considered by [the owner and driver of the truck] ... in applying the rule of reasonable care.
We held a verdict should have been directed in favor of Hogan.
The parties now before us offer, quite understandably, differing interpretations of the Ben M. Hogan & Co. opinion. Mr. Driggers sees it as one which “turned entirely on the law of proximate cause as it existed in 1961” and argues the law has changed to permit his claim. The Lockes contend the holding' was that Hogan could not have been negligent because it owed no duty to passing motorists not to erect or maintain on its property items which would obstruct their view. There would have been no need for the discussion of intervening causation if we had concluded Hogan had no duty to the drivers. On the other hand, our language referring to Hogan’s gravel pile, vines, brush, etc., as “circumstances” which had to be taken into consideration by the drivers supports the conclusion that Hogan owed no duty to them.
In his brief, Mr. Driggers acknowledges that “there is no common law duty imposed upon a landowner to control the vegetation on his property for the benefit of users of a public highway,” quoting Krotz v. CSX Corp., 115 A.D.2d 310, 496 N.Y.S.2d 190 (A.D.4 Dept. 1985). See William J. Appel, Annotation, Liability of Private Landowner for Vegetation Obscuring View at Highway or Street Intersection, 69 A.L.R.4th 1092 (1989). But he cites other cases from other jurisdictions which he purports to have rejected the common law rule, and contends the number of states which follow it is “shrinking.”
Mr. Driggers’ primary citation in support of the trend he sees away from the common law rule is Sprecher v. Adamson, 30 Cal.3d 358, 178 Cal. Rptr. 783, 636 P.2d 1121 (1981). There the California Supreme Court does, as Mr. Driggers says, point out that some 13 jurisdictions have held a landowner liable for a natural, as opposed to artificial, condition resulting in injury to a person or property off the landowner’s premises. The cases are not helpful here, however. The Sprecher case involved a natural landslide which physically injured a neighbor’s property. It was held that the owner of the land had a duty to take reasonable actions to check the landslide. The California Court noted that all the cases from the other 13 jurisdictions had to do with trees falling off the landowners’ premises. Those cases are nothing new, and they comport with the view expressed in the Restatement (Second), Torts, § 363(2), which states, “A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.” Comment e. to that section makes it clear that the danger contemplated is that resulting not from the presence of the trees but from their condition, i.e., the probability that they may break and fall on the highway. See also Prosser and Keeton on Torts, § 57 (5th ed. 1984).
There are cases which have held a landowner liable for obstructing the view of motorists. Mr. Driggers cites a reported decision of a Delaware trial court denying summary judgment on the ground that there is such a duty. A defendant in possession of the land had planted corn up to the shoulder of a rural road at an intersection. As one basis of possible liability, the Court held in favor of the plaintiff with respect to the claim that a covenant specifically restricting those in possession of the land from obstructing the view of the roadway was binding. With respect to the duty, generally, the Court denied the summary judgment motion of the possessor of the land on which the corn grew, citing Restatement (Second) of Torts, § 371. Restatement § 371 provides that:
A possessor of land is subject to liability for physical harm to others outside of the land caused by an activity carried on by him thereon which he realizes or should realize will involve an unreasonable risk of physical harm to them under the same conditions as though the activity were carried on at a neutral place.
We have some doubts about the propriety of citing that section in support of a duty not to obscure view because the illustrative examples provided in the accompanying comment b. all have to do with the activity of burning something on the land and causing smoke to invade the highway. Another reservation we would have about relying on this case in support of departing from the common law rule is that the Court’s opinion does not mention the rule. We have no way of knowing if it was even argued in the case.
Mr. Driggers also cites decisions from courts of appeals in which the duty in question was found to exist, but in none of them was there a discussion or specific rejection of the acknowledged common law rule to the contrary. See Wright v. Travelers Ins. Co., 288 So.2d 374 (La. App. 1974); Hamric v. Kansas City So. Ry. Co., 718 S.W.2d 916 (Tex. App. 1986); Harvey v. Hansen, 445 A.2d 1228 (Pa. Sup. 1982). Perhaps the most persuasive of these cases is Langen v. Rushton, 360 N.W.2d 270 (Mich. App. 1985), in which the Court said, “We cannot subscribe to a rule of law which would relieve the modern urban landowner from responsibility for foreseeable consequences caused by activity which poses an unreasonable risk of harm.” The case involved alleged liability of the owner of a shopping center for maintaining a tree obscuring the view of drivers exiting the parking lot. There again, however, the authority cited was Restatement § 363, which we do not, as mentioned above, consider to be applicable.
The policy reasons in favor of the common law rule have been stated in terms of the unreasonableness of the burden placed on landowners to know when vegetation may be such as to cause a hazard to motorists and to trim or remove the vegetation in a manner so as to remove the hazard. In Pyne v. Witmer, 512 N.E.2d 993 (Ill. App. 2 Dist. 1987), the Illinois Appellate Court held that Illinois statutes dealing with nuisances created by landowners imposed no duty to control foliage in such a manner as to not impede the view of motorists at intersections. The Court concluded, in response to the allegation of a common law duty, as follows:
. . .we conclude, in the absence of a statutory directive to the contrary, that there is no duty in Illinois on a land owner to remove foliage on his property so that motorists approaching an intersection can see other intersecting motorists. Considering the burden such a duty would impose on private property owners, we leave the imposition of such a duty to the legislature.
This same sort of policy balancing occurred in Fritz v. Parkison, 397 N.W.2d 714 (Iowa 1986), in which the Iowa Supreme Court considered whether a landowner had a duty to remove trees which obscured the view of motorists rounding a curve in the highway. Here are some of the Court’s remarks:
While Norton’s trees may have required drivers to proceed with some additional degree of caution, the trees could not reasonably have been expected to pose any significant threat to motorists operating their vehicles in a reasonably prudent manner, and clearly could not be characterized as an unexpected occurrence like a falling limb or a gaggle of geese.
Ordinarily a landowner in Norton’s position would have no expertise in determining what does or does not constitute sufficient visibility or in concluding what steps would be required to select offending trees.
The Court, after mentioning a public policy favoring the planting of trees and considering the costs to landowners of attempts to assure appropriate visibility for motorists and the uncertainty they would have to endure, concluded that “the county and the motorists are in a much better position to take precautions sufficient to minimize any danger.”
No doubt cities, counties, and states can purchase rights of way sufficient to allow for foliage removal in connection with the maintenance of safe curves, intersections, and road shoulders, applying the expertise necessary to see to their safety. Like the Iowa Court, we decline to reject the common law rule or, absent legislation to the contrary, place the burden of public safety on those whose properties abut public streets and highways.
Affirmed.
Dudley and Glaze, JJ., dissent. | [
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Robert L. Brown, Justice.
Appellant Samuel Willie Oliver raises two points in his appeal of four convictions for delivery of crack cocaine. He first contends that he was deprived of effective assistance of counsel and did not waive such. He, secondly, urges that his due process rights were violated owing to lack of information about the arresting officer’s medical condition. Neither point has merit, and we affirm.
Samuel Oliver was charged with four counts of delivery of crack cocaine. The State’s principal witness was an undercover investigator, Thomas Washington, who made the four drug purchases from Oliver. Officer Washington later became ill. He originally suffered from environmental encephalitis and multiple brain aneurysms. He also suffered from sarcoidosis, a disease in which lesions develop throughout the body. Oliver tried to discover Officer Washington’s medical records, and his request was denied by the trial court.
Prior to trial, Oliver retained four different attorneys for his defense, and each one was terminated at his request. The last termination of counsel occurred at the omnibus hearing before trial commenced, where Oliver announced his intention to proceed pro se. The following colloquy occurred between Oliver and the trial court:
SAM OLIVER: I’m doing my own pro se.
JOE OLIVER: He’s doing his own pro se.
SAM OLIVER: I filed my own motions already.
JOE OLIVER: And he subpoenaed —
SAM OLIVER: Thomas Washington.
JOE OLIVER: — Thomas Washington, and we have a copy of the subpoenas right here, both of them.
COURT: Well, I’ve got to — to recommend you not do this, Mr. — both Mr. Olivers, you know.
SAM OLIVER: I want to represent —
COURT: You’re proceeding by yourself and think you’re — as I’ve told you before, I think that dangerous to do that.
COURT: Well, I can’t force you to have an attorney. You see, I can’t force one on you and I think it’s against your better interest to do that, but I can’t make you —
SAM OLIVER: I’m prepared —
COURT: — have an attorney.
SAM OLIVER: I’m prepared for the case today.
COURT: At the trial of this case, I will still have an attorney sitting at the counsel table in case you need one.
SAM OLIVER: No, I don’t think so, Your Honor, ‘cause —
COURT: Well, I think so we will. We will have an attorney sitting at the counsel — you don’t have to use him.
COURT: You can ignore him. That’s your preroga^ tive, but there will be one available for you.
Okay, Mr. Smedley, [attorney], I’m going to relieve you. These gentlemen don’t want your services.
SMEDLEY: Thank you.
COURT: That’s against my advice, once again for the record, —
SMEDLEY: It’s against my advice, too.
COURT: — but they don’t have to — they don’t have to have an attorney.
The trial court permitted Oliver to proceed pro se, and standby counsel played an active role in the trial. Oliver was found guilty on all four counts and received a cumulative sentence of twenty years. He appealed his conviction on the basis of insufficiency of the evidence, and the Court of Appeals upheld it in an unpublished opinion. Denial of counsel was not an issue on appeal.
Oliver next filed a petition for relief under Ark. R. Crim. P. 37. He alleged in his petition that he was denied his Sixth Amendment right to an attorney and was forced to proceed pro se. He also alleged that the State withheld essential evidence (Washington’s medical history) in violation of Ark. R. Crim. P. 17 and Brady v. Maryland, 373 U.S. 83 (1963), which effective counsel would have obtained. A hearing was held and following that proceeding, the trial court denied the petition and made the following finding, among others:
5. The defendant was not denied the effective assistance of counsel. The defendant knowingly and voluntarily elected to proceed to trial pro se after being cautioned extensively about doing so by the court. Competent counsel was nonetheless appointed to accompany defendant to trial, was available throughout trial and to the extent called upon by the defendant performed competently and effectively.
No specific ruling was made on whether failure to obtain Officer Washington’s medical records constituted ineffective counsel. Oliver now appeals.
For his first point, Oliver argues that the trial court erred in failing to conduct an inquiry into his financial condition in connection with his ability to hire counsel and, thus, deprived him of the right to have appointed counsel. The State’s initial response is that this argument is procedurally barred because (1) it could have been raised on direct appeal, and (2) it is not an argument cognizable under Rule 37.
This court has previously considered Rule 37 appeals dealing with the issue of denial of counsel. See Costillo v. State, 292 Ark. 43, 728 S.W.2d 153 (1987) (direct appeal not perfected); Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986) (direct appeal not perfected); Leak v. Graves & State, 261 Ark. 619, 550 S.W.2d 179 (1977). Here, Oliver’s argument is that had the trial court inquired into his financial condition, counsel might well have been appointed for him at no expense. The implication is that he did not know that he might qualify for counsel as an indigent, and the inquiry by the court would have alerted him to that fact.
We are troubled by the fact that the denial of counsel under the Sixth Amendment is an issue more appropriately raised on direct appeal. See, e.g., Deere v. State, 301 Ark. 505, 785 S.W.2d 31 (1990). We can perceive of no good reason for permitting a defendant to pursue a direct appeal on unrelated grounds while saving denial of counsel for Rule 37 relief and as “insurance” in the case of an adverse appellate decision. In this case, Oliver knew what his counsel status was at trial and to the extent his Sixth Amendment rights were impaired, this should have been raised on direct appeal. Instead, Oliver contended in his direct appeal that evidence was insufficient for his conviction. This scenario should not be allowed to transpire. We hold that the issue of denial of counsel must be raised on direct appeal or be waived.
By the same token, the caselaw cited above more than suggests that denial of counsel may be raised in a Rule 37 petition. To the extent the cases stand for this proposition, Costillo v. State, 292 Ark. 43, 728 S.W.2d 153 (1987); Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986); and Leak v. Graves & State, 261 Ark. 619, 550 S.W.2d 179 (1977) are overruled.
In overruling these cases, we must consider whether our requirement that this issue be raised on direct appeal should be applied prospectively. We have held that when our cases appeared to go both ways on when an appeal from a denial of a motion to transfer to juvenile court should be taken, it would be unconscionable to deny or foreclose an appellant the right to appeal. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 897 (1995). We conclude that fairness dictates a prospective application of our holding. Oliver could justifiably have relied on the cases now overruled. See Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986). Recently, we overruled caselaw which had held that failure to preserve the issue of insufficiency of the evidence was not grounds for Rule 37 relief. See Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995) (per curiam). We applied the Thomas decision prospectively. We do the same in the case before us.
We next turn to the merits of Oliver’s first point. The Sixth and Fourteenth Amendments to the United States Constitution guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before that person can be validly convicted and punished by imprisonment. Faretta v. California, 422 U.S. 806 (1975); Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995); Kincade v. State, 303 Ark. 331, 796 S.W.2d 580 (1990). It is also well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. Faretta v. California, supra; Daniels v. State, supra; Deere v. State, 301 Ark. 505, 785 S.W.2d 31 (1990). But every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Daniels v. State, supra; Kincade v. State, supra; Philyaw v. State, supra. The burden is on the State to show that an accused voluntarily and intelligently waived his fundamental right. Daniels v. State, supra; Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989). Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Daniels v. State, supra; Gibson v. State, 298 Ark. 43, 764 S.W.2d 617, cert. denied 491 U.S. 910 (1989).
Oliver claims that he did not voluntarily and intelligently waive his right to counsel. He was forced to go to trial pro se, he contends, because he could not afford another attorney and because the trial court failed to inquire into his financial condition or to inform him that he could have had counsel appointed. This court stated in Kincade v. State, supra, that the trial court must inquire of an accused’s ability to retain counsel, and if the accused is an indigent, counsel must be appointed for him. Ark. R. Crim. P. 8.2. The trial court must do more than just make an inquiry. The court must explain to the accused that he is entitled, as a matter of law, to an attorney and must question him to see if he can afford to hire counsel. Gibson v. State, supra.
The present case exhibits deficiencies in the necessary inquiry into the risk of Oliver’s representing himself. Certainly, Oliver’s financial capability to hire counsel was not explored. But one paramount feature distinguishes this case. Oliver had standby counsel throughout his trial who not only advised him but who actively represented him during most of the proceeding. With the exception of the initial cross-examination of Thomas Washington, standby counsel cross-examined each state witness. Counsel also made objections during the State’s case and presented the motion for directed verdict following the State’s case. As part of Oliver’s defense, counsel recalled Officer Washington as his first witness and examined him, as well as the remaining six defense witnesses. Counsel also made the closing argument. Thus, it appears that early on in his trial, Oliver effectively relinquished representation to his standby counsel.
In short, this is not a case where standby counsel did nothing. See Kincade v. State, supra; Philyaw v. State, supra. Rather, the situation bears some similarity to Calamese v. State, 276 Ark. 422, 635 S.W.2d 261 (1982), which offers some guidance. In Calamese, after three continuances to allow the defendant to retain counsel, the trial court proceeded to trial, though the defendant was without counsel. The court appointed two attorneys to assist the defendant on the morning of the trial. Though the defendant was convicted, counsel performed an active role at trial. The defendant argued on appeal that the record did not reflect a voluntary or intelligent waiver. We stated:
It is true there is nothing in the record showing the trial court made any inquiry into appellant’s attempted waiver of counsel, and if she had been permitted to act as her own counsel we would be hard-pressed to deny the argument, as the State has the burden of showing a voluntary and intelligent waiver of counsel. Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970), and United States v. Dujanovic, 486 F.2d 182 (1973). But we are unwilling to sustain the argument where the appellant was not left to represent herself, but was capably represented throughout the trial. Nowhere in the record does it appear that she was called on to represent herself or left unrepresented at any stage of the proceedings, trial or pretrial. Thus, the only conceivable impediment to the appellant is the fact that trial counsel were appointed for her on the morning of trial. However, no argument is offered on that score and in view of the repeated opportunities given her to employ her own counsel, which she had the means and disposition to do, we find no prejudicial error mandating another trial. The circumstances of each case must be examined in their entirety in determining whether a defendant has been adequately represented and on that basis we can reject appellant’s argument. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975); Jackson v. State, supra; Johnson v. Zerbst, 304 U.S. 458 (1938).
Calamese, 276 Ark. at 425, 635 S.W.2d at 262.
It is true that here, unlike the situation in Calamese, Oliver testified at the Rule 37 hearing that he had no money to hire another attorney. He also cross-examined the first State witness himself. But following that, he took full advantage of his standby counsel by allowing him to examine witnesses, make motions and objections, and conclude with a closing argument. We admit to having serious concerns about standby counsel’s being appointed the day of the trial and, thus, having no knowledge of the case, which was also the situation in Calamese. And, as already noted the failure of the trial court to inquire into Oliver’s financial ability to hire counsel was error. Nonetheless, offsetting these concerns are two facts — (1) Oliver was adamant in wanting to proceed pro se, making no reference to a destitute status, and (2) counsel did more than stand by but, rather, provided active representation. There is, too, the consideration that an accused has the constitutional right to represent himself, which Oliver invoked. Under the totality of these circumstances, though the trial court erred in not inquiring into Oliver’s financial situation, we would be hard put to hold that Oliver was denied his right to counsel or that the trial court’s finding on this point, following a Rule 37 hearing, was clearly erroneous. See Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995); see also Wolfs v. State, 255 Ark. 97, 498 S.W.2d 878 (1973).
This case differs from our recent holding in Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995). In Daniels, the defendant had elected to represent himself with standby counsel available. After the State called its first witness, Daniels was removed from the courtroom, and his former counsel went to the trial judge’s chamber and did not participate in the trial. We observed that Daniels was not represented at his trial, and there was no proof of an appropriate waiver. We further emphasized that no inquiry into the risks of proceeding pro se had been made. We held that it was error for Daniels to represent himself without the proper inquiry by the court. Though not determinative, we also took note of the fact that the State conceded error due to absence of counsel. Those facts are far different from what we have before us today.
Oliver next contends that his defense was hampered because the State had not furnished him information of Officer Washington’s medical condition pursuant to his motion and as Ark. R. Crim. P. 17 requires. He argues that both retained counsel and standby counsel were not effective in pursuing this matter. We need not address this point. The trial court did not specifically rule on this issue when denying the petition for Rule 37 relief, and we cannot determine from the court’s order whether it was considered or decided. It was Oliver’s obligation to obtain a ruling on this point in order to preserve the issue for appeal. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). This was not done.
Affirmed.
Dudley and Newbern, JJ., dissent. | [
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Robert L. Brown, Justice.
This appeal by Lee Douglass, Commissioner of the Arkansas Insurance Department, and the Arkansas Insurance Department itself (collectively referred to as Department), focuses on whether an insurance company may unilaterally rescind coverage based on fraud or material misrepresentations by the insured after a loss has occurred, when no third-party claims are involved. According to a Memorandum of Decision and Declaratory Order by the Department, rescission by an insurance company may only transpire when the company (1) seeks declaratory relief from a court of competent jurisdiction, or (2) obtains consent from the insured and any affected third parties. The circuit court reversed the order of the Department. On appeal, we affirm the circuit court’s order.
The relevant facts are found in a complaint filed jointly by appellees Nationwide Mutual Insurance Company and State Farm General Insurance Company against appellant Department. On April 26, 1993, State Farm issued a binder of coverage for renter’s insurance to Donna J. Carter and Michael Beirne based on representations submitted in their application for insurance. On May 12, 1993, a claim for theft loss was presented for payment under the policy. During State Farm’s investigation into the claim, it discovered that Carter and Beirne had experienced a theft loss three days prior to submitting their application for insurance. In the application, they had reported that no losses had been experienced in the past three years. State Farm alleged that it would not have issued the policy, if the truth had been known. Apparently, State Farm rescinded the policy and returned paid premiums to the insureds on or about July 20, 1993, but it is not altogether clear precisely when this occurred. Also on July 20, 1993, Donna Carter filed her complaint with the Arkansas Insurance Department.
On the same day that Carter filed her complaint, the Insurance Commissioner issued the following Memorandum of Decision and Declaratory Order:
The Arkansas Insurance Department (“Department”) has in the past several months received numerous consumer complaints regarding property and casualty insurance carriers unilaterally voiding insurance contracts ab initio for alleged material misrepresentation. The Department has received a request for declaratory order to articulate its position on this matter. As this raises an issue of great public importance, this order is being issued.
In Ferrell v. Columbia Mutual Insurance Casualty Company, 306 Ark. 533, 816 S.W.2d 593 (1991), the Arkansas Supreme Court rendered an opinion relevant to this order. The court opined that when an innocent third party has suffered damages as a result of an insured’s negligence, the insurer cannot rescind coverage retroactively based on the grounds of fraud or misrepresentation under a compulsory automobile insurance or financial responsibility law. Prospective cancellation was the only appropriate remedy the Ferrell court reasoned. Additionally, it was held that where in an application for non-compulsory coverage there were misrepresentations of material facts the knowledge of which would have caused the insurer to decline to issue the policy, rescission was the proper remedy.
The issue before the Department is, “Under what circumstances . . . will such an insurer be permitted to rescind a policy?” As recognized in Ferrell, cancellation is a prospective remedy and is based upon the insurer’s contract rights or rights under statute, while rescission is an equitable, common law remedy which voids the contract ab initio. An insurer may not purport to unilaterally rescind a policy ab initio, and such actions of an insurer violate Arkansas insurance laws and constitute an unfair trade practice under Ark. Code Ann. § 23-66-205, § 23-66-206, and § 23-89-301 et seq. Rescission of a policy may only be properly accomplished with consent of the insured policy owner and any third parties in whom rights may have vested, or by seeking declaratory relief in a court of competent jurisdiction.
In a letter dated July 29, 1993, the Department notified State Farm of Carter’s complaint and directed State Farm to respond. According to the letter, failure to respond could result in a finding of an unfair trade practice and result in the imposition of a fine up to $10,000. On August 6, 1993, State Farm responded and described the material misrepresentations by Carter and Beirne. On December 9, 1993, the Department informed State Farm that, pursuant to its order, State Farm could not unilaterally rescind the policy.
The second claim in the filed complaint involves Nationwide Mutual Insurance Company. On June 10, 1993, Nationwide bound coverage on an automobile policy for Trischia Gos-tony and Christopher M. Stefanik. In the application, Gostony stated that no one in the household had had any motor vehicle violations in the last five years. The insureds subsequently filed a claim with Nationwide for an accident which occurred on July 4, 1993. Motor vehicle reports later revealed that Stefanik had received seven violations within the last three years. On July 9, 1993, Nationwide rescinded its policy and returned the premiums to its insureds. On August 12, 1993, Gostony filed a complaint with the Department and the Department later notified Nationwide of that complaint. The letter, dated August 20, 1993, directed Nationwide to respond to the complaint or suffer potential penalties up to $10,000. Nationwide responded and asserted that it would not have issued the policy but for the material misrepresentations. Relying on its order, the Department informed Nationwide that it had improperly rescinded the policy.
In a letter dated February 14, 1994, the Department advised State Farm and Nationwide that their actions were not in accord with Arkansas law. On March 11, 1994, Nationwide and State Farm filed their complaint for Declaratory Judgment and Request for Stay of the Department’s Order in circuit court.
On September 9, 1994, the circuit court conducted a hearing and heard arguments and subsequently filed its Memorandum Opinion and Order. After a detailed analysis, the court rendered the following conclusions and order:
Based on the foregoing, the court hereby declares that an insurer may exercise its common law right to rescind an automobile insurance policy or any other type of property and casualty insurance policy without obtaining the consent of the insured or a declaratory judgment. This common law right of unilateral rescission may be exercised at any time before or after a claim is made by an insured when it is discovered that the insured procured the insurance policy through fraud or misrepresentation as long as the insurer notifies the insured of the decision promptly upon discovery of the fraud or misrepresentation and the insurer returns all premiums paid by the insured.
Accordingly, the Court FINDS, DECLARES, AND ORDERS that plaintiffs’ complaint for declaratory judgment should be and is hereby granted, that the commissioner’s order, A.I.D. No. 93-39, should be and is hereby reversed, and that an insurer may exercise its common law right of unilateral recision as set forth herein.
I. Ripeness
For its first point on appeal, the Department contends that the trial court erred in finding that it had jurisdiction to determine whether an insurer could unilaterally rescind any type of property and casualty insurance policy before or after a loss. See Ark. Code Ann. §§ 23-62-104, 23-62-105 (Repl. 1994). The Department argues that the only issues ripe for determination were whether Nationwide could unilaterally rescind the specific automobile policy after a loss and whether State Farm could unilaterally rescind the renter’s policy after a loss. All other matters were contingent, remote, and speculative, according to the Department.
We initially observe that the Commissioner’s order was rendered in response to a request for a declaratory order concerning the right of insurers to rescind their policies ab initio and represents final agency action. Declaratory orders are contemplated under the Administrative Procedure Act and have the same status as agency orders in cases of adjudication. Ark. Code Ann. § 25-15-206 (Repl. 1992). Judicial review of administrative adjudications in circuit court is provided under Ark. Code Ann. § 25-15-212 (Repl. 1992). We further observe that the Administrative Procedure Act provides for petitions for declaratory judgment in circuit court concerning the validity of agency rules that threaten to injure the petitioner. Ark. Code Ann. § 25-15-207 (Repl. 1992); McCuen Burial Ass’n v. Arkansas Burial Ass’n Bd., 298 Ark. 572, 769 S.W.2d 415 (1989); see also Travelers Indem. Co. v. Olive’s Sporting Goods, Inc., 297 Ark. 516, 764 S.W.2d 596 (1989). The instant case concerns review of a declaratory order by the agency rather than a rule. However, with respect to the issue of ripeness and the threat of injury we see no legitimate distinction between judicial review of an agency rule and judicial review of a declaratory order by the agency.
The Department advised State Farm and Nationwide in the wake of their unilateral rescissions that failure to respond to the complaints of the insureds would be considered an unfair trade practice which could result in sanctions of up to $10,000 under the Trade Practices Act. See Ark. Code Ann. §§ 23-66-201 to 408 (Repl. 1994). In addition, the Commissioner’s order alludes to the same penalties for unilateral rescissions by insurance carriers respecting any type of property and casualty insurance. Thus, it appears manifest that the threat of sanctions for failure to comply with any aspect of the Commissioner’s order was imminent. It stands to reason that when a rule (or declaratory order) has a direct effect on the day-to-day business operations of an insurance company and places that company in a dilemma regarding the full range of property and casualty insurance, the issue is a fit subject for judicial review and a petition for declaratory relief. See Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). The Abbott conditions were satisfied in the case before us. Accordingly, the Commissioner’s order, as it affected any type of property and casualty insurance written by State Farm and Nationwide, was ripe for determination and subject to review.
II. Unilateral Rescission
The essential point in this appeal is whether State Farm and Nationwide could unilaterally rescind their policies after a loss when no third parties were affected and when the insureds materially misrepresented the facts in their applications for insurance. The circuit court, initially, made it perfectly clear at the hearing that no third-party claims were involved in this matter:
THE COURT: Number one, so that we all are playing on the same level field, we are only talking about first party claims here, we are not talking about third party claims. Everybody agrees to that?
MS. DENHAM (ATTORNEY FOR DEPARTMENT): Yes, sir.
The Department argues, however, that either consent of the insured or judicial action is necessary before unilateral rescission for fraud may occur. We disagree, in the absence of innocent third parties.
In Ferrell v. Columbia Mut. Cas. Ins. Co., 306 Ark. 533, 816 S.W.2d 593 (1991), this court addressed whether the statute setting out the method for prospectively cancelling an automobile insurance policy had abrogated an insurance company’s common law right to rescind an automobile policy ab initio. Ferrell, 306 Ark. at 534-535, 816 S.W.2d at 594. In that case, Ferrell had made numerous misrepresentations to his insurance agent when filling out the application for his family’s auto insurance policy, including the failure to list his family’s traffic violations and accidents. After coverage was bound, Ferrell’s daughter ran a stop sign and was hit by another car. She immediately notified her insurance agent. A week later, the insurance company rejected the binder due to the driving records of the Ferrell children. On February 18, 1988, the insurance company, without knowledge of the wreck, refunded the entire premium and notified Ferrell that it was rescinding the policy ab initio. This court observed in Ferrell that all courts that have considered the question as it relates to third-party claimants have held that insurers cannot unilaterally rescind their contracts on grounds of fraud or misrepresentation. But we went on to say that because no third- party claimants were involved in the case and the case involved only the insured’s property, there was no public policy reason to hold that an insurer’s common law right to rescind for fraud was abrogated.
During the session of the General Assembly that followed the Ferrell decision, the Ferrell reasoning was adopted in Act 457 of 1993, now codified at Ark. Code Ann. § 23-89-303(e) (Supp. 1993), which relates to automobile liability coverage:
(e)(1) However, an insurer shall not be able to rescind bodily injury or property damage liability coverage under an insurance policy for fraud or misrepresentation with respect to any injury to a third party when suffered as a result of the insured’s negligent operation of a motor vehicle.
(2) Nothing in this subsection is intended to negate an insurer’s right to rescind other coverages in the insurance policy purchased by the insured.
The cases cited by the Department in support of its argument that unilateral rescission may not transpire stand for the proposition that a contract may be rescinded by mutual agreement. See Standard Abstract & Title Co. v. Rector-Phillips-Morse, Inc., 282 Ark. 138, 666 S.W.2d 696 (1984); Wheatley v. Drennen, 209 Ark. 211, 189 S.W.2d 926 (1945); Duty v. Keith, 191 Ark. 575, 87 S.W.2d 15 (1935). However, none of the cases adduced stands for the proposition that mutual consent or court action is required for a rescission at law based on fraud.
In the insurance treatise, Couch on Insurance, the author recognizes the right of the insurance carrier to rescind or repudiate a contract based on the insured’s fraud:
There tends to be some confusion in the cases because of the use of the term “rescission” without distinguishing between a judicially sought rescission and a unilateral rescission or repudiation. When the insurer asserts that it is not liable on the contract because it rescinds the contract because of insured’s fraud, the insurer is repudiating the contract, and unless justified in so doing is guilty of breach of its contract.
17 Couch on Insurance 2d § 67:314, p. 743 (1983).
In Arkansas, rescission of a contract at law is accomplished by the rescinding party’s tendering the benefits received to the contracting party, and the courts have nothing to do with the repudiated transaction. See Savers Fed. Savings & Loan Ass’n v. First Fed. Savings & Loan Ass’n, 298 Ark. 472, 768 S.W.2d 536 (1989), quoting with approval Dan B. Dobbs, Pressing Problems for the Plaintiffs Lawyer in Rescission: Election of Remedies and Restoration of Consideration, 26 Ark. L. Rev. 322 (1972). But one who desires to rescind a contract on grounds of fraud or deceit must do so as soon as that person discovers the truth. See Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980), reh’g denied, 267 Ark. 592, 595 S.W.2d 647 (1980). We stated in Herrick that the rescinding party must announce his purpose at once and act with reasonable diligence so that the parties may be restored to their original position as nearly as possible. Id.
Hence, rescission of a contract at law occasioned by fraud may be accomplished without court action but by a prompt restoration of benefits to the contracting party and by a clear statement that rescission of the agreement is what is intended. Maumelle Co. v. Eskola, 315 Ark. 25, 865 S.W.2d 272 (1993); Herrick v. Robinson, supra. The contracting party then has the option of suing for breach of contract. The circuit court applied these general contract principles to the matter at hand, and we hold that it was correct in doing so.
While we uphold the right of an insurance company to rescind coverages based on fraud by the insured without consent of the insured or a declaratory judgment, we underscore the point that this right is unavailable when third-party claims are at issue. Other jurisdictions have likewise referred to these public policy considerations. See, e.g., Klopp v. Keystone Ins. Cos., 595 A.2d 1 (Pa. 1991) (concurring opinions); United Security Ins. Cos. v. Commissioner of Ins., 348 N.W.2d 34 (Mich. App. 1984). In Klopp, a husband and wife, as insureds, sought to prevent an insurance carrier from unilaterally rescinding an automobile policy due to material misrepresentations in the application concerning past accidents. The trial court denied the carrier the right to rescind, but the Pennsylvania Supreme Court reversed. The Court referred to a Pennsylvania statute which limited a carrier’s ability to cancel coverage 60 days after issuance of the policy but concluded that the legislature did not intend to abrogate the carrier’s rescission rights within that same 60-day period. Two concurring opinions emphasized the necessity for protecting the rights of innocent third parties and noted that third-party claims were not at issue in that case.
In United Security Ins. Co. v. Commissioner of Ins., supra, the Michigan Commissioner of Insurance prevented an insurance carrier from rescinding an automobile policy based on intentional misrepresentations in the application by the insured. The trial court reversed the Commissioner’s order, and the Court of Appeals affirmed, holding that common law rescission for fraud was still a right retained by insurers. The Court took pains, however, to assure that rescission was not appropriate when third-party claims were involved:
We emphasize that the person making the claim under the insurance policy here is the insured who made the intentional material misrepresentations; this is not a case in which the claimants are innocent third parties.
United, 348 N.W.2d at 36.
In the case before us, the circuit court made clear by its questioning to counsel that third-party claims were not at issue. We, accordingly, read the circuit court’s order of reversal as being solely limited to matters where third-party rights are not impacted.
There is, next, the issue of whether unilateral rescission for fraud may occur after the 60-day period from issuance of the insurance policy set out in the cancellation statutes for automobile insurance. See Ark. Code Ann. §§ 23-89-303, 23-89-304 (Repl. 1992 & Supp. 1993). The Department is correct that Ferrell v. Columbia Mut. Ins. Cas. Co., supra, concerned a rescission made within 60 days and that these statutes apply only to automobile liability insurance. Nonetheless, § 23-89-303(e)(2) does not limit the right to rescind to a particular time frame; nor does any other statute. As a result, we decline to apply the 60-day period specified in the cancellation statutes as a limitations period for rescission based on fraud without clearer direction from the General Assembly.
The Department also disagrees with the circuit court’s policy rationale for reversing the Commissioner’s order. The language used by the court was that it was “expeditious, cost-effective, and fair” to permit unilateral rescission. The court’s policy justifications for deciding as it did do not represent grounds for reversal.
Affirmed.
Jesson, C.J., not participating.
The Department did not raise the promptness of the rescission by State Farm as an issue in this appeal. | [
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Andree Layton Roaf, Justice.
Appellant Thomas Roy Passley, Jr., was convicted of eleven counts of residential burglary and nine counts of theft of property for crimes committed over a two day period. He was sentenced as an habitual offender to eighty years imprisonment. On appeal, Passley asserts that the trial court (1) abused its discretion in failing to sever the March 15, 1994, burglaries from the March 16, 1994, burglaries, (2) abused its discretion by allowing the introduction of a tape of a “911” call in violation of A.R.E. Rule 403, and (3) erred in failing to grant Passley’s motions for directed verdict. We affirm.
Ms. Peggy Swingel testified that at approximately 1:50 p.m. on March 16, 1994, someone began ringing her doorbell, but she did not answer the door. Subsequently, someone began kicking the back door. She entered her living room in order to reach a cordless telephone, and she could see that someone was in her kitchen. She called “911,” and the intruders left her home. She reported that two men just left her home in a gray or blue-gray car, possibly a Thunderbird. Jovey Marshall of the Washington County Sheriff’s Office testified that he received the “911” call at approximately 1:50 p.m. and a Thunderbird was stopped at approximately 1:54 p.m.
Morton Marshall, Farmington Chief of Police, was dis patched in response to the call and he encountered a blue Thunderbird. Chief Marshall pursued the vehicle and observed that there were two women and two men in the vehicle. After the vehicle stopped, the two men escaped. Co-defendants Michelle Vincent and Tammy Johnson a/k/a Lisa Faye Bradish were apprehended in the Thunderbird. The two men, the appellant and Warren (Morn) Franklin Passley III, were captured approximately ten minutes later.
The appellant a/k/a Douglas Lee Bolkema and the three co-defendants were charged by felony information with thirteen counts of burglary and twelve counts of theft of property. The crimes were allegedly committed on February 7, 1994, March 4, 1994, March 15, 1994, and March 16, 1994. The information alleged that the defendants entered homes on February 7 and March 4 and took property valued in excess of $2,500.00. The information provided that on March 15 the defendants burglarized six homes and on March 16 the defendants burglarized four homes. Further, the information alleged that the defendants took property valued in excess of $2,500.00 from five of the homes; property valued in excess of $200.00 from three of the homes; and property valued at less than $200.00 from two of the homes. Finally, the information charged the defendants with burglary for entering the home of Peggy Swingel on March 16.
The Thunderbird in which the defendants were riding was owned by Tammy Johnson, the appellant’s wife. A number of items from the burglaries committed on March 15 and March 16 were found either in pillow cases in the trunk of the car or in the possession of the defendants. A ring, watch, and knife were found on the appellant when he was apprehended. The ring was identified as one taken in a March 16th burglary, and the knife and watch were identified as taken in a March 15th burglary. Property taken on those dates from seven other homes was also recovered from either the Thunderbird or the co-defendants.
Mrs. Marjie Million testified that Tammy Johnson is her niece. Mrs. Million further testified that Tammy Johnson, Thomas Roy Passley, Jr., Warren Franklin Passley III, and Michelle Vincent stayed in her home on March 15 and March 16, 1994. A Ford Mustang owned by Warren Passley was recovered from the Million residence. Property belonging to victims of both the March 15 and March 16 burglaries was recovered from either the Mustang or the Million’s residence.
Ms. Swingel identified Tammy Johnson’s Thunderbird as the vehicle that she observed the day her home was burglarized. She further testified that she could identify Warren Passley as one of the intruders, but she did not get a good look at the second person. Deputy Sheriff Charles Rexford testified that the tread patterns on the appellant’s shoes were similar to the print observed on the door of Ms. Swingel’s residence.
The jury found the appellant not guilty of the crimes allegedly committed on February 7 and March 4. Further, the trial court refused to instruct the jury regarding the theft of property charge arising out of the burglary of Kirk Cunningham’s residence. The jury, however, found the appellant guilty on the twenty remaining charges.
1. Sufficiency of the evidence
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). Preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). Consequently, we address appellant’s challenge to the sufficiency of the evidence prior to considering his other assignments of trial error. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).
On appeal, the appellant contends the “record is void of evidence physically placing him in any of the homes” and there is no evidence that he “knowingly possessed any of the victims’ property with the intent to deprive them thereof.” When reviewing the sufficiency of the evidence on appeal, we do not weigh the evidence but simply determine whether the evidence in support of the verdict is substantial. Williams v. State, supra. Substantial evidence is that which is forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion and conjecture. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Williams, supra. Further, circumstantial evidence may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Id.
The jury was given, without objection, an accomplice liability instruction. See AMCI 2d 401. Arkansas Code Annotated § 5-2-403(a) (Repl. 1993) provides that a person is an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in commission of the offense. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). Under the accomplice liability statute, a defendant may properly be found guilty not only of his own conduct, but also by that conduct of his accomplice; when two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Id. Finally, there is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id.
Granted, we have stated that stolen goods recovered from a dwelling shared by an accomplice is not sufficient corroboration standing alone. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). However, possession of stolen property by the accused is a proper circumstance to consider in determining whether there was evidence tending to connect him with the crimes of burglary and grand larceny. Id. Further, the presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); see also Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Finally, we have held that a person’s flight to avoid arrest may be considered as corroboration of evidence tending to establish his guilt. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994); Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992).
The proof at trial was amply sufficient to establish the joint nature of appellant’s activities with the co-defendants. The appellant was apprehended with the three co-defendants, one of whom was his wife who admitted her involvement in the crimes. The appellant was apprehended a short time after the “911” call by Ms. Swingel, and Ms. Swingel identified the vehicle in which the appellant was riding. There was testimony that the tread patterns on the appellant’s shoes were similar to the print observed on the door of Ms. Swingel’s residence. The appellant was staying in the same home as the co-defendants. At the time of his arrest, the appellant was in possession of stolen property. Further, property taken in all the burglaries, with the exception of the burglary of the Swingel home, was recovered either on the appellant, in the Thunderbird, in the Mustang, or at the Million’s residence. Finally, the appellant attempted to flee when he was confronted by the police. In short, the State was not required to prove that the appellant physically entered the home of each victim with the intent to deprive them of their property.
2. Severance of offenses
Prior to trial, the appellant moved to sever the burglary offenses on the basis that they were joined solely because they were of similar character, but they were not part of a single scheme or plan. In denying the appellant’s motion, the trial court concluded the burglaries were part of a single scheme or plan. At trial, the appellant renewed his motion for severance prior to the introduction of any testimony and again at the conclusion of the State’s evidence. On appeal, the appellant contends that the trial court abused its discretion in failing to sever the March 15, 1994, burglaries from the March 16, 1994, burglaries in violation of Ark. R. Crim. P. 22.2.
Granting or refusing a severance is a matter within the discretion of the trial court. Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). Rule 22.2 of the Rules of Criminal Procedure provides in part:
(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the . . . defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.
(Emphasis supplied.) Thus, a defendant has an absolute right to a severance of offenses joined solely on the ground that they are of same or similar character. Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994). However, in the instant case, the trial court concluded the burglaries were a part of a common scheme or plan.
The appellant contends that there is no evidence that the March 15 and March 16 burglaries were a part of a single plan or scheme. The appellant cites the cases of Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995), Clay v. State, supra, and Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), where this Court held there was no evidence of a single scheme or plan. In Clay, we noted that a single scheme or plan is discussed in the 1987 Unofficial Supplementary Commentary to Rule 21.1 which provides:
One who burglarizes an office on January 1 and a home on February 1 may be charged in the same information with both offenses, since they are “of similar character.” He would be entitled to a severance under Rule 22.2(a), however, unless the offenses were part of a single scheme or plan or criminal episode. Even though roughly the same type of conduct might be argued to be involved in both burglaries, justifying joinder under Rule 21.1(b), the term “same conduct” in Rule 21.1(b) was probably intended to be read literally to refer to contemporaneous events and to permit joinder in a situation where, for example, a defendant robs three persons simultaneously.
The appellant contends that the burglaries committed on March 15 and March 16 were not contemporaneous events and there is no evidence that the burglaries committed on March 16 were planned as part of the burglaries committed on March 15.
We hold there is a sufficient basis for the trial court’s denial of the motion for severance. In Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990), the appellant was charged with the burglary of two convenience stores located in Fort Smith. The first burglary occurred at approximately 11:20 p.m. and the second thirty minutes later. This Court concluded the proximity in time and place provided an ample base for denial of severance. In Kimberly v. State, 315 Ark. 653, 869 S.W.2d 692 (1994), the appellant was charged with attempted rape, robbery, and theft arising out of an incident with Brenda George Reed. In the same information, he was charged with attempted sexual abuse of Kimberly Lutz. The testimony revealed that at approximately 11:25 a.m. Ms. Lutz was sitting in a park when the appellant attacked her. Ms. Reed testified that, on that same day, she was attacked several blocks from the park at approximately 11:50 a.m. Once again, we concluded the proximity in time and place provided an ample basis for denial of severance.
In the instant case, six burglaries occurred during the day on March 15 and five burglaries occurred prior to 2:00 p.m. on March 16. The burglaries occurred in the same locale and during the day, they were all residential burglaries, and in each case a door was forced open. The appellant’s wife provided evidence of a scheme or plan; she testified at trial that the burglaries were committed to raise money so that “we can go to Florida and pick up my kids.” Thus, the proximity in time and place and evidence of a single scheme or plan provided an ample basis for the denial of severance. See Kimberly v. State, 315 Ark. 653, 869 S.W.2d 692 (1994).
3. Admission of “911” tape
The appellant filed a motion in limine seeking to suppress the tape of Ms. Swingel’s “911” call. The appellant asserted that the tape was not accurate because when making the call Ms. Swingel stated there were two men entering her home, but since making the call, she has stated she only assumed it was two men. Consequently, the appellant contended the prejudicial nature of the tape outweighed any possible probative value.
At a suppression hearing, the appellant argued the tape was not an accurate portrayal of the facts because Ms. Swingel was not certain if the second intruder was a man. The appellant further argued the prejudicial effect of the tape far outweighed the probative value because Ms. Swingel “obviously sounds frightened and it’s scary to listen to it.” The trial court found that the tape was relevant because Ms. Swingel provided a description of the vehicle and the police stopped Tammy Johnson’s Thunderbird in response to the call. Two men fled from the vehicle, and the appellant was apprehended within minutes. Further, the trial court found that the relevancy of the tape strongly outweighed any prejudicial effect of the tape.
On appeal, the appellant asserts that the probative value of the evidence was substantially outweighed by the prejudicial effect (1) because of the frantic tone of Ms. Swingel’s voice and (2) because the tape had no probative value since there was no dispute that someone entered Ms. Swingel’s home, she confronted them, and she dialed “911.” The appellant further submits the “911” tape is not relevant because it does not state that he was involved. Rule 403 of the Arkansas Rules of Evidence allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). This weighing is a matter left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994).
Granted, the State had clear proof that someone entered Ms. Swingel’s home without resorting to the “911” call; however, the call served to explain why the police were in the area searching for a blue Thunderbird. Further, the appellant offers no authority for how Ms. Swingel’s alleged “frantic voice” inflamed the jury. Indeed, A.R.E. Rule 803(2), excited utterance, specifically contemplates the admission of statements relating to a startling event or condition made while the person was under the stress of excitement caused by the event. In short, the appellant has simply failed to establish that the trial court abused its discretion.
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David Newbern, Justice.
Justin Wade Green turned 14 on August 4, 1994. On September 15, 1994, he telephoned the Monticello Police Department from his home. He was crying and pleading for help for his close friend, 13-year-old Jacob Stanley, who had been shot, as it turned out, fatally. Justin was charged with manslaughter in Drew Circuit Court. The portion of the manslaughter law with which he was charged reads, “A person commits manslaughter if: He recklessly causes the death of another person.” Ark. Code Ann. § 5-10-104(a)(3) (Repl. 1993). He moved to transfer the case to juvenile court. The motion was denied on the grounds that the offense charged is serious and a firearm was involved. We reverse and remand for transfer to the juvenile court.
Drew County Deputy Sheriff Cox, who participated in the police investigation of the incident, testified about the transcript of Justin’s telephone call to the police and about the immediately ensuing investigation. Through somewhat garbled questions and answers with the operator, and later in a clearer manner to investigators, Justin related that he tried to get a television remote control device away from Jacob. Justin had his father’s .357 magnum pistol. Jacob said, “What are you going to do, stupid, shoot me?” Justin replied, “No.” Jacob threw the remote control device at Justin who dropped down to avoid being struck. The gun went off, wounding Jacob in the chest.
Although Justin’s explanation, both in his initial call and later, was that the shooting was completely accidental, Deputy Cox related some circumstances raising doubts. The bullet entered Jacob’s body in a downward path, making it seem unlikely, perhaps, that Justin had fallen and Jacob was standing upright when the shot occurred. Jacob was found lying on his back rather than on his side as Justin had reported his fallen position. The remote control device was near Jacob’s body rather than near the place Justin said he had been when he went down to avoid being struck. Justin explained the latter two circumstances by saying he had kicked the remote control device across the room in anger at himself and had rolled Jacob over in an effort to help him. Although the path of the bullet in Jacob’s body remained unexplained, there was no evidence as to the position of Jacob’s body when the shot entered it.
There was evidence that Justin is fascinated with guns. He had been told not to play with his father’s pistol, but friends testified that he often got it out when they were with him and his parents were not at home. He and the friends handled the gun. There was testimony that he once pointed it at his brother and said he was going to kill him but there was other testimony from young friends that they had not seen Justin point the gun at anyone when he was showing it to them.
Deputy Cox testified he had checked for any police record of misconduct on the part of Justin and found nothing to indicate he had ever had a problem with the law in Little Rock or North Little Rock where he had previously lived or in his current home town, Monticello.
Justin’s mother testified that he had never been in trouble with the law. She said Jacob had been Justin’s best friend and they never quarreled or fought. Justin had maintained a 3.4 grade average in school prior to the incident. He was inducted into the Beta Club in honor of his good scholarship and citizenship. During the time he remained in school after the incident, his grades dropped to 2.4. He was suspended from school due to the felony charge. In his home schooling with which his mother helped him he achieved better than average scores on standardized tests. His mother testified that Justin suffered from nightmares after the shooting and that she and her husband and Justin had all received prescription medicines and psychological counselling as the result of the incident.
The psychological counselor Justin had visited some 50 times since the incident testified that the best course for Justin was to reintegrate him in school. He testified Justin had no problem requiring rehabilitation, such as a mental disorder or drug addiction, but that he continued to have crying spells and mental ups and downs resulting from the death of his friend. It was also related that Justin had struck another young man who taunted him about the incident and that he was the sort who did not back away from aggressive behavior toward him.
At the conclusion of the hearing on the motion to transfer, the Trial Court stated:
I have listened to the testimony and among other things, as it was pointed out, that Justin is a violent person and there’s two major factors I have given substantial consideration to. One is the seriousness of the offense and the other is a death caused by a firearm. These are the two primary factors that I’ve considered in deciding that this matter should be heard by the Circuit Court as opposed to juvenile court, although that does not mitigate the evidence of the type of person that Justin Green is. But under these circumstances the Court finds the Motion to Transfer should be denied.
The operative part of the Court’s order was as follows: “That due to the serious nature of the crime charged & the use of a firearm in the commission of the offense, the defendant’s motions should be and are denied.” The order, as prepared presumably by the prosecutor, included the words “and the employment of violence.” Those words were crossed out with the deletion initialed by Justin’s counsel apparently prior to the signing of the order by the Trial Court.
1. The statutory transfer factors
The General Assembly has established factors to be considered in deciding whether a charge against a juvenile should be transferred to the juvenile division of a chancery court. Although commission of a felony while armed with a firearm is a basis of concurrent jurisdiction of a circuit court over a juvenile, Ark. Code Ann. § 9-27-318(b)(2)(M) (Supp. 1995), it is not one of the factors to be considered in making the transfer decision. Arkansas Code Ann. § 9-27-318(e) (Supp. 1995) provides the factors to be considered as follows:
In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
In making a transfer decision, a circuit court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). The seriousness of an offense, when coupled with the employment of violence, is a suf ficient basis for denying a motion to transfer and trying a juvenile as an adult. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993); Wicker v. State, 310 Ark. 580, 839 S.W.2d 186 (1992); Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991); Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied 304 Ark. 402-A, 805 S.W.2d 80 (1991).
From the evidence before the Trial Court, it is apparent that consideration of factors (2) and (3), which were not mentioned by the Trial Court in comments from the bench or in the order, would favor transfer in this case. The focus thus must be upon the first factor. No doubt the offense charged is serious. Manslaughter is a class C felony. Ark. Code Ann. § 5-10-104(c) (Repl. 1993). If Justin were convicted he would be sentenced to imprisonment for not less than three nor more than ten years. Ark. Code Ann. § 5-4-401(a)(4) (Repl. 1993).
The question then is whether factor (1) may form the basis of refusal to transfer absent a finding that “violence was employed.”
2. “Whether violence was employed”
The question is not whether violence occurred in the incident under consideration but whether the decision not to transfer the case can stand absent a finding that “violence was employed” by Justin Green. Jacob Stanley obviously died a most violent death. Although an information alone may be sufficient evidence of the serious and violent nature of the crime alleged to support an order denying the motion to transfer, Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996); Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Vickers v. State, supra; Walker v. State, supra, the information in this case does not allege the employment of violence.
Justin Green is charged with having “recklessly” caused Jacob Stanley’s death. “Recklessly” is defined or described by Ark. Code Ann. § 5-2-202(3) (Repl. 1993) as follows:
A person acts recklessly with respect to attendant circum stances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
“To employ” means “to make use of.” Shorter Oxford English Dictionary, p. 810 (1993). The State does not intend to prove that “violence was employed” by Justin toward Jacob Stanley, and the order of the Trial Court contains no such finding.
Seriousness alone is not a sufficient basis to refuse the transfer. See Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995). Thus, evidence in support of applying factor (1) to justify refusal to transfer is incomplete, and factors (2) and (3) weigh in favor of transfer. True, as mentioned above, the Trial Court need not have given equal weight to each of the statutory factors for deciding whether to transfer, but in this instance application of them, no matter how they are weighed, points decidedly toward juvenile court.
Reversed and remanded for orders consistent with this opinion.
Jesson, C.J., Glaze, and Corbin, JJ., dissent. | [
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