author: David Newbern, Justice.

text:
    Melvin David MURRELL as Successor Administrator of the Estate of Bonnie Marie Murrell, Deceased; Melvin David Murrell, as Special Administrator of the Estate of Melvin Dale Murrell, Deceased, as Surviving Spouse of Bonnie Marie Murrell, Deceased; and Melvin David Murrell, Belinda Gail Burke, and Marie Sue Murrell, Surviving Children of Bonnie Marie Murrell, Deceased, and Melvin Dale Murrell, Deceased v. SPRINGDALE MEMORIAL HOSPITAL; John Power, M.D.; and Teryl Ortego, M.D.
    97-91
    952 S.W.2d 153
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Bob Estes and Raymond C. Smith, for appellants.

      Bassett Law Firm, by: Dale Garrett and James M. Graves, for appellee Springdale Memorial Hospital.

      Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by: Charles Ledbetter and Virginia C. Trammell, for appellee John Power, M.D.

      Davis, Cox & Wright, by: Constance G. Clark, for appellee Teryl Ortego, M.D.
   David Newbern, Justice.

This is an appeal of a dismissal of one wrongful-death action and a summary judgment in a second wrongful-death and survival action. The dismissal and summary judgment favored Springdale Memorial Hospital and Doctors John Power and Teryl Ortego. The claims arose from the death of Bonnie Marie Murrell, who died November 26, 1990, while at Springdale Memorial Hospital for treatment of a bleeding gastrointestinal tract. We hold that a claim brought by Ms. Murrell’s widower, Melvin Dale Murrell, prior to proceedings in probate, did not survive his death and that a subsequent claim brought by Melvin Dale Murrell as Ms. Murrell’s personal representative and the claims of her children were barred by the statute of limitations.

On November 23, 1992, Melvin Dale Murrell, as surviving spouse of Ms. Murrell, filed an action pursuant to Ark. Code Ann. § 16-62-102 (Supp. 1995), alleging malpractice on the part of Dr. Power, Dr. Ortego, and the Hospital resulting in Ms. Murrell’s death. The lawsuit was styled Melvin Murrell, as Surviving Spouse of Bonnie Marie Murrell, Deceased v. Springdale Memorial Hospital; John Power, M.D., and Teryl Ortego, M.D. Mr. Murrell sought damages for medical expenses, funeral expenses, conscious pain and suffering of the decedent prior to her death, loss of services and companionship of the decedent, loss of earnings of the decedent, and mental anguish of the surviving spouse and children of the decedent. Mr. Murrell also sought punitive damages. The complaint listed as statutory beneficiaries Melvin Murrell, Melvin David Murrell, Belinda Gail Burke, and Marie Sue Murrell. When the complaint was filed, there was no estate opened for the decedent; consequently, there was no administrator. On December 28, 1993, the Hospital moved to strike the part of the complaint alleging damages on behalf of the decedent and the children of the decedent who were not named as plaintiffs. On February 17, 1994, Melvin Dale Murrell opened an estate for his deceased wife and was appointed administrator. He moved to be substituted in his new status as administrator in the original suit he had filed personally. Pursuant to Ark. R. Civ. P. 41, Mr. Murrell took a voluntary nonsuit of that claim on March 4, 1994, without any ruling having been entered on the motion to substitute.

On February 28, 1995, a second complaint was filed by Melvin Murrell as administrator of the estate- of Bonnie Marie Murrell, deceased, and as surviving spouse of Bonnie Marie Murrell, deceased, and David Murrell, Belinda Gail Burke, and Marie Sue Murrell as the surviving children of Bonnie Marie Murrell, deceased. It repeated the allegations of the earlier complaint.

In September, 1995, the Hospital and the doctors moved for partial summary judgment. They argued that, although the statute of limitations was tolled for Melvin Dale Murrell’s claim when he nonsuited, the claims of the estate and the other heirs at law were time barred. The Trial Court denied the motions on the basis that the body of the first complaint sought damages on behalf of the surviving children, the surviving spouse, and the damages that could be recovered by the estate of the deceased, and thus the defendants were put on notice that these damages were sought and the action was filed by an heir of the deceased.

On August 22, 1996, Melvin Dale Murrell died. His son, Melvin David Murrell, was appointed successor administrator for the estate of Bonnie Marie Murrell. He was also appointed special administrator of the estate of Melvin Dale Murrell to perform all acts as necessary to pursue the claim of Melvin Dale Murrell in the action.

The Hospital and the doctors then moved to dismiss the complaint, arguing that the claim of Melvin Dale Murrell, as the surviving spouse of Bonnie Murrell, did not survive his death. They also moved the Trial Court to reconsider their summary judgment motions. In response, the Trial Court dismissed Melvin Dale Murrell’s complaint and granted the summary judgment motions.

Melvin David Murrell and the other surviving children of Bonnie Marie Murrell contend that the Trial Court erred in granting summary judgment and dismissal as to the claims of (1) Melvin Dale Murrell, (2) the children of Bonnie Murrell, and (3) the estate of Bonnie Murrell. They argue that the 1992 complaint alleged two separate causes of action: (1) an action on behalf of the heirs, including the surviving spouse of Bonnie Murrell and the children of Bonnie Murrell, pursuant to the Wrongful Death Act, Ark. Code Ann. § 16-62-102 (1987 and Supp. 1995), and (2) an action on behalf of the estate pursuant to Ark. Code Ann. § 16-62-101 (1987).

1. Melvin Dale Murrell’s claim

Melvin Dale Murrell’s initial complaint, filed prior to the opening of Bonnie Marie Murrell’s estate, was appropriately brought according to § 16-62-102(b), and it was within the applicable two-year statute of limitations. See Ark. Code Ann. § 16-114-203(a) (Supp. 1995); Pastchol v. St. Paul Fire & Marine Ins., 326 Ark. 140, 929 S.W.2d 713 (1996); Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996). When he took a voluntary nonsuit on March 4, 1994, pursuant to Ark. R. Civ. Pro. 41, he had one year from that date to refile. Ark. Code Ann. § 16-56-126 (1987). Melvin Dale Murrell filed the second action on February 28, 1995, which was within the one-year period. When Melvin Dale Murrell died on August 22, 1996, the issue arose as to whether his wrongful-death claim survived his death.

The statutory provision for the survival of actions beyond the death of a claimant is § 16-62-101, which provides:

For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and the action may be brought by the person injured or, after his death, by his executor or administrator against the wrongdoer or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts.

Melvin Dale Murrell’s action for the wrongful death of his wife did not survive his death. We have consistently held that a wrongful-death claimant does not suffer an “injury to his person or property” as those terms are used in the survival statute. White v. Maddux, Special Admr., 227 Ark. 163, 296 S.W.2d 679 (1956); Jenkins, Admr. v. Midland Valley Rd. Co., 134 Ark. 1, 203 S.W. 1 (1918).

2. The children and estate of Bonnie Marie Murrell

The wrongful-death claims of the children of Bonnie Murrell and the survival claim of the estate of Bonnie Murrell are barred because the parties did not file suit prior to 1995. The savings statute, § 16-56-126, cannot save their claims because the children were not parties to the first action. It provides that if “the plaintiff therein suffers a nonsuit” then “ the plaintiff may commence a new action within one (1) year . . . .” (Emphasis supplied.) See Rogers v. Williams, Larson, Voss, et al., 777 P.2d 836, 839 (Kan. 1989).

The second action brought by Melvin Dale Murrell as administrator of the estate of Bonnie Marie Murrell was simply filed too late. The fact that Mr. Murrell’s first claim might have been the beneficiary of the savings statute, at least until his death, is not relevant to the timeliness or untimeliness of the second action. A wrongful-death action brought by a plaintiff in his individual capacity pursuant to § 16-62-102 involves neither the same action nor the same plaintiff as a survival action brought by the plaintiff in his representative capacity on behalf of the decedent’s estate pursuant to § 16-62-101. See Smith v. Tang, 926 S.W.2d 716, 719 (Mo. App. E.D. 1996).

It is argued that, because a personal representative bringing a wrongful-death action is no more than a trustee for the beneficiaries, Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953) (George Rose Smith, J., dissenting), the beneficiaries of Bonnie Marie Murrell were the “real parties in interest” in the first action in accordance with Ark. R. Civ. P. 17(a). While that rule requires that actions be brought in the name or names of the real parties in interest, we have been cited to no authority in which it has been held that a complaint brought in the name of one party is automatically converted into a complaint on behalf of others as a result of the rule.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Alvin B. JACKSON v. STATE of Arkansas
    CR 96-836
    954 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997
    [Petition for rehearing denied November 6, 1997.]

      Bynum & Kizer, by: Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Alvin Jackson was serving a life sentence without parole in prison for one count of capital murder and two counts of attempted murder when he stabbed a prison guard to death. In this appeal, Jackson does not challenge the sufficiency of the State’s evidence leading to his capital murder conviction for killing the guard, but he raises five other points for reversal. We consider each point in the order presented in his brief.

Jackson first contends that the State unconstitutionally exercised two of its challenges when striking two black persons, Arlene Camp and Carl McCraney. He relies on Batson v. Kentucky, 476 U.S. 79 (1986), where the Court held that the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on the basis of race. In determining whether such a violation has occurred, we apply a three-step analysis. First, the defendant must make a prima facie case that racial discrimination is the basis for excluding the juror. Second, if the court concludes that the defendant has made this showing, the State must provide a racially-neutral explanation for striking the juror. The trial court must then determine from all the relevant circumstances the sufficiency of the offered explanation. Third, if the court is not satisfied with the State’s explanation, it must conduct a sensitivity inquiry, and the defendant must explain how the State’s racially-neutral explanation is merely a pretext. Roseby v. State, 329 Ark. 554,_S.W.2d_(1997).

The first of the three-step analysis above requires us to determine whether Jackson proved a prima facie case of discrimination which may be established by (1) showing that the totality of the relevant facts give rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportional exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).

In the present case, Jackson made no effort to show a disproportionate exclusion of blacks from the jury, nor did he show a pattern of strikes evidencing a discriminatory purpose. In fact, two black males were seated on the jury, and as this court has previously stated, the best answer the State can have to a charge of discrimination is to point to a jury which has black members. Id.; see also Roseby, 329 Ark. at 562. In this respect, we also note that, while the State was entitled to ten peremptory challenges, it used only six. Additionally, Jackson presented no evidence that the prosecutor made any racial statements or asked any racial questions. In sum, Jackson failed to show a prima facie case.

Even if Jackson had shown a prima facie case, the State’s explanations for challenging Camp and McCraney were racially neutral, and the circuit court was well within its discretion to deny the Batson challenge. Ms. Camp, for example, had an ex-husband who had been charged with past crimes by the same prosecutor who was prosecuting this case. More pertinent, Ms. Camp, too, had been in the prosecutor’s office in connection with past serious crimes. While Jackson complains that the prosecutor’s “information was not gathered from questioning Ms. Camp,” he cites no authority such information must be furnished by the challenged juror. To the contrary, it is accepted practice for the prosecution as well as the defense to undertake a pretrial investigation of prospective jurors. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 21.3, at 724 (1984).

Jackson’s argument concerning the State’s peremptory challenge of Mr. McCraney also must fail. When defense counsel raised a Batson objection to the State’s use of a peremptory challenge to venireman McCraney, the prosecutor explained that he had previously prosecuted McCraney’s nephew and the prosecutor’s information was that the nephew lived with McCraney. The State added that McCraney was also evasive when asked his opinion about the death penalty. Defense counsel’s only rejoinder questioned whether the prosecutor gathered information concerning Mr. McCraney “outside the courtroom” and argued venireman McCraney was no different than white venireperson Ms. Krank who had a nephew who had been previously prosecuted. Again, it is difficult to understand the relevance of Jackson’s argument regarding where the State “gathered its information,” but the trial judge very clearly pointed out the difference in Ms. Krank’s situation from that of McCraney’s, stating Krank’s nephew had been prosecuted by another prosecutor in a different circuit. In sum, Jackson failed in showing a prima facie case, but even if he had, the State gave racially neutral explanations for its striking both Camp and McCraney. Once again, we point out that the record reflects the jury contained two black members and the State had exhausted only six of its ten peremptory challenges. Given the proof and record before us, the trial court’s ruling on the Batson issue was unquestionably correct. See Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996).

Jackson next asks the court to reconsider its decision in Kemp v. State, 324 Ark. 17, 919 S.W.2d 943 (1996), cert. denied, 117 S.Ct. 436 (1996), where this court held the introduction of victim impact evidence is not a deprivation of a defendant’s right of due process. Specifically, he argues on appeal that Ark. Code Ann. § 5-4-602(4) (Repl. 1994), a procedural statute, created a new aggravating circumstance, which he contends violates the Due Process Clause. Also, he claims it denies his due process rights because the statute represents a wholesale departure without guidelines from the normal sentencing scheme which permits aggravating factors to be weighed against mitigating factors. For whatever reason, the trial court was never asked to rule on these arguments. Thus, because these arguments are not preserved on appeal, we do not consider or discuss them. Nichols v. State, 328 Ark. 339, 994 S.W.2d 83 (1997).

In his third point, Jackson argues that the sentencing provisions in Ark. Code Ann. § 5-4-603 (Repl. 1994) are unconstitutional because they prohibit the jury from exercising mercy, and therefore amount to a mandatory death penalty. This identical argument was made in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, 116 S.Ct. 1436 (1996), and the court rejected it. We need not address it again.

Jackson’s fourth point asserts the trial court erred when it refused to prohibit the State from seeking the death penalty. Jackson claims that the State has historically imposed the death penalty in a racially discriminatory manner against blacks who kill whites. While he refers to a Stanford law review article when arguing this point, Jackson presented no evidence showing racial considerations had played a part in his sentence. The Supreme Court and this court have held that for such an argument to prevail under the Equal Protection Clause, the defendant must prove that the decisionmakers in his case acted with discriminatory purpose. See McCleskey v. Kemp, 481 U.S. 279 (1987); Nooner, 322 Ark. 87, 907 S.W.2d 677.

Finally, Jackson contends the trial court erred by allowing the State to utilize two aggravating circumstances during sentencing. He claims these aggravating factors, Ark. Code Ann. § 5-4-604(1) and (3) (Repl. 1993), were duplications and were unconstitutional “double counting” awry of the eighth amendment. In brief, Jackson’s objection was the State should not be permitted to prove two aggravating circumstances with the same evidence. The two provisions and aggravating factors at issue read as follows:

(1) The capital murder was committed by a person imprisoned as a result of a felony conviction.
(3) The person 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.

The trial court denied Jackson’s argument, reasoning that the legislature intended to cover two separate aggravating factors by the above provisions, one, the evidence showed Jackson had a prior violent criminal history, and two, the proof also showed he was a prison inmate. The trial court was correct.

Terry Campbell, warden at the maximum security unit, testified that Jackson was incarcerated there on November 29, 1995, the day that he murdered the guard. Mr. Campbell also testified that, at the time of the murder, Jackson was serving sentences for one count of capital murder and two counts of attempted capital murder. The State introduced copies of the judgment and commitment orders showing that Jackson had committed these crimes. From this evidence, the jury found that the State proved both aggravating factors showing two separate aspects of Jackson’s criminal history beyond a reasonable doubt.

Jackson urges this court to adopt the holding in Collins v. Lockhart, 754 F.2d 258 (1985), where the Eighth Circuit found that an aggravating circumstance that duplicates an element of a crime is in violation of the eighth amendment. We fail to see the ruling in Collins as applicable here. Nevertheless, Collins was overruled in Perry v. Lockhart, 871 F.2d 1384 (8th Cir. 1989), based upon the U. S. Supreme Court’s decision in Lowenfield v. Phelps, 484 U.S. 231 (1988). Therefore, Collins is no longer good law.

Our decision appears in line with other states that have dealt with this precise issue. For example, appellate courts in North Carolina, Oklahoma, and Florida have found that the aggravating factors of being under sentence of imprisonment and being previously convicted of another felony involving violence do not cover the same aspect of the defendant’s criminal history. State v. Rich, 484 S.E.2d 394 (N.C. 1997); Green v. State, 713 P.2d 1032 (Okl. Cr. 1985); and Delap v. State, 440 So.2d 1242 (Fla. 1983). In Delap, the court reasoned that the defendant could be under a sentence of imprisonment without having been convicted of a felony involving violence. Id. at 1256. Conversely, a defendant could be convicted of a felony involving violence without being under a sentence of imprisonment. Id. In short, those aggravating circumstances are exclusive of each other, and including them both in the weighing process does not constitute a doubling of aggravating circumstances. Id. Accordingly, for the reasons above, we reject Jackson’s “double-counting” argument.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined in its entirety and no other rulings adverse to Mr. Jackson involving prejudicial error were found. We affirm.

       Gross and Mauro, Patterns of Death, An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27 (1984).


author: Donald L. Corbin, Justice.

text:
    Eloise TURNER v. Calvin STEWART
    97-227
    952 S.W.2d 156
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Richard N. Dodson, for appellant.

      Dunn, Nutter, Morgan & Shaw, by: W. David Carter and Christie G. Adams, for appellee.
   Donald L. Corbin, Justice.

Appellant Eloise Turner appeals the judgment of the Miller County Circuit Court in favor of AppeEee Calvin Stewart and his wife Denise Stewart. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(15). AppeEant raises three points on appeal: (1) AppeEee was improperly aEowed to amend his answer without malting a showing of sufficient reasons why he should be aEowed to amend; (2) the trial court erred in submitting a jury instruction on comparative fault; and (3) there was no substantial evidence to support the jury’s finding. We find no merit and affirm.

The record reveals the foEowing relevant facts. On July 29, 1989, AppeEant caEed AppeEee to borrow some card tables. AppeEee agreed to loan her the tables and AppeEant stated she would come by AppeEee’s house to get them. When AppeEant arrived at AppeEee’s home, AppeEee was outside in the side yard with his dog, a male Rottweiler named Thunder. Appellant went to the front porch and rang the bell several times. While on the porch, Appellant saw the dog looking at her from around the side of the house. When no one came to the door, Appellant decided to go around to this same side of the house where she heard water running. When she reached the side of the house, Appellant saw Appellee and his dog.

Appellant testified at trial that after talking briefly with Appellee, Appellee called Thunder’s name and the dog started in her direction. She stated that she turned her back and ran from the dog toward the front of the house. She stated that Thunder jumped on her and bit her left arm and that she fell to the ground. She stated that she received injuries to.her right shoulder and a wound to her left arm. Appellee, on the other hand, stated that he did not see the dog jump on Appellant. He testified that he saw Thunder running in Appellant’s direction, as she was going around the corner. He stated that he then called Thunder and the dog returned to the side of the house. After putting the dog away, Appellee indicated that he took Appellant inside the house to look at her injuries. Appellee asked Appellant if she had seen the dog and inquired as to why she did not stay inside her car and honk for him to come out of the house. Appellee then took Appellant to the hospital, where Appellant stated to hospital personnel that her injuries were a result of falling while running from a dog.

On August 1, 1989, Appellee brought Thunder to Dr. Cynthia Pfluger, the dog’s veterinarian, for shots. At that time, Dr. Pfluger advised that the dog should be castrated or undergo obedience training due to what Dr. Pfluger’s observation of the dog’s aggressive tendencies. Dr. Pfluger also testified that on July 1, 1989, less than one month before the incident in question, Denise Stewart had called and advised that Thunder had bitten her mother, Verneener Stewart. Dr. Pfluger stated that she then recommended to quarantine the dog. At trial, however, Mrs. Stewart denied that Thunder had bit her mother; instead, she stated that the dog had merely scratched her mother’s face while he was chasing a cat. Verneener Stewart testified that she did not remember the incident. At the close of Appellant’s case, the trial court entered a directed verdict in favor of Denise Stewart. After deliberation, the jury returned a verdict in favor of Appellee.

Amended Answer

Appellant asserts that the trial court erred when allowing Appellee to amend his answer to an amended complaint. Appellant relies on ARCP Rules 6(b) and 12(a) in arguing that Appellee failed to set forth sufficient reasons showing the necessity for an extension of time to file his answer. Appellee asserts that ARCP Rule 15 provides that amendment of pleadings should be allowed unless prejudice or undue delay is shown by the party opposing the amendment.

The record reflects that after an amended complaint alleging strict liability was filed by Appellant on January 26, 1990, Appellee did not respond within twenty days as required by Rule 15. Appellant argues that but for the amended answer filed on March 22, 1990, Appellee would have been in default and Appellant would have been entitled to a partial summary judgment. On March 30, 1990, the trial court entered an order granting Appellee’s motion to file the amended answer, stating that Appellant would not be prejudiced by the amended answer. The question before us is whether the trial court abused its discretion in allowing the amended answer to be filed.

Although amendment of pleadings is encouraged, the trial court is vested with broad discretion in allowing or denying amendments. Kay v. Economy Fire & Cas. Co., 284 Ark. 11, 678 S.W.2d 365 (1984). Arkansas Rule of Civil Procedure 15(a) provides in part:

[A] party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 20 days after service of the amended pleading, whichever period is longer, unless the court otherwise orders.

Under Rule 15, a party may amend his pleadings at any time without leave of the court. If, however, the opposing party files a motion objecting to the amendment, the trial court must determine whether prejudice would result to that party or if the case would be unduly delayed by the amendment. Webb v. Workers’ Compensation Comm’n, 286 Ark. 399, 692 S.W.2d 233 (1985). An important consideration in determining prejudice is whether the party opposing the motion will have a fair opportunity to defend after the amendment. Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989). A party should be allowed to amend his pleading absent proof of prejudice, and the failure of the opposing party to seek a continuance is a factor to be considered in determining whether prejudice was shown. Webb, 286 Ark. 399, 692 S.W.2d 233. Where neither a continuance was requested nor a demonstration of any prejudice resulting from an amendment was shown, the amendment should be allowed. Id.

In this case, Appellant did not request a continuance or demonstrate that she would be prejudiced or that undue delay would result if the court should allow the amendment. By applying Rule 15, the trial court did not abuse its discretion in finding that the amended answer did not prejudice Appellant. Accordingly, it was not error for the trial court to allow the amendment.

Comparative Fault

Appellant argues that the trial court erred in submitting to the jury an instruction on comparative fault. Appellant argues that the comparative-negligence instruction should not have been given because there was no showing that Appellant proximately caused the dog’s attack. Appellee replies that the question to be asked is whether Appellant’s actions could have proximately caused her injuries. Comparative fault is an affirmative defense. Arkansas Code Annotated § 16-64-122 (Supp. 1995) provides in pertinent part: '

(a) In all actions for damages for personal injuries ... in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party . . . from whom the claiming party seeks to recover damages.
(c) The word “fault” as used in this section includes any act, omission, . . . which is a proximate cause of any damages sustained by any party.

Under the express language of the statute, there must be a determination of “proximate cause” before any “fault” can be assessed against the claiming party. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Baker v. Morrison, 309 Ark. 457, 829 S.W.2d 421 (1992). Proximate cause is a cause which, in a natural and continued sequence, produces damage, and without which the damage would not have occurred. Id. While the question of proximate cause is usually a question for the jury, when the evidence is such that reasonable minds cannot differ, the issue becomes a question of law to be determined by the trial court. Id. In Ambort v. Nowlin, 289 Ark. 124, 709 S.W.2d 407 (1986), the trial court’s instruction to the jury that it must determine whether appellant was at fault in the incident wherein appellees’ dog bit him, was supported by the evidence. This court held that the judge was correct in submitting the case to the jury on the basis of comparative fault, rather than on the theory of strict liability. There was a fact question as to whether appellant was a trespasser or a licensee when he was bitten by appellees’ dog, since he was on private property and had not been expressly invited there. There was also a fact question as to whether appellant was guilty of negligence in approaching the fenced yard on private property with two dogs, which were barking and causing him apprehension. This court concluded that although an owner can be held strictly liable in such instances, if there is an issue of the plaintiff s negligence or other fault, the plaintiffs recovery may be diminished by the doctrine of comparative fault.

Just as in Ambort, the jury in this case could have concluded that Appellant did not use good judgment, was negligent, and was partly at fault for her injuries. Appellant entered the yard despite the presence of “Beware of the Dog” signs in the front yard, approached the front door, and walked around to the side of the house where she had seen an unfamiliar dog. There was also evidence that could have supported the jury’s finding that Appellant’s injuries were proximately caused by her running from the dog, rather than from the dog’s attack. From the evidence presented, the jury could have disbelieved that Appellant was attacked and determined that her injuries were a result of her fall. Accordingly, it was not error for the trial court to instruct the jury on comparative fault.

Substantial Evidence

Appellant argues that the jury’s verdict in favor of Appellee was not supported by substantial evidence. When reviewing the sufficiency of the evidence, the appellate court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997). The verdict will be affirmed if there is substantial evidence to support it. Id. Substantial evidence is evidence that passes beyond mere suspicion or conjecture and is of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other. Id.

Appellant asserts that Appellee knew that the dog was a vicious animal due to its previous history and the circumstances surrounding the incident in question. She asserts that she was a licensee on Appellee’s property, and that Appellee thus owed a duty to her to exercise ordinary care to avoid injury to her. Appellant additionally points out that there was also a Texarkana city ordinance that she argues Appellee violated by allowing the dog outside the fenced area and that this violation should have also supported a verdict for Appellant.

A “licensee” is one who goes upon the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner. Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995). Appellant was a licensee allowed onto the premises of Appellee to retrieve the card tables. The question of the duty, if any, owed by one person to another is always a question of law and never one for the jury. Id. A landowner owes a licensee the duty to refrain from injuring him or her through willful or wanton conduct. Id. To constitute willful or wanton conduct, there must be a course of action which shows a deliberate intention to harm or utter indifference to, or conscious disregard of, the safety of others. Id. If, however, a landowner discovers a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the licensee. Id. The duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved. Id.

Here, the jury was instructed on the duty owed to a licensee and on the Texarkana ordinance. The pertinent question was whether Appellee knew his dog was vicious prior to the date of this incident. There was substantial evidence that Appellee had no knowledge that the dog was vicious. In fact, Appellee’s wife testified that she had no knowledge of the dog attacking anyone. She stated that the dog had previously scratched her mother when the dog was going towards a cat. Appellee’s mother-in-law Verneener Stewart testified that she had never been bitten by the dog. The veterinarian, while recommending obedience training or castration, only established that the dog was aggressive around the office for shots or checkups. Appellee testified that to his knowledge, the dog had never bitten or attacked anyone prior to this incident. We thus conclude that there was substantial evidence to support the jury’s verdict.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Tracy Trinette CALLOWAY v. STATE of Arkansas
    CR 97-398
    953 S.W.2d 571
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Jeff Rosenzweig, for appellant.

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

This appeal arises out of the murders of three children in Little Rock and the attempted murder of their mother. The appellant, Tracy Trinette Calloway, was convicted of three counts of murder in the first degree and one count of criminal attempt to commit murder in the first degree. She was sentenced to a total term in prison of 132 years. Her appeal raises three issues: (1) the propriety of a non-model jury instruction on accomplice liability, (2) the prosecutor’s placing her own character at issue in closing argument, and (3) the trial court’s discretion in refusing to grant defense counsel surrebuttal argument following the prosecutor’s rebuttal argument. We affirm the judgments of conviction.

On June 4, 1995, Biley Dobi Noel, Terry Carroll, Curtis Cochran, and Tracy Calloway were riding in Little Rock in Cochran’s car and, according to Calloway, “getting high” on drugs. They went to the home of Mary Hussian, where Calloway got out of the car and followed Noel and Carroll to the house. Just before they entered the house, Noel handed her a handgun, and she testified that she returned it immediately. Noel burst into the house, and Calloway followed, stopping just inside the doorway. Noel told three children in the residence to get down on the floor, and Calloway testified that she told them to do what Noel said. She watched Noel shoot each of the children in the head and kill them. The victims were Malak Hussian, age 10; Mustafa Hussian, age 12; and Marcel Young, age 17. According to Curtis Cochran, the murders were in retaliation for Yashica Young’s involvement in the death of Noel’s brother. Yashica Young was another child of Mary Hussian. Following the murders, Calloway testified that she ran from the house with Carroll.

On June 6, 1995, the Little Rock Police Department focused its investigation on a search of Calloway’s neighborhood in an effort to locate a suspect named “Tracy,” and Calloway surrendered herself to police officers that same day. Calloway gave a full statement indicating that she was with the young men at the time of the murders but stating that she was not aware of an intention to commit the killings.

At trial, the prosecutor’s theory of the case against Calloway was one of accomplice liability. Calloway’s defense was that she did not know what Noel and Carroll intended to do at the Hussian house and that she did not assist them in any way in the commission of the murders. The prosecutor presented testimony from Curtis Cochran, who was driving the vehicle that day. Cochran testified that everyone in the car knew where they were going and what Noel intended to do because Noel announced it in the car. According to Cochran, Noel gave Calloway a .45 caliber handgun while they were in the car, and she still had it when they went to the Hussian house.

Jack Thomas, a neighbor of the victim, also testified for the State and stated that he saw Calloway run from the Hussian house and that it appeared as though she was carrying a gun. Kyle Jones testified that he arrived at the Hussian residence with his fiancee, Marcel Young, and saw three people standing in- the carport: Noel, Cochran, and Calloway. The threesome asked Marcel and Kyle if Yashica Young was home, and Kyle said that he would check. Kyle and Marcel entered the house, and Kyle went to the back of the home to tell Marcel’s mother, Mary Hussian, that they were home. He heard someone burst in through the front of the house and heard Marcel scream. Kyle and Mary Hussian ran toward the front of the house and were intercepted by Carroll, who was carrying a shotgun. They retreated to the bedroom. Kyle went into the bathroom and closed the door. Mary Hussian hid behind the bed and dialed 911. Kyle testified that he heard three shots come from the front room and that he heard the shotgun blast in the bedroom just before he escaped through the window. Kyle eventually came back to the house and told police officers what he had seen.

Mary Hussian told the same story to the jury as Kyle did. She testified that when she hid behind the bed to call 911, Carroll yelled for her to come out from behind the bed. She pleaded with him not to kill her or her children. She eventually rushed Carroll, and they fought for control of the shotgun. The shotgun discharged in the struggle, and the shot went through the roof. Mary Hussian gained control of the gun and chased Carroll back through the house, where she saw her three murdered children lying on the floor. Carroll left through the front door. Mary Hussian saw three people in the house, but could only identify Carroll and Noel and not Calloway.

The State also contended at trial that Calloway’s original statement to the Little Rock police officers and her trial testimony were in conflict. She first told police officers that she was in the car and that Cochran and she picked up Carroll and Noel, but at trial she testified that the threesome picked her up to give her a ride home. She also testified at trial that she did not see any guns in the car until the group was about to go into the Hussian house. However, it was established at trial that two weapons were used at the murder scene — a .45 caliber pistol and a shotgun. Calloway admitted that Carroll was in the back seat of the two-door car with her but maintained that she did not see the shotgun.

The jury convicted Calloway of the four charges and subsequently sentenced her as stated above.

Calloway’s first assignment of error is that the trial court used a model jury instruction, AMCI 2d 401, instead of the amended AMCI 2d 401 proffered by her. AMCI 2d 401, which was given to the jury, reads as follows:

In this case, the State does not contend that Tracy Calloway acted alone in the commission of the offenses of Capital Murder and Criminal Attempt to Commit Capital Murder. A person is criminally responsible for the conduct of another person when she is an accomplice in the commission of an offense.
An accomplice is one who directly participates in the commission of an offense or when causing a particular result is an element of an offense, acting with respect to that result with the kind of culpability sufficient for the commission of that offense, she:
Solicits, advises, encourages, or coerces the other person to engage in that conduct causing the result; or aids, agrees to aid, or attempts to aid the other person in planning of the conduct causing the result.

Calloway sought to add the following language relating to “mere presence”:

Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice.

The language was refused, and defense counsel proffered the amended instruction for the record.

In reviewing the trial court’s decision to use a model jury instruction over a non-model instruction, this court has held that the trial court should not use a non-model instruction unless there is a finding that the model instruction does not accurately reflect the law. See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). In support of her contention that the model instruction should include a “mere presence” component, Calloway cites several cases which have held that mere presence is not enough to establish that an individual was an accomplice. See Vickers v. State, 313 Ark 64, 852 S.W.2d 787 (1993); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988); Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983).

This court has twice specifically rejected the argument that AMCI 2d 401 should be altered to reflect the notion that mere presence is not enough to establish accomplice liability. See Williams, 329 Ark. at 21, 946 S.W.2d at 688; Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). Our reasoning for these holdings is sound. In order to prove that a person is an accomplice under AMCI 2d 401, one must prove that the defendant was engaged in activity which aided in the commission of the crime and, thus, was not merely present. If the State proves that a person was present when a crime was committed but does not further prove beyond a reasonable doubt that person in some way participated in the crime, the State has not met its burden. It would be redundant for the trial court to instruct the jury on what does not give rise to accomplice liability in addition to what does. Moore, 317 Ark. at 636, 882 S.W.2d at 671.

Calloway attempts to distinguish Webb v. State, supra, by contending that this court found that the facts in Webb did not support a “mere presence” instruction. However, this argument does not contend with the more recent decision in Williams v. State, supra, where this court specifically stated that Webb rejected the requirement of a “mere presence” jury instruction. We held in both Williams and Webb that AMCI 2d 401 accurately and completely reflects the law of accomplice liability. Thus, Calloway’s argument on this point has already been settled by prior case law and is meritless.

Calloway’s second point arises out of comments made by the prosecutor during closing argument. The prosecutor made the following statement:

And another thing about these oaths. I take an oath. He’s exactly right. I took an oath as a deputy prosecutor. So, when he stands up here and says that Curtis Cochran tailored his testimony to suit me, then he maligns me. Well, ladies and gentlemen, I took an oath. So, if you believe that what I did was told Curtis Cochran what to say —

Defense counsel objected to the prosecutor’s argument and moved for a mistrial. The trial court denied the motion but did admonish the jury that “counsel are not allowed to inject their own personalities in the trial,” and that the jury should not consider such comments or make them a part of their deliberations. Calloway now contends that the statement made by the prosecutor was so prejudicial that it could not be corrected by an admonition and that a declaration of a mistrial was warranted.

This court has held that a mistrial is such an extreme remedy that it should not be used unless there has been error “so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected.” Puckett v. State, 324 Ark. 81, 89, 918 S.W.2d 707, 711 (1996). A mistrial should only be declared when an admonition to the jury would be ineffective. Id. Moreover, the trial court is given broad discretion to control counsel in closing arguments, and this court will not disturb the trial court’s decision absent a manifest abuse of discretion. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). We said in Lee: “[RJemarks that require a reversal are rare and require an appeal to the jurors’ passions.” 326 Ark. at 532, 932 S.W.2d at 758.

In this case, the trial court made a specific finding that defense counsel had “invited” the prosecutor’s rebuttal by questioning the integrity of the prosecutor in closing argument. Defense counsel repeatedly made reference to the fact that Curtis Cochran had changed his story only after the prosecutor talked to him. The prosecutor’s rebuttal sought to correct any inference that she told Cochran to lie. This court has recognized that when one party uses improper closing remarks the other party may respond with what would ordinarily be improper remarks. Id; Larimore v. State, 317 Ark. 111, 977 S.W.2d 570 (1994); McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986). We have no doubt that the prosecutor should be allowed to counter any suggestion of suborning perjury.

Furthermore, the trial court immediately sustained defense counsel’s objection to the prosecutor’s injecting personalities into her argument and immediately admonished the jury to that effect, thereby curing any potential prejudice. Having observed the argument first hand, the trial court was in the best position to determine if there was prejudice, and we defer to its judgment. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). There was no abuse of discretion in this regard.

For her final point, Calloway contends that the trial court erred in not granting defense counsel’s request for surrebuttal argument to correct misstatements made by the prosecutor. At the end of the prosecutor’s rebuttal, the defense counsel moved the court to allow him a surrebuttal argument because the prosecutor had misrepresented Calloway’s testimony in her rebuttal argument. Specifically, defense counsel claimed that the prosecutor had argued that Calloway contended that the two other State witnesses, Jack Thomas and Kyle Jones, were lying. In fact, Calloway never specifically stated that they were lying, but her testimony did contradict those witnesses on several points. The trial court ruled in favor of the State and said: “Counsel if I allowed that [surrebuttal argument], I’m afraid there would never be an end to this trial.”

The trial court is given broad discretion to control counsel in closing arguments, and this court will not disturb the trial court’s decision absent a manifest abuse of discretion. Lee v. State, supra; Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). In this case, there was no abuse of discretion. For one thing, defense counsel could have objected to any misstatements made by the prosecutor in her rebuttal argument. For another, the prosecutor’s arguments were logical inferences based on the testimony of the witnesses. It is logical to conclude that if a defendant testifies in a manner that completely contradicts a witness’s testimony, there is an implication that the defendant is saying the witness is lying. This easily falls within the confines of permissible argument. There was no abuse of discretion in refusing to grant surrebuttal argument.

Affirmed.

       AMCI 2d 401 was given as modified at the request of defense counsel to include language from Ark. Code Ann. § 5-2-403(b) (Repl. 1993), relating to assistance in causing a particular result.

       The court is aware that defense counsel did object to alleged factual misstatements during the prosecutor’s initial closing argument, and the trial court raised the issue of whether that would be a comment on the evidence by the court.


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    Tommy CRAWFORD v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    97-241
    951 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Clark Law Firm, by: Jim Clark, for appellant.

      Office of Chief Counsel, by: Johnny E. Gross, for appellee.
   Robert L. Brown, Justice.

This case arises out of the court-ordered termination of the parental rights of appellant Tommy Crawford. The record contains almost three and a half years of matters before the chancery court, juvenile division, and other agencies following the original call to law enforcement officers caused by a domestic disturbance at Crawford’s home in January of 1993. At that time, Crawford was living with his girlfriend, Mary Cross, who was still married to Bobby Cross. Also living in the house were four minor children. Two of the children, Tequilla Cross and Melissa Cross, were the natural children of Mary Cross and Bobby Cross. The other two children, Justin Crawford (now age 9) and James Crawford (now age 7), were the biological children of Mary Cross and Crawford. The parental rights of Bobby Cross, Mary Cross, and Tommy Crawford were terminated with respect to all four children. This appeal, however, concerns only the termination of the parental rights of Tommy Crawford with respect to James and Justin Crawford. We affirm the order of termination.

On January 30, 1993, the Benton County Sheriffs Office responded to a report of domestic violence at the home of Crawford and Mary Cross. The subsequent investigation resulted in two proceedings. The first was a criminal proceeding which resulted in a plea of guilty by Crawford to Violation of a Minor in the First Degree, a class C felony. The victim of this offense was Mary Cross’s daughter, Tequilla Cross. Crawford was sentenced to ten years in prison with five years suspended.

The second proceeding was in chancery court, juvenile division, and concerned placement of the four children in the care of appellee Arkansas Department of Human Services (DHS) because of allegations of abuse and allegations that the children were dependent-neglected. On February 22, 1993, DHS filed a petition for emergency custody, following which the two daughters, Melissa and Tequilla Cross, were removed from the home of Mary Cross. The two boys, James and Justin, remained with their mother. At the adjudication hearing held on March 30, 1993, Tequilla Cross testified about the circumstances at the home before she was removed from the home and placed in foster care. She testified that Mary Cross and Crawford, as well as their friends, drank alcohol daily and regularly smoked marijuana, all of which took place in front of the children.

After the initial disturbance and allegations of sexual abuse on January 30, 1993, Crawford did not reside with the children or Mary Cross. On May 16, 1993, a restraining order was issued enjoining Crawford from having any contact with the children or with Mary Cross. In September of 1993, DHS established a case plan, with the stated goal being reunification of the family. An adjudication order was entered on November 23, 1993, wherein the two boys, James and Justin, were found to be dependent-neglected, following a stipulation by counsel to the same effect made on May 13, 1993.

Following a hearing on December 7, 1993, Crawford was allowed visitation with his sons for one hour a week under supervision of DHS. He was ordered to pay child support in the amount of $32.00 per week and to pay half of the boys’ medical bills. The chancery court later raised the amount of child support to $35.00 a week on August 11, 1994. Crawford participated sporadically in supervised visitation with his sons for almost a year while the boys were still living with Mary Cross. On April 1, 1994, Justin and James Crawford were ordered placed in foster care along with their half-sisters, Melissa and Tequila Cross.

According to DHS reports, Crawford stopped scheduling visits with his sons and had no contact with them from November of 1994 to April 28, 1995. In addition, he never paid the court-ordered child support. Crawford, in his own testimony, admitted that he was aware of the chancery court’s order to pay child support, but he did not pay it. He said that he bought his boys clothes instead. The DHS reports reflect that Crawford and Mary Cross failed to make sufficient efforts to improve their condition and to establish a home for the children.

Crawford began serving his prison term in May of 1995 for the sexual abuse of Tequilla. He was in prison for over a year before the final hearing on termination of his parental rights, which was held on July 11 and 12, 1996. During that time, he wrote a total of three letters to his children. He refused to attend counseling for sexual offenders while in prison and continued to deny molesting Tequilla in spite of his guilty plea. He claimed to have mistaken Tequilla for Mary Cross, while he was in a drunken state.

On August 16, 1996, an order terminating the parental rights of Mary Cross, Bobby Cross, and Tommy Crawford was issued by the chancery court. The court found that DHS had proven by clear and convincing evidence that the children had been residing outside the home for more than one year and that, despite meaningful efforts by DHS to rehabilitate the home and correct the conditions which caused removal, the conditions had not been remedied. The court further found that DHS had proven by clear and convincing evidence that Crawford had failed to provide significant material support to his sons or to maintain meaningful contact with them.

Crawford argues on appeal that there were insufficient efforts by DHS to rehabilitate him and that the evidence in this case was not clear and convincing. Our caselaw has established that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Parental rights, however, will not be enforced to the detriment or destruction of the health and well being of the child. Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986).

The relevant statute, Ark. Code Ann. § 9-27-341 (Supp. 1995), provides in part:

(b) . . . An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(1) That it is in the best interest of the juvenile;
(2) Of one or more of the following grounds:
(A) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and, despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent ....
(B) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the juvenile. To find willful failure to maintain meaningful contact, it must be shown that the parent was not prevented from visiting or having contact with the juvenile by the juvenile’s custodian or any other person, taking into consideration the distance of the juvenile’s placement from the parent’s home. Material support consists of either financial contributions or food, shelter, clothing, or other necessities where such contribution has been requested by the juvenile’s custodian or ordered by a court of competent jurisdiction.

Ark. Code Ann. § 9-27-341 (b)(2) (Supp. 1995).

As the statute states, the facts warranting termination of parental rights must be proved by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, this court will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Ark. R. Civ. P. 52(a); Anderson v. Douglas, 310 Ark. 633, 637, 839 S.W.2d. 196, 198 (1992). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Anderson v. Douglas, supra; Cobbins v. State, 306 Ark. 447, 816 S.W.2d 161 (1991). Furthermore, this court will defer to the trial court’s evaluation of the credibility of the witnesses. Ark. R. Civ. P. 52(a); Anderson v. Douglas, supra.

We first note that § 9-27-341 (b)(2)(A) does not speak in terms of efforts by DHS to rehabilitate individuals like Crawford but rather the home as a whole. Regardless of that distinction, there is a second ground for termination of parental rights under § 9-27-341 (b) (2) (B). Rights may be terminated if the juvenile has lived outside the home of the parent for twelve months and the parent has willfully failed to provide significant material support to his children as ordered by the chancery court and to have meaningful contact with them. It is on this finding by the chancery court that we base our affirmance.

In November of 1993, Crawford was given the opportunity to have supervised visitation with his two sons on a weekly basis. He visited with them for a time, but eventually quit contacting them altogether in November of 1994. This lack of contact continued at least until April 28, 1995 —■ the date of a DHS report on the matter. Crawford admitted lack of contact with his sons, and his explanation was that he wanted the children to get used to his not being around because he was going to prison. We give this reasoning little credence. In addition, Crawford was ordered to pay child support in the amount of $32.00 a week and then $35.00 a week. He failed to make any child-support payments. We agree with DHS that evidence abounded that Crawford had not paid support or had meaningful contact with his sons. Nor was the prognosis very good that this situation would change due to Crawford’s incarceration.

Moreover, at the time of the final Review Hearing, Crawford was in prison for his crime against Tequilla Cross. Although imprisonment imposes an unusual impediment to a normal parental relationship, we have held that it is not conclusive on the termination issue. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984); Zgleszewski v. Zgleszewski & Horne, 260 Ark. 629, 542 S.W.2d 765 (1976). In the instant case, nevertheless, imprisonment undoubtedly had a bearing on the trial court’s decision for two reasons: the nature of the crime itself, which was violation of a minor; and the fact that Crawford was not going to be available to care for his sons during his term of imprisonment, which could be as long as four additional years. There is also the factor that throughout their time in foster care, the sons appear to have been improving in every respect. Their grades at school improved. The case worker noted that they spoke less violently and acted more behaved. Tequilla testified that she hoped that they all could return home one day, but only if Crawford would stay away. She said that she thought the boys were in danger when he was around. Later, she wrote a letter to the chancery court and stated that she believed it would be best for everyone if all of the children remained in foster care. In closing arguments, the guardian ad litem for the boys stated that she would not make a recommendation about terminating parental rights, but she wanted to relay what she observed from the children. She said that the two boys were calling their foster parents “mom” and “dad” and they liked where they were. In recounting these circumstances, we are mindful of the policy expressed in § 9-27-341 (a) relating to termination of parental rights:

The intent of this section is to provide permanency in a juvenile’s Hfe in all instances where return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that return to the family home cannot be accomplished in a reasonable period of time.

We conclude that the chancery court appropriately found clear and convincing evidence that the two sons lived apart from Crawford for twelve months and that he failed to provide monetary support for them or to make sufficient contact with them. We, therefore, affirm the termination of parental rights.

Affirmed.


text:
    Billy Edward WELCH v. STATE of Arkansas
    CR 97-378
    955 S.W.2d 181
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Norman Mark Klappenbach, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Billy Edward Welch was convicted of possession of a controlled substance with intent to deliver, felon in possession of a firearm, simultaneous possession of a controlled substance and a firearm, and possession of drug paraphernalia. He was sentenced as a habitual offender to two terms of life in prison for the possession-with-intent charge and the simultaneous possession charge, six years for being a felon in possession of a firearm, and ten years for the drug paraphernalia. All of Welch’s convictions arise out of a traffic stop and the subsequent impoundment and search of his vehicle. On appeal, he raises the issues of sufficiency of the evidence, speedy trial, and suppression of the evidence seized from his vehicle. We affirm.

On the evening ofjuly 28, 1995, the Dallas County Sheriffs Department conducted a safety inspection at the intersection of State Highways 8 and 9 in Dallas County. Deputy sheriffs stopped all vehicles and checked the drivers’ licenses and other documentation relating to ownership of the vehicle and insurance. Welch came upon the deputies while driving his Chevrolet El Camino with a friend. He was approached by Deputy Bill Still, an Auxiliary Deputy Sheriff for Dallas County.

Deputy Still later testified that Welch was unable to provide a legible driver’s license, proof of insurance, or proof of ownership of the vehicle. Deputy Still reported this situation to his supervisor on the scene, Deputy Sheriff Kenneth Seale. The deputies then checked Welch’s license plate and found that it was registered to another vehicle. Both deputies also testified at the suppression hearing that the initial computer report on Welch indicated that there was a warrant out for his arrest for failure to appear in court in a different county.

Welch was asked if he had any weapons, drugs, or alcohol in his vehicle. According to the deputies, he initially denied having any drugs or weapons. Later, however, he surrendered a nine millimeter handgun from behind the seat of his El Camino. The deputies then asked if they could search the vehicle, whereupon Welch became angry and refused to allow them to do a search and insisted that he be allowed to go home. Welch was then arrested for the traffic violations, and his car was impounded.

Before impounding the vehicle, the deputies took an inventory of its contents. At trial, the law enforcement officers, including Auxiliary Deputy Still, Deputy Seale, and Arkansas Game and Fish Wildlife Officer Mike Knoedl, testified about their involvement in the search. Officer Knoedl testified that he occasionally assisted the Dallas County Sheriffs Department in investigations. On this occasion, Deputy Seale asked Officer Knoedl to assist in the search of Welch’s vehicle because the El Camino was extremely cluttered. Deputies Still and Seale testified that other law enforcement officers brought them items from the car, and they recorded on a log sheet everything that was found in the vehicle and where it was found. Both of the deputies testified that the purpose of the search was to keep Welch from later claiming that something was missing from his vehicle. Deputy Still also stated that he was searching the vehicle to determine if there were more guns.

While conducting the inventory search, the law enforcement officers found several syringes, a bag containing more than thirty-three grams of methamphetamine, a set of scales, and several spoons. Most of these items were found in an ammunition box that was located in the bed of the El Camino. The officers also found Welch’s proof of insurance and proof of ownership of the vehicle in the ammunition box with the drugs. Prior to trial, Welch moved to have all of the items found in the search suppressed. The motion was denied, and Welch was tried by jury, convicted, and sentenced as set out above.

I. Sufficiency of the Evidence

We first consider Welch’s argument regarding sufficiency of the evidence because the double jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficiency of the evidence. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996).

After the State rested its case, the following exchange took place:

COUNSEL FOR DEFENSE: Your Honor, the State has rested and at this point the defense would move for a directed verdict.
THE COURT: Is that all you’ve got to say?
COUNSEL FOR DEFENSE: Yes, sir, that’s all I’m saying. (The court then gave the State a chance to comment after which the following took place.)
THE COURT: The motion for dire&ted verdict is denied.
COUNSEL FOR DEFENSE: Your Honor, then the defense would now rest and we renew our motion for a directed verdict and I would like to say that the defense is resting without calling the defendant, or a witness, after discussing that with my client and he is in agreement, is that right, Mr. Welch?

The court then denied the renewed motion. At no time did defense counsel state any grounds for his motion, which violates Rule 33.1 of the Arkansas Rules of Criminal Procedure. See also Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). Thus, the trial judge had no opportunity to rule on specific grounds with respect to any of the charges. We hold that Welch is procedurally barred from raising this issue on appeal.

II. Suppression of the Evidence

Welch’s next point concerns the items seized by the Dallas County Sheriffs Department while conducting a warrant-less search prior to impoundment of his vehicle. When reviewing the denial of a suppression motion, this court makes an independent examination of the evidence based on the totality of the circumstances, and we will not reverse the trial judge’s decision unless it is clearly against the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), reh’g denied, 327 Ark. 576-A, 940 S.W.2d 440 (1997).

We initially examine the general law relating to inventory searches. Inventory or administrative searches are excepted from the requirement of probable cause and a search warrant. Florida v. Wells, 495, U.S. 1 (1990). The purpose of an inventory search is to protect the property, the police, and the public. Id. The rationale is that police officers can better account for the property if they have an accurate record of what is contained in a vehicle when it is impounded. Moreover, the police and the public are protected by ensuring that the vehicle does not contain explosives or other harmful items. As part of an inventory search, the police are permitted not only to search the vehicle, but also the containers within the vehicle. Id. Colorado v. Bertine, 479 U.S. 367 (1987); Snell v. State, 290 Ark. 503, 721 S.W.2d. 628 (1986), cert. denied, 484 U.S. 872 (1987).

In order for a search of a properly detained vehicle to fall within the inventory search exception to the search warrant requirement, there must be standard operating procedures established by the law enforcement agency conducting the search. Florida v. Wells, supra; Colorado v. Bertine, supra; Snell v. State, supra. The procedures must be followed and the inventory search must not be conducted solely for investigative purposes. Id. There is no requirement that the procedures for the inventory search be in writing. United States v. Lowe, 9 F.3d 43 (8th Cir. 1993). See also United States v. Skillern, 947 F.2d 1268 (5th Cir. 1991), cert. denied, 503 U.S. 949 (1992); Snell v. State, supra.

Absent a showing that the true intent of the police officers was to conduct an evidentiary search, the testimony of police officers that they always take inventory of impounded vehicles and that they always search containers is sufficient. Id. The fact that police officers have some idea or expectation of what they might find does not invalidate the purpose of the search. Indeed, the police are not required to weigh the individual’s privacy interest against the probability of finding hazardous materials before opening a container in the vehicle. Colorado v. Bertine, 479 U.S. at 374.

a. Standard Procedures

Turning to the case at hand, Welch argues that the Dallas County Sheriffs Department did not follow normal procedures for an inventory search because the Department did not have written procedures and the deputy sheriffs could not be specific as to what the procedures were. In Snell v. State, supra, this court relied on the testimony of law enforcement officers to prove the inventory search, which included opening a container, was standard procedure. Accordingly, we turn to the testimony of the law enforcement officers to determine whether standard operating procedures were in place. Deputy Sheriff Seale testified that he always searches vehicles that are impounded:

Q. — as far as the Dallas County Sheriffs Department is concerned what does inventory mean?
A. Well, it’s part of our policy, as far as I know, that in case, you know, if we impound a vehicle we got everything listed and documented then the subject can’t come back later on and say that such-and-such is missing —
Q. Okay. Do you — Mr. Seale, have you participated in other inventory searches?
A. I have.
Q. Yes, sir. Is this the — the way y’all did this any different than your normal procedure?
A. No.
Q. Now, what were you looking for when you were searching the vehicle?
A. Weren’t looking for any certain thing, we was just documenting each and every item that was in the vehicle before we impounded it.

In addition, Game and Fish Officer Knoedl testified at trial:

Q. And is that your standard procedure to open a box like that?
A. Yes, sir.
Q. Who told you to do that, Mike?
A. Well, basically I work under the same procedure that the Game and Fish follows, which we have a written policy that says, “All containers locked, or unlocked, will be searched,” you know, “or inventoried when a vehicle is stored.”
Q. Okay. Does the Dallas County Sheriff’s Office have a written policy like that?
A. Sir, I couldn’t say for sure. I know that there is supposed to be a verbal policy. I know from being here seven years and working with the Dallas County Sheriff s Department, that that’s normal operating procedure that is done.

The trial court cited the Eighth Circuit’s decision in United States v. Lowe, supra, for the proposition that standard procedures do not have to be in writing and made the following findings in its order:

The Courts have ruled that an inventory search must be based upon standardized procedures to prevent rummaging. The officers testified at the hearing that upon impounding the vehicle it would be taken to the Sheriff s Office so that a written inventory of the contents of the vehicle could be made in accordance with their policy. They acknowledged that they had not seen a written policy but do this all the time.
The Courts have not required that for inventory searches to be valid they must be based on written standardized procedures or written standard police policy. These procedures may be written, but established unwritten procedures are also sufficient. The officers in this case were following what they had been trained to do when the vehicle was impounded after a valid arrest, perform an inventory for the protection of the owner, the police and the public.

These findings are a proper statement of the law and the facts. While we have no doubt that written procedures are preferable to oral procedures, neither our caselaw nor federal caselaw requires that the standard policy be in writing for the inventory search to pass constitutional muster. The essential points appear to be that the practice be uniform and that no discretion be left to the police officers to decide the boundaries of the inventory search. See Colorado v. Bertine, supra.

Welch makes a specific argument that doing an inventory of the ammunition box was clearly violative of the Fourth Amendment. We disagree. Though Game and Fish Officer Mike Knoedl was not a member of the Sheriffs Department, he testified that he knew the department’s procedures on opening containers, having worked in conjunction with the Department for seven years. Deputy Kenneth Seale further testified that the inventory search, which would include search of the ammunition box, was according to normal procedure. Thus, there was evidence of a standard policy, unlike the case of Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992), where the Court of Appeals concluded there was no evidence of a policy regarding closed containers.

Certainly, the circumstances surrounding the search were suspicious with no proof of ownership of the vehicle, a warrant outstanding for Welch’s arrest, and a weapon in the vehicle. We are further persuaded by the Supreme Court’s reasoning in Colorado v. Bertine, supra:

Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit.

Bertine, 479 U.S. at 375, quoting Illinois v. Lafayette, 462 U.S. 640, 648 (1983). There was no abuse of discretion by the trial court in refusing to suppress this evidence.

b. Pretextual Search

Other than the testimony of Deputy Still that he was also looking for guns, there was no evidence that the search was anything other than an inventory search. Deputy Still and Deputy Seale both testified that they were doing an inventory search. The United States Supreme Court has observed that the fact that a police officer is also aware that he might come upon pertinent evidence in the course of an inventory search is not fatal to that search. Colorado v. Bertine, supra.

To suppress an inventory search, a defendant must show that the police officers were conducting the inventory search in bad faith for the sole purpose of collecting evidence. Id. See also South Dakota v. Opperman, 428 U.S. 364 (1976) (plurality opinion). Here, the trial court did not find that there was an ulterior motive on the part of the Dallas County Sheriffs Department. We decline to superimpose our view of the testimony over that of the trial court’s when the law enforcement officers are following standard procedure and in the absence of proof that the sole motivation for the search was to collect evidence. See Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990).

III. Speedy Trial

Welch next claims that the trial court erred because it did not dismiss the charges against him after the time for speedy trial had expired. The State answers that Welch waived his right to a speedy trial because he failed to raise the issue in the trial court.

Welch was arrested on July 28, 1995. The defense requested and was granted a motion for a continuance on August 19, 1996. The attorney requesting the continuance explained that he would not be ready for trial on that day because Welch failed to attend any of their scheduled meetings and he had not met with the defendant until August 13, 1996. The continuance was granted and time was charged to the defendant. The defense later made a motion to suppress and a hearing was held on November 25, 1996. At the end of the hearing, the court, the prosecutor, and defense counsel attempted to set a trial date, and the foEowing exchange took place:

THE COURT: Is there reaEy a speedy trial problem? If I remember correctly I think Mr. Welch walked out of this courtroom and left and we were trying to resolve this matter and he was gone a good long time, was he not?
PROSECUTOR: Yes, sir. I would ask, so as to avoid any further problem, I’d ask that we go ahead and try this case this year, depending, of course, on what the Court rules. If the Court rules —
THE COURT: WeH, I’m not going to do anything untñ I rule on this [suppression] motion —
PROSECUTOR: Yes, sir.
THE COURT: — and if you get me that in a week then I will set it and right now I told you I would set it preferably on the 12, that day’s open —
PROSECUTOR: Yes, sir.
THE COURT: — do either of you have any problem with the 12 th?
DEFENSE COUNSEL: No, sir, that’d just give me time to drive back from St. Louis and rest a day before I try a jury trial.

This is the only time that speedy trial was discussed at the trial court level before the current appeal.

In criminal cases, even constitutional issues must be presented to the trial court to preserve them for appeal. Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992). A defendant’s faEure to move for a dismissal of charges for a lack of speedy trial constitutes a waiver of his rights under the rules. Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987). The defense had plenty of opportunity to object to the trial date, but instead consented to it even after the trial court referred to a potential speedy-trial problem. The trial court is not required to make the motion for him. This issue has no merit.

IV. Cumulative Error

For his final point, Welch contends that all of the rulings against him, when considered together, constitute reversible error. In response, the State correctly points out that the cumulative-error argument was not raised to the trial court. This court has specifically held that not only must each of the negative rulings be objected to individually, a defendant must also raise the cumulative-error objection to the trial court and obtain a ruling in order to argue the point on appeal. Witherspoon v. State, 319 Ark. 313, 891 S.W.2d. 371 (1995). Because Welch did not raise the cumulative-error objection in the trial court, he is barred from raising it on appeal. Id.

The individual objections by Welch and the record on appeal have been reviewed for prejudicial error in accordance with Supreme Court. Rule 4-3 (h), and none has been found.

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Clarence Edward MIXON v. STATE of Arkansas
    CR 97-452
    954 S.W.2d 214
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      John F. Stroud III, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Clarence Edward Mixon, was convicted by a jury of residential burglary, aggravated robbery, theft of property, and two counts of rape. As a habitual offender, Mixon was sentenced to consecutive terms of two life sentences plus 115 years’ imprisonment. On appeal, Mixon argues that the trial court erred in allowing testimony regarding two footprints that were found near the crime scene, and in ordering his sentences to run consecutively. Finding no merit to either argument, we affirm.

On October 9, 1995, at approximately 3:30 a.m., a man broke into the victim’s home, raped her twice at knife point, and stole her jewelry. The victim was unable to see her attacker because a pillow case was placed over her head. She, however, was able to feel a scar on the perpetrator’s forearm.

The next morning, around 9:00 a.m., the police discovered two footprints outside of the victim’s home. The first footprint was located on a bench underneath a window to the victim’s house. The second footprint was found on the ground approximately sixty-five to seventy feet from the victim’s home at the intersection of Tenth and County Street. Officer Humphries testified that the patterns of the two footprints were similar, and the letters “L.A.” were clearly visible in the print found at the street corner. Detective Tate testified that there was “no doubt” in her mind that an L.A. Gear tennis shoe made both footprints. Detective Tate also testified that she observed similar footprints leading to and away from the victim’s home. The victim testified that she did not own any L.A. Gear tennis shoes, and no such footwear was found in her home.

Several days later, the police located the victim’s stolen jewelry in several pawn shops, and the pawn tickets listed the depositor as the defendant, Clarence Mixon. When Mixon was arrested, he was wearing a pair of L.A. Gear tennis shoes with markings similar to those observed in the two footprints found at the crime scene. At the time of his arrest, the police also observed a scar on Mixon’s forearm similar to that described by the victim. Furthermore, DNA testing indicated a 99.99% probability that Mixon raped the victim. Finally, the victim identified Mixon’s voice as similar to the voice she heard on the night of the rape. Based on this evidence, the jury found Mixon guilty of residential burglary, aggravated robbery, theft of property, and two counts of rape.

I. Footprints

For his first argument on appeal, Mixon asserts that the trial court erred when it allowed the police officers to testify about the footprints that were found at the crime scene. Mixon argues that the trial court erred when it declined to exclude the evidence under Ark. R. Evid. 403, which states in relevant part that:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ...

We have repeatedly held that the balancing mandated by Rule 403 is a matter left to a trial court’s sound discretion, and thus, we will not reverse the court’s ruling absent a showing of manifest abuse. Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996); Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996).

Mixon argues that the testimony was more prejudicial than probative because L.A. Gear is a popular brand of tennis shoe, and the prints were found in a heavily traveled area several hours after the assault occurred. Officer Humphries, however, testified that there was not much traffic in the area at six o’clock in the morning, and Detective Tate testified that she saw similar footprints leading to and away from the victim’s home. Moreover, Detective Tate testified that there was “no doubt” in her mind that both footprints were made by L.A. Gear shoes. Finally, the footprints had similar patterns to the soles of the shoes Mixon was wearing at the time of his arrest. Based on these facts, we cannot say that the trial court abused its discretion when it declined to exclude the testimony under Rule 403.

II. Consecutive Sentences

At the conclusion of the trial, the jury sentenced Mixon to forty years for residential burglary, forty years for theft of property, seventy-five years for aggravated robbery, and two life sentences for the two counts of rape. The trial judge ordered all sentences, except for the sentence of forty years' for theft of property, to be served consecutively. On appeal, Mixon argues that the trial court erred in running the sentences consecutively because the court faded to use its discretion pursuant to Ark. Code Ann. § 5-4-403 (Repl. 1993).

We, however, cannot address the merits of this argument because Mixon failed to properly preserve the issue for appellate review. On several occasions, we have refused to address an appellant’s challenge to the trial court’s decision to run the sentences consecutively when the appellant failed to make an objection below. See Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997); Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). Because Mixon made no objection after the trial court announced its ruling that four of his five sentences would run consecutively, we must affirm the trial court’s ruling.

III. Arkansas Supreme Court Rule 4-3(h)

In accordance with Ark. S. Ct. R. 4-3(h), the record has been reviewed for rulings decided adversely to Mixon but not argued on appeal, and no reversible errors were found.