author: Robert L. Brown, Justice.

text:
    Kevin M. ELDERS v. STATE of Arkansas
    CR 94-1301
    900 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal is from a judgment of conviction for delivery of cocaine and a sentence of ten years imprisonment. The appellant, Kevin Elders, contends that the trial court was in error in denying his motion for directed verdict which was premised on the affirmative defense of entrapment and in concluding that imprisonment was the only available punishment option. Neither point has merit, and we affirm.

The trial of this matter was held before the circuit court without a jury, and the following facts are gleaned from State witnesses and from the testimony of Elders. The delivery of cocaine in question occurred on July 29, 1993. Elders and the confidential informant, Calvin Walraven, had been friends for some time. Walraven testified that they first met at a New Year’s Eve party in January 1991. For about three weeks prior to the sale on July 29, 1993, and perhaps longer, Walraven called Elders and “ragged him” about selling controlled substances to him. During this period, he testified that he called Elders at least once a day. He stated that Elders told him that his mother, Dr. Jocelyn Elders, had been nominated for the position of United States Surgeon General by President Bill Clinton and that he was “laying low” as far as selling drugs until his mother was confirmed. Walraven also testified that he had purchased illegal drugs from Elders on prior occasions and that he never made any threats to Elders to induce him to sell drugs to him on July 29, 1993. Later that same year on December 17, Walraven testified that Elders came to his house while on break from work, and Walraven gave him a “fix,” meaning a shot of narcotics.

Elders contested Walraven’s rendition of what led to the charge for selling cocaine and called it a “lie.” According to Elders, he (Elders) was a drug addict and had been for ten years. He stated that Walraven hounded him to sell the cocaine, and on July 28 or July 29, 1993, he threatened to go to the press with the fact that Elders used drugs. Elders stated that he did not deal drugs, but because of his fear that Walraven’s revelation of his drug usage would have an adverse impact on his mother’s confirmation as Surgeon General, he stated that he succumbed to the request. Elders further testified that he and Walraven had a disagreement over Dr. Elders’s views about certain social problems, which caused a rift in their friendship.

On July 29, 1993, two detectives from the Little Rock Police Department — Kyle King and Robert Mourot — observed and participated in the controlled buy from Elders to Walraven. According to Detective King, he was called by Walraven on that date at about 7:00 p.m. He went to Walraven’s house and was present when Elders called sometime later. Elders informed Walraven that he was “back in business,” according to Walraven, although Elders denies that he said this. Walraven then arranged by telephone to purchase an “eight ball” of cocaine from Elders at Boyle Park in Little Rock that evening. Detective Mourot went to the park to set up surveillance, followed by Detective King and Walraven.

Several minutes before 8:00 p.m., Elders arrived in his car at Pavilion #2 in the park, and Walraven in the company of Detective King pulled up in their car behind him. According to Walraven, he and Elders first embraced as a sign of their friendship. They then negotiated the price of the cocaine. Walraven asked if the price was still $250, and Elders answered that it had increased to $275. Walraven got the additional $25 from Detective King, who he introduced as “Steve,” and gave Elders the money. Elders left and returned within 22 minutes at 8:12 p.m., according to the detectives, with a package which contained the cocaine. Both men tested the cocaine by sniffing samples of it from car keys, which they described as a “key bump.” After the test, Elders gave the package to Walraven. Elders then used the restroom. When he returned, he said to Walraven, according to Detective King: “If you need to get anything, just call me anytime.” The two men embraced again, and Elders left. Detective King described Elders as “nervous” and “jittery” at first but “happy” at the end of the deal.

At the conclusion of the testimony, the circuit court found Elders guilty of one count of delivery of cocaine. The court noted that Elders had to prove entrapment as an affirmative defense by a preponderance of the evidence and that he had failed to meet his burden of proof. Later, Elders requested reconsideration of the court’s finding on entrapment and this, too, was denied.

Prior to sentencing, Elders urged the circuit court to apply Act 192 of 1993 retroactively. Act 192 amended Ark. Code. Ann. §§ 5-4-104(e)(l) and 5-4-301(a)(l) (Supp. 1991), to permit suspension and probation as alternative sentences in cases of delivery of cocaine. The circuit court refused to do this because Act 192 was not in effect at the time of the commission of the offense. The court sentenced Elders to ten years in prison pursuant to the statutes that existed at the time of the sale of cocaine.

/. ENTRAPMENT

Elders first contends that the circuit court erred in not finding that he was entrapped into making the sale of cocaine to Walraven as a matter of law. Entrapment is an affirmative defense for which the defendant bears the burden of proof by a preponderance of the evidence. Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990); Wedgeworth v. State, 301 Ark. 91, 782 S.W.2d 357 (1990); McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989). A statute sets forth what circumstances comprise entrapment:

(b) Entrapment occurs when a law enforcement officer or any person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

Ark. Code Ann. § 5-2-209(b) (Repl. 1993). In Womack v. State, supra, we stated: “Entrapment as a matter of law is established only if, viewing the evidence in a light most favorable to the State, there is no factual issue to be decided. [Citing authority.] Otherwise, entrapment is a question of fact for the jury to resolve.” 301 Ark. at 197, 783 S.W.2d at 35.

In assessing whether entrapment occurred as a matter of law, we have stated that more importance attaches to the conduct of the law enforcement officers than to the predisposition of the defendant, and we have focused on the effect that that conduct would have on normally law-abiding persons. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992), citing Spears v. State, 264 Ark. 83, 96, 568 S.W.2d 492, 501 (1978); Mullins v. State, 265 Ark. 811, 580 S.W.2d 941 (1979). We have also stated that the defendant’s conduct and predisposition to commit the crime are material and relevant to the question of whether law enforcement officers only afforded an opportunity to commit the offense. Baker v. State, supra.

We agree with the circuit court that there was no basis for finding entrapment as a matter of law because factual issues clearly had to be resolved in deciding the issue. For one thing, Walraven testified that he never threatened Elders by saying he would notify the press of Elders’s drug abuse. Elders, on the other hand, testified that Walraven did make such a threat. Secondly, Elders testified that he never sold drugs before July 29, 1993. Walraven testified that Elders had sold him drugs before that date. Also, Walraven stated at trial that Elders told him that he was “laying low” until his mother was confirmed as Surgeon General. Elders denied that he ever said this. Finally, Walraven testified that Elders told him that he was “back in business” before the sale, a circumstance that Elders generally denied.

Here, the circuit court was the fact finder in the bench trial. After correctly finding that entrapment did not occur as a matter of law, the court then resolved the factual issues in favor of the State. We cannot say that the court committed error in doing so. Elders clearly was embroiled in drug abuse and had been for ten years by his own admission. Moreover, on July 29, 1993, he had no trouble in making the necessary contact with a source to consummate the sale and refused to identify that source at trial. As one familiar with drug trafficking, he did not fall within the ranks of the “normally law-abiding persons.” Though Elders testified that he was forced to make the sale, there was no supporting evidence of duress. Indeed, Elders and Walraven, from all appearances, appeared friendly during the sale at Boyle Park. There was also Walraven’s testimony that Elders told him that he was merely “laying low” and, later, was “back in business.” Though Walraven pursued the sale with persistence, we are not prepared to say that this amounted to anything more than conduct which afforded Elders an opportunity to commit the offense. The credibility of the two men lay at the heart of this matter and that was for the fact finder to resolve. McCaslin v. State, supra. The circuit court clearly did not believe major aspects of Elders’s entrapment defense. We find no error in its decision.

Elders cites us to Jacobson v. United States, 112 S. Ct. 1535 (1992), in support of his entrapment argument, but we view that case as distinguishable on the facts. In Jacobson, two government agencies explored the defendant’s willingness to break the new federal child pornography law for 2 1/2 years, using in the process five fictitious agencies. The Supreme Court concluded that what occurred was entrapment as a matter of law and stated:

In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. (Citing authority.) Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. (Citing authority.)

112 S. Ct. at 1540.

That is not the situation in the case before us. The State’s case depicted a drug dealer whose only reluctance to sell cocaine to his friend, Walraven, was due to his mother’s nomination. Hence, it became a matter of Elders’s finding an opportune time to sell the drugs, not a matter of Walraven forcing or even cajoling him to do so. Elders ultimately decided to go ahead with the sale. Under the evidence presented by the State, Walraven did not originate the criminal design, implant it, and induce the sale. He merely provided the opportunity for Elders to break the law. That does not constitute entrapment under § 5-2-209(b).

II. ALTERNATIVES TO IMPRISONMENT

For his second point, Elders urges that the circuit court erred in failing to consider suspension and probation as options to imprisonment. More specifically, Elders implores this court to apply Act 192 of 1993, now codified at Ark. Code Ann. §§5-4-104(e)(1) and 5-4-301(a)(l) (Repl. 1993), to the facts of this case. As already noted, Act 192 removes the prohibition against considering suspension or probation as an alternative to imprisonment.

The operative dates to consider on this point are these. On February 24, 1993, Act 192 of 1993 was approved. On July 29, 1993, Elders committed the offense. On August 13, 1993, Act 192 became effective. On March 1, 1994, Elders was charged with the delivery of cocaine. Elders’s argument is two-fold. He contends that under the majority view in this country ameliorative legislative acts which reduce penalties are applied retroactively to offenses occurring prior to their effective dates. Elders further urges that the common law would apply a new act to a crime committed after passage of the act but before its effective date, and that this court has never considered that precise issue.

We view our law in this area as being absolutely clear. We have refrained from applying Act 192 of 1993 retroactively on multiple occasions since its passage. See State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994); State v. Landis, 315 Ark. 681, 870 S.W.2d 704 (1994); Eberlein v. State, 315 Ark. 591, 869 S.W.2d 12 (1994); State v. Williams, 315 Ark. 464, 868 S.W.2d 461 (1994); State v. Whale, 314 Ark. 576, 863 S.W.2d 290 (1993); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). This rule applies even when the General Assembly amends an act to reduce punishment after commission of the crime but before sentencing. State v. Townsend, supra. Sentencing is now controlled entirely by statute. Id. Only when the General Assembly expressly provides that an act should be applied retroactively will we do so. State v. Williams, supra; State v. Townsend, supra.

The fact that Act 192 was approved before commission of the crime and effective after the crime does not require its application to this case. The General Assembly did not provide for retroactive effectiveness in Act 192, and we view the effective date of the Act as controlling. Moreover, because sentencing is controlled by statute, we give no credence to Elders’s argument that the common law should govern any facet of the punishment meted out in this case. We note on this point that there is a general statute in the Arkansas Criminal Code which deals with retroactivity:

(e) When all or part of a statute defining a criminal offense is amended or repealed, the statute or part thereof so amended or repealed shall remain in force for the purpose of authorizing the prosecution, conviction, and punishment of a person committing an offense under the statute or part thereof prior to the effective date of the amending or repealing act.

Ark. Code. Ann. § 5-1-103(e) (Repl. 1993). While we agree with Elders that Act 192 does not amend a “statute defining a criminal offense and, thus, does not govern the case before us,” § 5-l-103(e) does evince a legislative policy in a related context that the law in effect at the time of the crime’s commission should control.

We decline once more to apply Act 192 retroactively.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Michael BURNS v. STATE of Arkansas
    CR 95-546
    899 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995

      Jan Thornton, for appellant.

      No response.

   Per Curiam.

Appellant, Michael Burns, by his attorney, Jan Thornton, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to an error on her part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Cecelia MADEWELL v. STATE of Arkansas
    CR 95-533
    899 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995

      Timothy M. Weaver, for appellant.

      No response.

   .

Per Curiam.

We treat this motion for rule on the clerk as a motion for a belated appeal. Appellant filed her notice of appeal on December 1, 1994, whereas the judgment was not entered until later that same day. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We grant the motion for a belated appeal and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.


author: Per Curiam. Robert L. Brown, Justice, Andree Layton Roaf, Justice,

text:
    James A. NEAL, as Executive Director of the Supreme Court Committee on Professional Conduct v. Jimmie L. WILSON
    95-536
    900 S.W.2d 177
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995

      Daggett, Van Dover & Donovan, by: Robert J. Donovan, for petitioner.

      Friday, Eldredge & Clark, by: Jerry L. Malone, for respondent.
   Per Curiam.

On October 9, 1991, petitioner filed a disbarment proceeding against the respondent in the Phillips County Circuit Court. Respondent moved to dismiss, contending the statute of limitations had run. By letter dated December 24,1991, Phillips County Circuit Judge Baird Kinney notified this court that both he and the other circuit judge of the 1st Judicial District had recused from the proceeding involving respondent, and requested a special circuit judge be assigned to hear the matter. Pursuant to Act 496 of 1965, the Chief Justice, on February 18, 1992, assigned Circuit Judge Lance Hanshaw.

On March 3, 1993, Judge Hanshaw entered an order dismissing petitioner’s action against respondent based primarily upon the statute of limitations. That order was appealed and reversed by this court’s decision in Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). The Neal decision was delivered on April 18, 1994, and rehearing was denied on May 23, 1994. By letter dated April 20, 1994, Judge Hanshaw recused from hearing the case on remand and requested another judge be assigned to hear it. Again, pursuant to Act 496, another circuit judge, Judge John Lineberger of the 4th Judicial Circuit, was assigned on May 3, 1994, to try this case, and to hold all ancillary proceedings. By letter dated May 3, 1994, Judges Hanshaw and Baird Kinney and Phillips County Circuit Clerk, Wanda McIntosh, were notified of Judge Lineberger’s assignment. The order assigning Judge Lineberger reflects it was filed with this court’s clerk on May 3, 1994, but the order was not filed in the Phillips County Circuit Court proceedings until September 14, 1994. No further activity appears to have occurred in the case until some time in December of 1994, when respondent moved for Judge Lineberger’s disqualification.

In respondent’s motion suggesting Judge Lineberger’s disqualification, he contended that, when Judge Hanshaw had recused, a new circuit judge had taken office who had not recused in this case, and, as a consequence, this proceeding automatically reverted to that circuit judge upon Hanshaw’s recusal. Judge Lineberger denied respondent’s motion on January 5, 1995, and respondent took no subsequent action to contest Judge Lineberger’s ruling or jurisdiction in this matter. By letter dated April 26, 1995, Judge Lineberger set a nonjury trial on the merits of the case to be heard on June 13, 1995.

The record next reflects that, on May 15, 1995, a flurry of letters was exchanged between respective parties’ counsel. Respondent’s counsel notified counsel for petitioner that the new 1st Judicial Circuit Judge, Judge Oily Neal, had two dates on which he could try respondent’s case, but petitioner’s counsel responded, stating he would not attend a hearing until Judge Neal signed an order assuming jurisdiction of the case. Petitioner was subsequently served with a notice setting a hearing in Judge Neal’s court on May 18, 1995. Petitioner appeared on that date, contesting Judge Neal’s jurisdiction to proceed in the matter. Judge Neal ruled he had jurisdiction to proceed and did, by deciding the case on its merits. Judge Neal’s order was signed on May 24 and entered on May 25, 1995.

On May 19, 1995, petitioner filed in this court for a writ of certiorari directing that all judgments, orders and rulings made by Judge Oily Neal be declared void since Judge Lineberger had been assigned jurisdiction to try this case. On May 24, 1995, respondent moved to dismiss petitioner’s request for certiorari, asserting (1) writs of certiorari are issued to direct a judge to perform a duty and Judge Neal was not made a party to this special action, (2) a petition for writ of prohibition would have been a proper remedy, but is not warranted on the facts of this case, (3) an appeal provides an adequate remedy, and (4) no grounds are recited upon which a writ of certiorari can issue in this matter.

The general rule is that certiorari cannot ordinarily be used as a substitute for appeal. However, this does not mean that actions of trial courts during the course of an action are not subject to review, in a proper case, by a court having supervisory jurisdiction, or that, in the exercise of that jurisdiction, resort may not be had to mandamus, prohibition or certiorari where appellate remedy is unavailable or inadequate. McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973). Even if an appeal is available to petitioners, certiorari, in a court having supervisory jurisdiction, would still lie to quash a judgment which is void on its face, or to control the actions of an inferior tribunal which is proceeding illegally where no other mode of review has been provided. Id.

Here, petitioner asserts Judge Lineberger was properly assigned jurisdiction of this case, and as a consequence, Judge Neal’s assumption of jurisdiction of this cause was void. We agree. While respondent complains that Judge Neal had never recused from hearing this case and therefore retained jurisdiction to hear it, that fact was never conveyed to this court at the time Judge Hanshaw’s assignment was terminated or when Judge Lineberger was assigned. At the time of Judge Lineberger’s assignment, the record reflected the circuit judges in the 1st Judicial District had recused, and the special assigned circuit judge, Judge Lance Hanshaw, had done so as well. Based upon that record, this court made the new and temporary assignment of Judge Lineberger to this case pursuant to the terms of Act 496, as amended, [codified as Ark. Code Ann. §§ 16-10-101 (Repl. 1994)]. At the latest, respondent knew (or should have known) of Judge Lineberger’s assignment on September 14, 1994 — the date the order was filed in this proceeding in the Phillips County Circuit Court Clerk’s Office. The principle is well settled that it is the duty of a litigant to keep himself informed of the progress of his case. United S. Assurance Co. v. Beard, 320 Ark. 115, 894 S.W.2d 948 (1995). Nonetheless, respondent waited nearly three months before requesting Judge Lineberger to recuse, and when respondent’s request was denied, he never petitioned this court that Judge Lineberger’s assignment was improper and lacked jurisdiction. In fact, respondent simply failed to act in any way to apprise this court that Judge Neal had not recused from serving in this case. Nor did he question the validity of Judge Lineberger’s assignment until May of 1995, when petitioner filed this original proceeding for certiorari. In other words, respondent waited eight months after Judge Lineberger’s assignment was filed in the Phillips County Circuit Clerk’s office to notify this court that Judge Neal had not recused in this matter.

Why respondent failed to question Judge Lineberger’s assignment earlier is unclear. Regardless, we emphasize the fact that the record before this court at the time of Judge Lineberger’s assignment reflects that the circuit judges in the 1st Judicial District had recused from this case, and no party had offered any motion, objection or information to the contrary. It is the parties’ or trial court’s responsibility to apprise this court as to whether an assignment is necessary under Act 496. Once that assignment is made, that responsibility continues. Clearly, it is not this court’s task, on its own volition, to discover or monitor whether the circumstances have changed to warrant the termination of an assignment or reassignment. The mere fact that a new circuit judge had been elected in the 1st Judicial Circuit after Judge Hanshaw’s and before Judge Lineberger’s assignments did not, in itself, suggest the new circuit judge had not recused from trying this case. Certainly, if respondent had notified this court of Judge Neal’s willingness to serve in this matter, this court could have considered that factor in deciding whether a new assignment was required under Act 496. Certainly, if respondent had acted earlier, petitioner would also have been afforded an early opportunity to question the propriety (or appearance of impropriety) of Judge Neal sitting in this matter. Under the circumstances, petitioner was unable to suggest Judge Neal’s disqualification until after Judge Neal belatedly attempted to exercise jurisdiction over this case in May of 1995.

In sum, we must conclude that the record of this case reflects Judge Lineberger’s assignment was valid, and accordingly that assignment gave him jurisdiction to try this litigation. That being so, Judge Neal’s attempt to assume jurisdiction and to decide this matter was clearly erroneous and void. The record also reflects Judge Neal knew this case had been assigned to Judge Lineberger, who already had set this cause for trial, but Judge Neal undertook to hear and decide the case anyway. We hold that petitioner has no adequate remedy in these circumstances except certiorari. Judge Lineberger, in exercising appropriate jurisdiction, set this matter for trial on June 13, 1995, and he is necessarily the sole judge having the power and authority to proceed in this cause.

In conclusion, we touch on respondent’s brief mention that Judge Neal is a necessary party to the request for certiorari proceeding. He cites no legal authority and even fails to cite or argue ARCP Rule 19, Arkansas’s rule concerning the joinder of persons needed for a just adjudication. We have held that, absent convincing argument or citation of authority, we decline to address the response or argument to a petition for certiorari. We would simply state that neither Judge Neal nor Judge Lineberger has an interest related to the subject of this action between petitioner and respondent, and those judges’ presence, as parties, has nothing to do with whether complete relief can be accorded in this case. Cf. Bridges v. Arkansas Motor Coaches Limited, Inc., 256 Ark. 1054, 511 S.W.2d 651 (1974); McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973); State v. Nelson, Berry Pet. Co., 246 Ark. 210, 438 S.W.2d 33 (1969) (where petitions for writs of certiorari actions were decided by the court without trial judges being joined as parties). We would also point out that Judge Neal has never requested to be a party to this case.

Because we find Judge Neal has proceeded in excess of his authority and jurisdiction, his directives and orders relating to the action between petitioner and respondent are quashed. Nelson, Berry Pet. Co., 246 Ark. at 221, 438 S.W.2d at 40.

Newbern, J., not participating; Brown and Roaf, JJ. dissent.

Robert L. Brown, Justice,

dissenting. There are too many unanswered questions to allow this matter to go to trial on June 13, and a necessary party, Judge Neal, should be joined as a respondent. I would stay the trial to allow further development and consideration of the issues involved and advance the case for a decision in September.

The question that permeates all aspects of this case is why a special judge, Judge John Lineberger, was appointed to replace Special Judge Lance Hanshaw on May 3, 1994, when a duly elected circuit judge, Judge Oily Neal, who had not recused, was sitting in the district. This appears to have been a mistake. When one special judge recused, the immediate reaction must have been to appoint another special judge without remembering that in the interim a new circuit judge had been elected within the district. It is that apparent mistake that has given rise to much of this controversy.

Turning to the merits, I cannot agree with certain statements by the majority. First, I cannot agree that the record reflects that all circuit judges in the First Judicial District had recused in this case when Special Judge Lineberger was appointed. Judge Neal apparently had not. Further, I question the following conclusion: “The mere fact that a new circuit judge had been elected in the 1st Judicial Circuit after Judge Hanshaw’s and before Judge Lineberger’s assignments did not, in itself, suggest the new circuit judge had not recused from trying this case.” The majority appears to espouse the theory of an implied recusal by Judge Neal at the time of Special Judge Lineberger’s appointment because Judge Neal failed to announce that he was trying the case. That assumption by the majority inspires the question of whether Judge Neal was ever presented with the option of sitting or recusing before Special Judge Lineberger was appointed. The record before us suggests that he was not. That issue is different from the issue of whether Judge Neal later waived his authority by permitting Special Judge Lineberger to proceed with the case. All of this points up the fact that Judge Neal needs to be a party to this original proceeding.

The crux of this case is whether Special Judge Lineberger has already asserted jurisdiction over the matter and, if so, at what point did he do so. For example, did he do so before Respondent Wilson suggested that he disqualify in December 1994? A corollary issue is why did Respondent Wilson not raise the issue of Special Judge Lineberger’s lack of authority earlier. Did he waive his rights by not doing so? And, again, does Judge Neal not have a right to be heard in this? After all, it is his authority that is in question.

The majority is undoubtedly right that in certain certiorari cases the trial judge has not been made a party. But this court has also stated most recently that a writ of certiorari is issued to direct a judge to perform a duty. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994). Manifestly, a writ of certiorari issues to prevent a judge from acting in excess of his jurisdiction. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994). This is just such a case. Indeed, the majority has granted the writ, determined that Judge Neal acted in excess of his authority, and vacated his orders without hearing his side of things. That is fundamentally unfair. Judge Neal is clearly a necessary party under Ark. R. Civ. R 19. We are on shaky and uncertain ground in my opinion when we remove him from the case without giving him a voice in the matter.

I would allow supplemental briefs and advance the case on the docket so that it could be decided in September of this year. The suggestion of a conflict of interest on the part of Judge Neal due to a prior professional relationship with Respondent Wilson has been injected into this matter by Petitioner James Neal. I would allow an amendment to the petition, should petitioner James Neal choose to do so, and supplemental briefs on this issue also.

Because I would stay the trial, join Judge Neal as a party, permit supplemental briefs, and expedite the matter, I respectfully dissent.

Roaf, J., joins.

Andree Layton Roaf, Justice,

dissenting. There is so much in the majority opinion with which I take issue that it is hard to know where to start, but the holding that Judge John Lineberger was “properly assigned jurisdiction of this case” without any authority or discussion of the inherent underlying conflict between his assignment and the constitutional and statutory authority of the duly elected, sitting circuit judge for the First Judicial District is as good a place as any. The propriety of Judge Lineberger’s assignment, and not the refusal of Judge Oily Neal to disqualify is the real issue presently before us, and there is no question that the assignment was made in error.

The majority seems to opine that because this court, through the office of the Chief Justice, had once made a valid assignment of Judge Hanshaw, pursuant to Ark. Code Ann. § 16-10-101(b)(1) (Repl. 1994), which grants the Supreme Court general superintending control over the administration of justice in all courts of the state, it retained control over this case regardless of the passage of time and change in circumstances. Indeed, the majority states that it merely would have considered “Judge Neal’s possible ability and willingness to serve in this matter” in making its assignment under Act 496 if respondent had so notified the court. The majority, therefore, does not deem it necessary to discuss the facts surrounding Judge Lineberger’s assignment as it relates to the statutory authority of this court to so assign him; I do, and I will.

Judge Lineberger’s assignment was apparently triggered by the letter Judge Hanshaw directed to the Administrative Office of the Courts (AOC) on April 20, 1994, in which he expressed disagreement with this court’s reversal of his decision in the initial proceedings between these parties and declined to rehear the case. He asked the AOC to “Please re-assign this case to someone else.” Judge Hanshaw’s assignment was then terminated by order of this court on April 25, 1994, and Judge Lineberger was assigned to the case by order of this court dated May 3, 1994. The majority construes the initial appointment of Judge Hanshaw on February 18, 1992 and his letter of more than two years later, as some kind of a “record” upon which this court could properly rely in making the reassignment of Judge Lineberger. Indeed, the holding of the majority finds no obligation or responsibility on this court or the AOC other than to react to the “request” of Judge Hanshaw, who has no connection to Phillips County or to the First Judicial District other than his earlier assignment to this case.

We must examine the underlying bases for the authority of both Judge Neal and Judge Lineberger to determine if one will have supremacy over the other. Of course, Judge Neal’s authority to hear this case derives from his status as the circuit judge elected by the people of his district. Arkansas Const, art. 7, § 13 provides:

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.

Further, Ark. Code Ann. § 16-13-903 (Repl. 1994) provides that voters of the first judicial district (which includes Phillips County Circuit Court) must elect the judges who preside over all cases arising within the district. Finally, Ark. Code Ann. § 16-13-210 (Repl. 1994) provides in part:

Any circuit judge of this state, at any time while mentally and physically competent and physically present in the geographical area of the judicial district which he serves as judge, may hear, adjudicate, or render any appropriate order with respect to, any cause or matter pending in any circuit court over which he presides. . .

As to Judge Lineberger’s authority, this court has concluded that Ark. Const, art. 7, § 21, providing for the election of special judges, and Ark. Const, art. 7, § 22, permitting circuit judges to temporarily hold court for each, other, are the modes expressly set out in the constitution and are exclusive of all other methods of temporarily replacing a circuit judge. Wessell Bros. Drill v. Crossett Sch. Dist., No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985); Burris, Adm’r v. Britt, Judge, 281 Ark. 225, 663 S.W.2d 715 (1984). Because Judge Lineberger was not elected by the practicing attorneys of Phillips County pursuant to Ark. Const, art. 7, § 21, the only provision under which Judge Lineberger could hold authority to hear the case is Ark. Const, art. 7, § 22. Article 7, § 22, Exchange of circuits, provides:

The judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such regulations as may be prescribed by law.

(Emphasis supplied.) In accordance, Ark. Code Ann. § 16-10-101 provides in part:

(b)(1) Under rules prescribed by the Supreme Court, the Chief Justice may require reports from all courts of the state and may issue such orders and regulations as may be necessary for the efficient operation of those courts to ensure the prompt and proper administration of justice and may assign, reassign, and modify assignments of judges of the circuit court, the chancery court, and the probate court to hold, upon a temporary basis, regular or special sessions for the transaction of civil or criminal business within any other such court.

(Emphasis supplied.) This court has recognized that if a trial court has problems with congested dockets or conflicts in scheduling, and the prompt and proper administration of justice warrant it, the temporary assignment of judges may be had pursuant to Ark. Code Ann. § 16-10-101 (Repl. 1994). (Emphasis supplied.) Arkansas Dep’t of Human Services v. Templeton, 298 Ark. 390, 769 S.W.2d 404 (1989); See State v. George, 250 Ark. 968, 470 S.W.2d 93 (1971). Further, where the regular judges of the circuit recuse from hearing the case, the court may temporarily assign a judge from another circuit. See Burris, supra.

Initially, it may appear that both Judge Neal and Judge Lineberger have authority to hear the matter. In Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995), this court concluded that Ark. Const, art. 7, § 22 clearly provides that circuit judges may temporarily exchange circuits. The court stated that Ark. Code Ann. § 16-13-403 (Repl. 1994) (statutory procedure for exchange) merely implemented that constitutional mandate and did not conflict with Ark. Code Ann. § 16-13-1203 (Repl. 1994) which provided the voters of the district must elect the judges who preside over all cases arising within the district. Similarly, § 16-10-101 (authorizing assignment by Chief Justice) merely implements the mandate of art. 7, § 22 and does not, per se, conflict with Ark. Code Ann. §§ 16-13-210 or 16-13-903.

The majority concludes that because Judge Lineberger’s assignment was valid and gave him jurisdiction, Judge Neal’s “attempt to assume jurisdiction” was clearly erroneous and void. Judge Neal, however, was a duly elected circuit judge for Phillips County, and he had not disqualified from serving on the case. Therefore, there was no basis for assigning another judge to hear a matter which he was capable of presiding over, and, in fact, elected to preside over. In essence, it could be concluded that Judge Neal had already exercised jurisdiction over the matter.

In the instant case, the critical question is whether a judge may be assigned under § 16-10-101 even though there is a regular circuit judge who has not recused and is capable of hearing the matter. This court clearly has the authority to assign judges under § 16-10-101, and the provision does not appear to place limitations upon that power. However, we have limited that authority by stating that if a trial court has problems with congested dockets or conflicts in scheduling, and the prompt and proper administration of justice warrant it, the temporary assignment of judges may be had pursuant to § 16-10-101. Arkansas Dep’t of Human Services v. Templeton, 298 Ark. 390, 769 S.W.2d 404 (1989). Thus, it would appear that the trial court must have problems with congested dockets or conflicts in scheduling before the court may simply assign a judge.

Surely we are not granted unlimited authority to assign a circuit judge. In the instant case, the assignment was probably inadvertent, but the impact is the same. If the assignment of Judge Lineberger is deemed valid, then the court would, in essence, be granted the authority to assign and reassign circuit judges without even a request from the regular sitting judges. This court has stated that the prompt and proper administration of justice must warrant the assignment. Because Judge Neal was capable of hearing the matter, the assignment of Judge Lineberger was not warranted.

Because this court did not have the authority to assign Judge Lineberger, he does not have jurisdiction to hear the matter, or any matter in Phillips County. See Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993). The general rule is that a judgment entered without jurisdiction of the person or the subject matter or in excess of the court’s power is void. West v. Belin, 314 Ark. 40, 858 S.W.2d 97 (1993). Further, in Abercrombie v. Green, 235 Ark. 776, 362 S.W.2d 12 (1962), this court recognized that the constitution and statutes require that a special circuit judge or chancellor be elected by the attorneys in attendance in the court and that the proceedings be entered upon the record. This court stated that where the parties attempt to select a special judge by agreement the proceedings are void. Id. Thus, any proceedings by Judge Lineberger would be void.

I conclude, without reservation, that this court and the AOC should, in every instance, be charged with the responsibility for knowing the status of the duly elected, sitting judges in a district before making any assignment pursuant to § 16-10-101, and it matters not whether the assignment of Judge Lineberger in this case was made inadvertently, by oversight, or with knowledge of the status of Judge Neal; it was made in error and the result is the same — the assignment is void.

Additionally, there is not one document among the voluminous documentation included with the petition, nor is there even an allegation, indicating that the respondent or Judge Oily Neal were ever aware of the assignment of Judge Lineberger, until the order appointing him was filed with the Circuit Clerk of Phillips County on September 14, 1994. The majority goes so far as to even state that the respondent should have been aware of this assignment pursuant to the “duty of a litigant to keep himself informed of the progress of his case.” The majority is in essence characterizing the assignment of a circuit judge as somehow part and parcel of the underlying adversarial proceeding; I take issue with this characterization. Further, the issues of Judge Neal’s alleged conflict of interest and his refusal to disqualify are not presently before us and are irrelevant; the injection of these issues into the jurisdictional question presented by petitioner serves only to cloud the real issue before us, that of the validity of the assignment of Judge Lineberger in the first place.

Finally, the proper remedy to resolve this conflict is a direct appeal. The settled rule is that when there is a remedy by appeal, a writ of certiorari will not be granted unless there was a want of jurisdiction, or an excess in its jurisdiction, by the court below. Arkansas Dep’t of Human Servs. v. Templeton, 298 Ark. 390, 769 S.W.2d 404 (1989). The want of jurisdiction or act in excess of jurisdiction must be apparent on the face of the record. Id. In the instant case, Judge Neal is a regular circuit judge for Phillips County and he heard a matter pending in Phillips County Circuit Court. Thus, it is not apparent on the face of the record that there was a want of jurisdiction or an act in excess of jurisdiction. In Wessell, supra, this court addressed on direct appeal the question of which judge had the authority to act — an assigned judge or a judge elected by attorneys pursuant to art. 7, § 21.

Today’s holding stands for the proposition that this court, through the office of the Chief Justice, can make an assignment of a judge foreign to a district upon the most casual and offhanded of requests, or even in the absence of any request at all, without regard to the status of the duly elected judges serving in the county and district, and such assignment will be a valid exercise of the statutory authority under § 16-10-101, so long as the sitting judge has not actually commenced proceedings on the case. Certainly this court does not contemplate wielding its considerable power in this fashion in the future, and just as certainly it should not do so in this instance. The citizens of the First Judicial District have elected Judge Neal as the circuit judge to hear cases brought forward in Phillips County. To deny his constitutional authority over any proceeding in this unprecedented manner is to impermissibly deprive these citizens of their voice in the election of the judicial officer for their district.

I respectfully dissent.

      Judge Oily Neal was elected at the General Election on November 3, 1992.

      Section 16-10-101 provides in pertinent part as follows:
      (a) The Arkansas Supreme Court shall have general superintending control over the administration of justice in all courts in the State of Arkansas. The Chief Justice of the Supreme Court shall be directly responsible for the efficient operation of the judicial branch and of its constituent courts and for the expeditious dispatch of litigation therein and the proper conduct of the business of the courts.
      (b) (1) Under rules prescribed by the Supreme Court, the Chief Justice may require reports from all courts of the state and may issue such orders and regulations as may be necessary for the efficient operation of those courts to ensure the prompt and proper administration of justice and may assign, reassign, and modify assignments of judges of the circuit court, the chancery court, and the probate court to hold, upon a temporary basis, regular or special sessions for the transaction of civil or criminal business within any other such court.

      The dissent suggests this court’s assignment of Judge Lineberger exceeded its power of temporary appointments under Act 496. Such is not the case. Again, when this court temporarily assigned Judge Lineberger to hear this case, the record showed that such assignment was necessary for the proper administration of justice.

      Petitioner suggested Judge Neal’s disqualification, citing the Judge’s past association with respondent in the practice of law.


author: Jack Holt, Jr., Chief Justice.

text:
    ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. Billy John GRIDER and ASPLUNDH RAILROAD DIVISION v. OAKLEY TRUCKING, INC., and BRUCE OAKLEY, INC.
    94-947
    900 S.W.2d 530
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      Barrett & Deacon, by: Barry Deacon, and D.P. Marshall, Jr., for appellant St. Louis Southwestern Railway Company.

      Sloan Rubens & Peeples, by: Kent J. Rubens, and Hubbell, Sawyer, Peak & O ’Neal, by: Gene Napier and Chris Leach, for appellee Billy John Grider.

      Frye, Michel & Boyce, P.A., by: Brian P. Boyce, for appellee Asplundh Railroad Division.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Michael L. Alexander, for cross-appellants Oakley Trucking, Inc., and Bruce Oakley, Inc.
   Jack Holt, Jr., Chief Justice.

This case involves a collision between a freight train and a tractor-trailer, which occurred at a rural crossing in Crittenden County on August 1, 1990. The conductor of the train, appellee Billy John Grider, suffered a neck injury and brought suit against his employer, appellant St. Louis Southwestern Railway Company (“Railway”), under the Federal Employers Liability Act (“FELA”), 45 U.S.C. § 51, etseq., asserting that Railway was negligent in failing to keep a right-of-way free from weeds and other obstructing vegetation, thus not providing him with a reasonably safe place to work. Railway filed a third-party complaint against Oakley Trucking, Inc., and Bruce Oakley, Inc. (“Oakley Trucking”), the owner of the truck, alleging that the truck driver, Doyle Montgomery, was negligent in operating the truck and for not stopping and yielding to the train. Mr. Grider amended his complaint to sue Oakley Trucking, which in turn filed a cross-claim against Railway and a third-party complaint against Asplundh Railroad Division (“Asplundh”), which had a contract with Railway to control the vegetation by spraying chemicals at this and other rights-of-way. Railway filed a cross-claim against Asplundh for contribution. The jury returned a verdict in favor of Mr. Grider, apportioning damages between Railway and Oakley Trucking. Pursuant to a stipulation as to property damage between Railway and Oakley Trucking and based upon the apportionment of fault as set by the jury, the trial court entered judgment in favor of Oakley Trucking on its cross claim against Railway for 75 percent of the damage to its trailer.

At trial, the jury heard testimony from several witnesses that weeds at the intersection reached heights of up to fifteen feet in contravention of Ark. Code Ann. § 23-12-201 (1993), which mandates that railroad corporations must maintain their rights-of-way free of obstructions. Edward Evans, the manager of Asplundh, testified that, pursuant to a contract between his company and Railway, Asplundh sprayed the crossing approximately two-and-one-half months prior to the accident, but that follow-up sprays were done only if they were notified by Railway that there was a problem. Railway employees admitted that they did not notify Asplundh that a respray was needed. The jury also heard testimony from Mr. Montgomery regarding his actions immediately prior to the accident, and from Mr. Grider, his physicians, and an economist regarding the extent of his injuries and economic losses as a result of the accident.

Over Railway’s objection, the trial court instructed the jury on FELA rule-of-liability and on FELA assumption-of-risk. Following the trial court’s denial of Oakley Trucking’s motion for directed verdict, the jury returned a verdict evaluating Mr. Grid-er’s damages at $1,750,000, apportioning 75 percent fault to Railway, and 25 percent to Oakley Trucking. Pursuant to a stipulation of property damage, the trial court entered judgment in favor of Oakley Trucking against Railway in the amount of $12,750. The trial dismissed with prejudice both Oakley’s third-party complaint against Asplundh, and Railway’s cross-claim against Asplundh for contribution. The trial court denied Railway’s motion for new trial based on excessive damages and alleged errors in instructing the jury, which, together with Oakley Trucking’s assertion that the trial court erred in refusing to direct a verdict in its favor, form the basis for the present appeal and cross-appeal. As neither Railway’s arguments relating to the jury instructions nor Oakley Trucking’s argument relating to the sufficiency of the evidence has merit, we affirm the findings of the trial court.

I. Rule-of-liability instruction

For its first allegation of error on appeal, Railway asserts that jury instruction 19, AMI Civ. 3d 1901, regarding FELA rule-of-liability, confused the jury and bound them to find Railway ultimately liable for Mr. Grider’s injuries. The trial court instructed the jury as follows:

At the time of this occurrence there was in force a federal statute which provided that whenever an employee for a railroad is injured while engaged in the course of his employment and the injury results in whole or in part from the negligence of any of the officers, agents or other employees of the railroad or by reason of any defect or insufficiency, due to the railroad’s negligence, in its works, then the railroad shall be liable in damages to the injured employee.

We have outlined the procedure for making objections to jury instructions as follows:

The procedure for preserving a point of appeal concerning instructions is not complex. A.R.C.R Rule 51 mandates that in order to preserve an objection regarding an erroneous instruction of the law, the party appealing must make a timely objection by telling the trial judge why the instruction was wrong. When the point of appeal is that the court failed to give an instruction, the party appealing must submit a proposed instruction on the issue.

Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). (Citations omitted.) See also Precision Steel Warehouse, Inc. v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993). We have stated that no instruction is required to be proffered in substitution for the instruction to which objection is made; rather, all that is required to preserve an objection for appeal regarding an erroneous instruction of law is to make a timely objection and to state a valid reason for the objection. A.R.C.P. Rule 51; Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989); Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). As Railway made a timely objection to jury instruction 19, stating that it was both confusing and binding in the sense that it told the jury “to find the railroad company completely liable, if it is negligent in any degree, with no consideration of the other defendants,” it preserved its argument for our review.

Railway concedes that the joinder of Mr. Grider’s FELA action with his common law actions was not error. Arkansas Kraft Corp. v. Johnson, 257 Ark. 629, 519 S.W.2d 74 (1975); See also Comment to AMI Civ. 3d 1921. Although it acknowledges that jury instruction number 19 is an approved instruction, Railway contends that it was error for the trial court to give the instruction in the context of this case due to the fact that it was also alleged that Oakley Trucking’s and Asplundh’s negligence proximately caused the accident.

While Railway asserts that jury instruction number 19 should not have been given in the “context” of this case, we cannot say that this “context” is so unique in light of the Comment to AMI Civ. 3d 1921, which states that the correct procedure in cases involving both FELA claims and common law claims is that the case be submitted on interrogatories. This case was so presented, and the jury decided the issues of Railway’s, Oakley Trucking’s and Asplundh’s negligence in separate interrogatories. Thereafter, in response to Interrogatory No. 4, the jury apportioned damages as follows: 75 percent to Railway, 25 percent to Oakley Trucking, and zero percent to Asplundh.

In light of these apportionments, Railway’s argument that jury instruction number 19 bound the jury to find it ultimately liable for Mr. Grider’s injuries is not well taken. Similarly, we focused on the jury’s apportionment of damages in rejecting a claim that the trial court erred in refusing to allow counsel to argue the effects of contribution among joint tortfeasors in Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993). In that case, we held that, even if the trial court had erred in precluding counsel’s argument on the issue of contribution, such error was rendered harmless by the jury’s apportionment of fault — 75 percent fault to one tortfeasor and 25 percent to another tortfeasor.

Railway’s reliance on our decision in Phillips Coop. Gin Co. v. Toll, 228 Ark. 891, 335 S.W.2d 303 (1958), in support of its argument that jury instruction number 19 was a binding instruction is misplaced, as the issues in Toll do not correspond with the issues before us. Toll involved the question of whether a tortfeasor was an employee or an independent contractor, in which the jury was given an instruction regarding this issue. We held that, because the jury was told in the instruction to consider only two conditions, that is, (1) in whose business the tortfeasor was engaged, and (2) who had the right to control and direct his conduct, the instruction was an improper binding instruction because it omitted other conditions which should not have been ruled out in the case, including the employer’s right to terminate the employment.

Here, we are concerned with whether jury instruction number 19 bound the jury to find Railway ultimately liable for Mr. Grider’s injuries. Railway’s argument in this regard fails for several reasons. Its assertion that Oakley Trucking’s negligence and Asplundh’s negligence are essential conditions wrongly assumes that the negligence of these parties is foundational to the determination of Railway’s negligence. As Mr. Grider correctly states in his brief, the jury need not find Oakley Trucking or Asplundh negligent to find Railway negligent, and, conversely, negligence on the part of Oakley Trucking or Asplundh cannot exonerate Railway of its negligence. See Louisiana-Nevada Transit Co. v. Ozan Lumber Co., 235 Ark. 356, 360 S.W.2d 120 (1962), Arkansas Kraft Corp. v. Johnson, 257 Ark. 629, 519 S.W.2d 74 (1975), Bill C. Harris Constr. Co. Inc. v. Powers, 262 Ark. 96, 554 S.W.2d 332 (1977).

In addition, the jury was instructed regarding Railway’s duties and the elements that had to be proved in order to find Railway liable, including: (1) that Railway had a duty to provide Mr. Grider with a reasonably safe place to work; (2) that the failure to use ordinary care on the part of Railway was negligence; (3) that Railway had a statutory duty to keep crossing areas free of visual obstructions, and that violation of that statutory duty was evidence of negligence. The jury was also instructed as to the duties of Oakley Trucking and Asplundh, and on the elements required to be proved in order to find them responsible for the accident. An instruction on concurrent proximate causation was also given. And finally, the jury was told that each defendant was entitled to its own defense, which was not to be adversely affected by the jury’s findings to other defendants, and that each defendant’s case was to be decided separately as if each was a separate lawsuit. In short, the jury was fully apprised of the law relating to the case. We have repeatedly stated that jury instructions should not be reviewed in isolation, but rather considered as a whole in determining whether the applicable law has been given to the jury. Porter v. Lincoln, 282 Ark. 258, 668 S.W.2d 11 (1984).

Under these circumstances, and especially in light of the jury’s apportionment of damages, we hold that jury instruction number 19 was not a binding instruction.

II. Assumption-of-risk instruction

For its second allegation of error, Railway asserts that jury instruction number 22, AMI Civ. 3d 1909 regarding FELA assumption-of-risk, confused the jury by injecting an abstract and inapplicable legal principle into the case, as neither Railway nor Oakley Trucking pleaded or argued the defense that Mr. Grider had assumed the risk of the accident. The trial court instructed the jury as follows:

At the time of the occurrence there was in force a federal statute which provided that in any action brought against a railroad to recover damages for injury to an employee, the employee shall not be held to have assumed the risks of his employment in any case where the injury resulted in whole or in part from the negligence of any of the officers agent, or employees of the railroad.

The trial court gave this instruction to the jury over Railway’s objection, and in denying Railway’s motion for new trial, stated that “it is foreseeable, and a juror might believe that a railroad employee assumes the risk of such collisions when he accepts employment under those circumstances.” The trial court further remarked that he “d[id] not know why we should not explain to the jury that it should not consider that such an employee assumed the risks of such a collision.” On appeal, Railway asserts that it was prejudiced by the giving of jury instruction number 22, stating that the instruction unfairly repeated the FELA standard of liability, while omitting reference to Oakley Trucking or Asplundh.

Granted, jury instructions stating abstract legal propositions without any evidentiary basis should not be given. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993). The comment to AMI 1909 addresses this issue as follows:

Giving an instruction that the employee has not assumed the risk of his employment has been sustained without regard to whether the defense has been asserted. Wantland v. Illinois Central R. Co., 237 F.2d 921 (7th Cir. 1956). It has been held properly refused when that was not an issue. Blundell v. Atchison T. & S. F. R. Co., 157 Cal. App. 2d 797, 322 P.2d 66 (1958).

Railway contends that Mr. Grider should be precluded from arguing on appeal that his conduct was at issue in light of the “parties’ stipulation of record at the start of trial that Grider’s conduct was not in issue.” We find no stipulation entered of record on this point; rather, we observe that counsel merely made arguments to the trial court that Mr. Grider’s conduct was not at issue. Nevertheless, we agree with Mr. Grider’s assertion at oral argument that Railway “smuggled in” evidence of Mr. Grider’s conduct at trial, as Railway elicited testimony that, as conductor, Mr. Grider was in charge of the train, that he frequently traveled by the crossing in question, including the day before the accident when he did not notice the weeds, that he did not brace himself before the accident, and that he omitted from his personal injury report that the weeds caused the accident. Under these circumstances, the evidence supported the trial court’s decision to give jury instruction number 22, as the jury might have otherwise believed that Mr. Grider assumed the risk of the collision.

III. Excessive verdict

For its final point of error, Railway asserts that the $1,750,000 jury award to Mr. Grider is excessive. Railway asks for a new trial, and, in the alternative, a remittitur. Oakley Trucking does not request a new trial but states that it would welcome a remittitur. Asplundh agrees with Mr. Grider that the damage award was not excessive. In denying Railway’s motion for new trial, the trial judge expressed concern regarding the jury award, noting his surprise at the amount, yet he could not say that it “shocked the conscience of the court.”

We have long stated that the jury’s verdict will ordinarily not be disturbed on appeal unless it is wholly without support in the evidence, is the result of passion or prejudice, or shocks the conscience or a sense of justice. Price v. Watkins, 283 Ark. 502, 678 S.W.2d 762 (1984). It is true that, in determining the propriety of a jury award, we place “little reliance” on prior decisions. Mustang Electric Service, Inc. v. Nipper, 272 Ark. 263, 613 S.W.2d 397 (1981). Remittitur is appropriate when the compensatory damages awarded cannot be sustained by the evidence. Johnson v. Gilliland, 320 Ark. 1, 896 S.W.2d 856 (1995). As Railway appeals from the trial court’s denial of its motion for new trial, the test is whether the verdict is supported by substantial evidence, giving the jury the benefit of all reasonable inferences permissible under the proof. Davis v. Davis, supra.

Mr. Grider testified that, as a result of the accident, he was forced to undergo painful myelograms and two cervical fusion surgeries. He spoke of constant headaches and of his fear that normal activities would cause these headaches and neck spasms. Mr. Grider further related that he often could not sleep at night and that his wife would have to help him by massaging his neck to work out the neck spasms. He reflected that he loved to go hunting, fishing, camping, and water skiing, and that before the accident, he would hunt ducks and deer every day. Since the accident, however, he had only been fishing four times, and when he would shoot a gun, he would “pay for it” with painful muscle spasms. He would suffer when he tried to get up into the deer stand, and had to have friends carry a deer that he had killed out of the woods for him. It was Mr. Grider’s further testimony that, when he went back to college, he was unable to complete his courses due to the fact that he “hadn’t been in school for 25 years and all the sitting caused some pain.” Thereafter, he enrolled in an H & R Block tax course to become a bookkeeper or tax preparer. His wife, Vickie Grider, corroborated much of his testimony, adding that he could no longer do household chores which included working on vehicles, fixing a hot water heater, raking leaves, or driving a vehicle.

The medical testimony offered at trial is as follows: Dr. John Barbaree, a chiropractor who had previously treated Mr. Grider for a knee problem and lower back problem, saw him two days after the accident, at which time Mr. Grider complained of neck stiffness, headaches, left hip pain, and sleeping difficulties. Dr. Barbaree testified that he prescribed physical therapy and chiropractic adjustments, which included muscle stimulation, heat and massage, and cervical traction. After four visits, Dr. Barbaree referred Mr. Grider to Dr. Zachary Mason, a neurosurgeon. According to Dr. Barbaree, he continued to treat Mr. Grider while he was under the care of other physicians and observed a diminished range of motion in all directions and tightness and tenderness in his neck. It was his opinion that Mr. Grider’s long-term prognosis was “poor” due to the number of his symptoms and the length of time they had been present. He opined that Mr. Grider could no longer perform the duties of a railroad conductor, and that his disability for this particular occupation was permanent. As he believed that Mr. Grider would continue to experience headaches and muscle spasms or “flare-ups” two or three times a year, Dr. Barbaree stated that he would need chiropractic treatment for his “chronic problem.” He concluded that he disagreed with Dr. Mason’s opinion that, after he released Mr. Grider, his soft tissue injury would eventually heal completely.

Dr. Mason testified that Mr. Grider did “fairly well” on his first follow-up visit after a myelogram and subsequent cervical fusion surgery, as he had mild discomfort in his shoulders, weakness in his left arm, and sleeplessness. During his next visit, Dr. Mason observed Mr. Grider’s “excellent strength,” while recommending a “work hardening” program for loss of motion in his neck. Approximately two months later, Dr. Mason scheduled a second myelogram and a CT scan due to Mr. Grider’s complaint that he would develop neck and arm pain when he became active. Based on the results of these tests, Dr. Mason performed a second cervical fusion surgery. Following this procedure, Mr. Grider’s left arm strength improved, although he was still having some neck and left shoulder pain. It was Dr. Mason’s opinion that, as Mr. Grider’s bone graft fused, his symptoms would resolve. At a follow-up MRI, Dr. Mason observed that the fusions in Mr. Grider’s neck were “solid” and “looked good,” as he saw no disk herniation or pressure on the spinal cord or nerve roots. He then referred Mr. Grider to Dr. Robert Valentine, an anesthesiologist, for chronic pain management, who he expected would find that Mr. Grider was neurologically intact. It was Dr. Mason’s diagnosis that Mr. Grider had chronic pain, but that his overall prognosis was “good.” He opined that Mr. Grider would have problems doing different tasks as a conductor based on his “subjective complaints of pain.” According to Dr. Mason, the objective data of Mr. Grider’s exam did not give him any indication that he would have problems, as there was no physical impairment that would prevent him from doing the tasks; rather, the pain in his muscles and neck would prevent the procedures in question. Dr. Mason concluded that Mr. Grider may need physical therapy and anti-inflammatory medication for muscle spasms, and that Mr. Grider seemed to be “conscientious” during his treatment of him and “genuine” in his complaints.

Dr. Valentine testified that he treated Mr. Grider for “myofascial syndrome.” His opinion as to Mr. Grider’s prognosis was that he was “probably as good as he’s going to be.” Dr. Valentine further stated that Mr. Grider could expect to have flare-ups about two or three times a year for the rest of his life, and that he would do well with two weeks of physical therapy in response to the flare-ups. It was Dr. Valentine’s testimony that Mr. Grider would not be able to carry heavy loads or to push or pull on heavy things.

Stan Smith, an economist, testified that he calculated Mr. Grider’s past wages at $125,441, his future lost wages for 22 years of work at $931,776, and the value of his health, dental, and life insurance benefit payments at $125,439. Crediting approximately $98,000 for a job that Mr. Grider could earn at $6.40 per hour as a bookkeeper, Mr. Smith estimated that, at present value, Mr. Grider’s total loss of wages and benefits was $1,110,967.

Neither Railway nor Oakley Trucking presented witnesses relating to Mr. Grider’s injuries and resulting damages, but relied upon their examination of Mr. Grider and the witnesses who testified on his behalf.

In reviewing the evidence of Mr. Grider’s injuries presented at trial, we do not regard the award of compensatory damages as shocking. In sum, there was no compelling proof of prejudice or influence of such kind as to justify disturbing the jury award. See B & F Eng’g, Inc. V. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992).

IV. Directed verdict

On cross-appeal, Oakley Trucking asserts that the trial court erred in denying its motion for directed verdict. At the close of Mr. Grider’s case-in-chief, Oakley Trucking moved for directed verdict “on paragraph four of count II” of Mr. Grider’s amended complaint relating to the allegation that Mr. Montgomery’s failure to exercise ordinary care or to keep a proper lookout caused the accident. The trial court denied the motion. At the close of all the evidence, Oakley Trucking renewed its motion on the basis that there was “no proof of a substantial nature that Mr. Doyle Montgomery on behalf of Oakley was negligent in proximately causing the accident in question.” The trial court once again denied the motion.

A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995). Thus, we review the evidence in a light most favorable to Mr. Grider, the non-moving party, and give it its highest probative value, taking into account all reasonable inferences. Id. In doing so, we hold that Oakley’s Trucking’s argument is meritless.

Mr. Montgomery, the driver of the dump truck, testified that he did not stop before he went out on the rails of the crossing, although admitting that this was a “blind” and “dangerous” intersection and that he had stopped at the crossing previously. It was his testimony that, because of the weeds, he could not get a clear view of the railroad track until he was actually in the crossing. Mr. Montgomery further stated that he had traveled through the crossing in question approximately one hundred times in the months before the accident. On the date of the accident, he stated that he was on his fifth load “from the Arkalite plant to the barges,” that he got paid by the number of loads he carried, and that this particular route through the crossing was a “short cut” to the barges. At one point during his testimony, Mr. Montgomery stated that “[y]ou can’t really stop on a steep incline or you’ll tear your clutch out or break the axle.” He concluded, during cross-examination, that although the rule in his company’s handbook was to stop, look, and listen at train tracks, he did not stop at the tracks when the accident happened.

Deputy James Lemmons testified that he interviewed Mr. Montgomery on the date of the accident. According to Deputy Lemmons, Mr. Montgomery told him that “he was heading east, and that in order to get over the railroad tracks, he had to get a full head of steam up.” Mr. Montgomery testified that he did not recall making this statement to Deputy Lemmons.

Oakley Trucking asserts that Railway’s failure to keep the crossing free from weeds and vegetation was the sole and proximate cause of the accident. The jury disagreed, finding Railway 75 percent negligent and Oakley Trucking 25 percent negligent. In reviewing the evidence in the light most favorable to Mr. Grider, we cannot say that the trial court erred in refusing to direct a verdict in Oakley Trucking’s favor, as there was substantial evidence that Oakley Trucking’s driver, Mr. Montgomery, failed to exercise ordinary care or to keep a proper lookout, which constituted negligence that was a proximate cause of Mr. Grid-er’s injuries.

Affirmed.


author: Jack Holt, Jr., Chief Justice. Robert L. Brown, Justice,

text:
    Jimmy Lane WICOFF v. STATE of Arkansas
    CR 94-338
    900 S.W.2d 187
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      Richard S. Paden, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal concerns post-conviction relief sought by the appellant, Jimmy Lane Wicoff, who was convicted of sexual abuse in the first degree and incest with his ten- and eleven-year-old stepdaughters, and sentenced to ten years’ imprisonment on each charge, with the sentences to run consecutively. Wicoff appealed his case to the Court of Appeals, which, in an unpublished opinion, affirmed his conviction. Wicoff v. State, CACR 91-249 (Ark. App. September 30, 1992). Thereafter, he filed a petition for post-conviction relief in circuit court, alleging several bases upon which his counsel was ineffective. Following a hearing, the circuit court denied Wicoff’s petition. We reverse and remand for a new trial because Wicoff was denied effective assistance of counsel.

This court will reverse a trial court’s denial of post-conviction relief only if its findings are clearly erroneous or clearly against the preponderance of the evidence. Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995); Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). In Vickers, this court reiterated its previous summary of the standard of review applicable to ineffective assistance of counsel claims in Pogue v. State, 316 Ark. 428, 432-33, 872 S.W.2d 387, 389 (1994), as follows:

[C]laims of ineffective counsel . . . must be examined in light of the standard set in Strickland v. Washington, 466 U.S. 68 (1984). That standard provides a two-prong test that must be met: (1) that the deficient performance of counsel must have resulted in errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) prejudice resulted which deprived the petitioner of a fair trial. Id. There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and the petitioner alleging differently has the burden of overcoming that presumption. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). In assessing trial counsel’s performance, we make every effort to eliminate the distorting effects of hindsight. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992).

We thus must address Wicoff’s allegations of ineffective assistance of counsel under the standards set forth in Strickland v. Washington, supra.

Wicoff first alleges that his counsel, Baxter County Public Defender Christopher O’Hara Carter, was aware of and had substantial information of evidence of the victims’ prior sexual conduct with other persons that would have been relevant to issues at trial. He urges that Mr. Carter failed to file a motion under Arkansas’s Rape Shield Statute, codified at Ark. Code Ann. § 16-42-101 (1987) et seq., 'to show that the victims’ prior sexual conduct was relevant for the purpose of impeaching their testimony by establishing that the two girls were involved in prior sexual abuse with other parties. Wicoff specifically claims that these episodes were relevant for the purpose of explaining why the victims, albeit of tender years, could have testified in such graphic detail about matters of sexual contact separate from the current incident and that their allegations were manufactured. He further asserts that in the absence of this evidence, the jury was free to conclude erroneously that the victims were too young to have fabricated a story with such explicit detail.

Attached to Wicoff’s A.R.Cr.P. Rule 37 petition was an investigative narrative completed by a Department of Human Services caseworker that indicated that, in 1988, the girls had been molested by two teenage male babysitters. Further, Wicoff’s attorney, Mr. Carter, admitted at the Rule 37 hearing that he had learned from his client’s mother that the girls’ father, Randall Ciesielski, had been accused of molesting them on two occasions in Illinois. He further acknowledged that he had been furnished an Arkansas State Police report that indicated that the eleven-year-old had made allegations to Sergeant Mary Kesterson that Wicoff’s brother, Johnny Wicoff, had “showed his sperm” to her and wanted her to touch his sperm.

At the Rule 37 hearing, Mr. Carter explained his failure to file a motion relating to the victim’s prior sexual conduct, stating:

I was not satisfied with the information that I was able to discover concerning the prior sexual episodes of the children. However, as a defense attorney, I am not entitled to records of other incidents, especially records held by children in youth services involving sexual allegations. The information I had through one source or another was probably more than the Supreme Court said I was entitled to.

Mr. Carter further explained that, while he subpoenaed Mr. Ciesielski, he chose not to call him as a witness at Wicoff’s trial because, in addition to denying the allegations made against him, Mr. Ciesielski would have testified that he had talked with his daughters and had “believed their story” with respect to the allegations against Wicoff. He further stated that he was aware that the victims had also made an allegation about a boy in Illinois.

Mr. Carter’s decision not to request a hearing under Arkansas’s rape-shield statute to explore the relevance of evidence of the victims’ prior sexual conduct, may not, standing alone, be sufficient to establish ineffective assistance of counsel. However, when we consider this circumstance together with counsel’s failure to call as a witness Wicoff’s grandmother, Ms. Dickerson, who would have testified that the eleven-year-old had told her that she had fabricated the allegations against Wicoff, we must conclude that Mr. Carter’s conduct falls below an objective standard of competence. These acts of omission clearly resulted in prejudice to Wicoff.

Ms. Dickerson testified at the Rule 37 hearing that the eleven-year-old victim had told her that she had fabricated the incident because she was mad at Wicoff, as he would not take her to Illinois to visit her grandmother. Ms. Dickerson further stated that she had informed Mr. Carter of this conversation. Mr. Carter explained that he did not call Wicoff’s grandmother to testify because she was a relative and that, if her testimony would have had any influence on the jury, it would have only “infuriated” them. He further contended that, based on his arguments and his objections to other evidence, his belief was that the case would have been dismissed, or, alternatively, that it would have been reversed on appeal. According to Mr. Carter, he had subpoenaed Ms. Dickerson and other witnesses who were present at the trial and prepared to testify, but he made the decision not to call her only after the State had presented its case.

Granted, counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986). We have stated that matters of trial strategy do not form the basis for post-conviction relief. Pogue v. State, 316 Ark. 428, 872 S.W.2d 87 (1986); McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). However, we recognize that such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland v. Washington, supra, and that our ultimate inquiry must be to determine “whether counsel’s assistance was reasonable considering all the circumstances.” 466 U.S. at 688. Pursuant to these standards, we granted post-conviction relief in Russell v. State, 302 Ark. 274, 789 S.W.2d 720 (1990), where trial counsel failed to call, in Russell’s trial for murder, a witness whose testimony could have created a reasonable doubt in the minds of the jurors, as this evidence could have established that the State’s eyewitness had a motive to kill the victim.

While Mr. Carter, unlike counsel for Russell, did offer a reason for not calling Ms. Dickerson as a witness, stating that she was a relative, we cannot say that, under the facts presented, his decision was supported by reasonable professional judgment. At trial, the evidence against Wicoff was limited to the testimony of the two girls. The doctor who examined them testified that there was no physical evidence of sexual abuse, and that, in his opinion, the girls’ accounts of the incidents were reliable. As such, the credibility of the girls’ testimony was highly relevant, as their testimony was, in essence, the State’s only evidence against Wicoff. Ms. Dickerson’s testimony that the eleven-year-old had admitted to her that she had fabricated the incident would have served to impeach the minor’s credibility. Although Ms. Dickerson was available to testify to this conversation at trial, counsel for Wicoff did not call her or any witnesses on his behalf. Counsel for Wicoff readily admitted, however, through his own testimony at the Rule 37 hearing, that Ms. Dickerson’s testimony “would have shed doubt on Jimmy’s guilt [sic].”

Under these circumstances, we have no hesitancy in holding that there was a reasonable probability that the outcome of the trial would have been different had Mr. Carter fully explored information concerning the victims’ prior sexual contact, and, in particular, had he called Ms. Dickerson as a witness. Both the information regarding the victims’ sexual conduct and Ms. Dickerson’s testimony could have established that the girls had fabricated the allegations against Wicoff.

Because we reverse and remand for retrial for the reasons stated, it is not necessary that we examine the remaining allegations of ineffective assistance of counsel, as in all probability they will not reoccur during the course of a subsequent trial.

Reversed and remanded.

Glaze, Corbin and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. The majority opinion concludes that there was ineffective assistance of counsel by the public defender. Because the appellant has not furnished this court with a record of the original trial, we have been forced to make a decision largely in the dark. I cannot reach a conclusion of ineffectiveness based on piecemeal evidence without knowing what transpired at the original trial. Moreover, the allegations of the appellant appear to be largely matters of trial strategy. I would affirm.

The majority sets forth the correct test for assessing ineffectiveness at trial: (1) error committed by trial counsel, and (2) prejudicial impact deriving from that error. Strickland v. Washington, 466 U.S. 68 (1984). We have stated that for the error of trial counsel to warrant a new trial, it must be so prejudicial as to have affected the outcome of the trial. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992).

The majority’s reversal in the instant case turns on the public defender’s failure: (1) to explore calling the girls’ natural father who was previously suspected of molesting the girls, and (2) to call the defendant’s grandmother who told trial counsel that one of the victims ■ said what she did about Wicoff because she was mad at him for not taking her to Illinois.

In the past, this court has looked to the abstract or record to determine the effectiveness of counsel at trial. See, e.g., Bowers v. State, 292 Ark. 249, 729 S.W.2d 170 (1987); Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). In this case, we do not know how the public defender conducted himself in cross-examining State witnesses, how he argued the case, and how he presented Wicoff’s defense in general. It is extraordinarily difficult, if not impossible, to conclude that the outcome of a defendant’s trial was altered by the absence of two witnesses without knowing what else took place at trial. Most importantly, we have no idea what the testimony of the two victims was.

I also see no reason to second guess the public defender’s conclusions about the two witnesses. The trial court, who presided over the trial, found that Wicoff’s complaints about trial counsel were a matter of trial strategy. In the same vein, this court has repeatedly stated in Rule 37 cases that the decision to call certain witnesses is largely a matter of trial strategy. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990); Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988); Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984).

The public defender testified at the Rule 37 hearing that he was fearful about calling the victims’ natural father, Randall Ciesielski, because he believed that the father would support the girls’ accusations. There is, too, the almost certain fact that any suggestion of the father’s prior sexual conduct with the girls would have been excluded under the Rape Shield Act, codified at Ark. Code Ann. § 16-42-101 (1987). Thus, counsel’s failure to pursue calling Mr. Ciesielski appears eminently reasonable.

With regard to the grandmother, Ethel Dickinson, the public defender believed that her testimony would have been suspect due to her relationship with the defendant and would have alienated the jury. I cannot say that the public defender’s judgment was clearly in error. The majority suggests that the public defender admitted Ms. Dickinson’s testimony would “shed doubt” on Wicoff’s guilt and, thus, essentially admitted his own ineffectiveness. I do not read his testimony that way. What he stated was that the grandmother’s testimony would shed doubt on the defendant’s guilt, but he then balanced this against other factors and decided not to call her. He gave these reasons for not calling her at the Rule 37 hearing:

The first reason, and probably the most obvious, is she’s a relative. And putting a relative on the stand who will basically say, “This is what the girls told me,” I don’t think has much influence on a jury and, if anything, would more infuriate a jury, by just calling a relative saying, “This is what they told me, therefore he should be acquitted.” In addition, I believe that, based on the record, I had established up to that point, based on my arguments based on the Johnson case and on Dr. Wilber’s testimony, that the case should have been at that point dismissed by the Court; and if it wasn’t, the jury would have found him not guilty, and then take it a step further that, if he was found guilty, the Court of Appeals would reverse it.

In short, it appears that the public defender decided to stand on his motion for a directed verdict and not call any witnesses. That is a strategic decision.

Prejudicial error should not be considered in a vacuum but assessed in light of all the pertinent facts. Without knowing what happened at the first trial, I cannot say that the public defender’s decisions about two witnesses affected the outcome of the trial. To do so insinuates this court into the role of plotting trial strategy without a sufficient basis for doing so. ’ -

Glaze and Corbin, JJ., join in this dissent.