author: Per Curiam. Jim Hannah, Justice, Tom Glaze, Justice, Donald L. Corbin, Justice, Annabelle Clinton Imber, Justice,

text:
    REPUBLICAN PARTY of ARKANSAS and Sally Stevens, A Member of the Pulaski County Election Commission v. The Honorable Collins KILGORE, Pulaski County Circuit Court, Thirteenth Division; Gus Wingfield; Democratic Party of Arkansas; Pulaski Circuit/County Clerk, Carolyn Staley; and Pulaski County Board of Election Commissioners
    02-1181
    98 S.W.3d 798
    Supreme Court of Arkansas
    Opinion delivered November 7, 2002

      Andrew J. Russell III, and Quattlebaum, Grooms, Tull & Burrow PLLC, by: Leon Holmes, for petitioners.

      Robin J. Carroll, and Pulaski County Attorney’s Office, by: Karla M. Burnett, for respondents.
   Per Curiam.

Petitioners, the Republican Party of Arkansas and Sally Stevens, a member of the Pulaski County Election Commission, have filed an Emergency Petition for Writ of Certiorari in this court on November 6, 2002. The stated purpose of the petition for certiorari is to void the Emergency Order to Extend Voting Hours filed by Circuit Judge Collins Kilgore at 6:45 p.m. on November 5, 2002.

The Emergency Order reads as follows:

Upon consideration of the petition for an emergency order to extend voting hours and in light of exigent circumstances involved that threaten the effective disenfranchisement of voters, it is hereby ORDERED that the Pulaski County Board of Election Commissioners shall extend voting hours until 9:00 p.m. in all locations in Pulaski County, Arkansas. Any voter still in line at 9:00 p.m. shall be permitted to vote. Ballots shall be provided immediately. All polling places are to be informed of this Order immediately, and the news media are requested to publicize this extension.

That order granted the petition of plaintiffs, Gus Wingfield and Democratic Party of Arkansas, which alleged that:

• Pulaski County Circuit Clerk Carolyn Staley neglected to ensure that necessary voters lists had been distributed to the precincts.
• Sufficient voting booths, voting rolls, and other supplies and equipment were not provided for the polling places, including ballots that had been depleted at three specific polling places.
• State law requires the Board of Election Commissioners to provide sufficient voting booths, voting machines, supplies, and equipment.
• Numerous Pulaski County voters were unable to exercise their constitutional right to vote.
• Immediate action was necessary to protect the right to vote for all properly registered voters, and failure to take action would result in irreparable harm.

The plaintiffs prayed for an immediate hearing, extension of voting hours to 10:00 p.m., delivery of necessary ballots, and all other just and proper relief. As already noted, the Emergency Order entered by the judge extended the voting hours to 9:00 p.m.

The record filed in this court reveals that no testimony was taken and no evidence was presented in support of the allegations made in this petition. No parties other than Gus Wingfield and the Democratic Party of Arkansas in the form of counsel appeared before Judge Kilgore. No other parties were notified of that hearing.

The Emergency Petition for Writ of Certiorari memorializes the arguments made to six members of this court by conference call at approximately 8:00 p.m. on November 5, 2002. Justice Tom Glaze of this court did not participate. The conference call took place at the request of Leon Holmes, counsel for the Republican Party. Participating in the conference call with Mr. Holmes and the six justices of this court was Robin Carroll, counsel for Gus Wingfield and the Democratic Party of Arkansas. Both counsel made their views known to the court.

Mr. Holmes, as counsel for the Republican Party of Arkansas, argued that Judge Kilgore had no authority to extend voting hours and that to do so was an abuse of discretion and violated the Equal Protection Clause of the United States Constitution. He cited the court to a Missouri Court of Appeals’ case and Bush v. Gore, 531 U.S. 98 (2000), in support of his argument. Mr. Carroll argued that registered voters had a constitutional right to vote and they were being deprived of this right. Members of the court asked questions to counsel for both parties.

Counsel for the parties then allowed the six justices to conference the case in private. The justices discussed the case by conference call, and a vote was taken. The six justices voted to void Judge Kilgore’s Emergency Order. Counsel for the political parties were advised of this decision at approximately 9:00 p.m. Mr. Holmes was advised to file his petition for relief in the morning.

This court has jurisdiction in matters where a trial judge has plainly, manifestly, and clearly committed a gross abuse of discretion and acted in excess of his authority. See Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000); Arkansas Public Defender Comm’n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000).

This court is cognizant of the fact that it cannot act officially until a pleading is filed and a record is lodged with the clerk of this court. At 9:00 p.m. on November 5, 2002, neither had been done. This court is further cognizant of our Arkansas Rule of Civil Procedure 58 which reads, in pertinent part:

Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Administrative Order No. 2. Entry of judgment or decree shall not be delayed for the taxing of costs.

Ark. R. Civ. P. 58. See also Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989). The same policy, as set forth in Rule 58, holds true for orders of this court for extraordinary circumstances such as confronted us in the case at hand.

During the morning of November 6, 2002, the Emergency Petition for Writ of Certiorari and a partial record were filed by petitioners. Responses from the respondents were requested by close of business on this same day. As noted above, the Emergency Petition memorializes the arguments made to six members of this court on the evening of November 5 by counsel for the Republican Party.

As requested by this court, both the Pulaski County respondents and Gus Wingfield and the Democratic Party filed responses to the Emergency Petition on the afternoon of November 6, 2002. The Pulaski County respondents, Pulaski County Circuit/ County Clerk Carolyn Staley, Pulaski County Election Commissioner Charles King, and Pulaski County Election Commissioner Elizabeth Smith, stated in their response that on November 5, 2002, at 7:21 p.m., a copy of the Emergency Order extending the voting hours was received. Election Commission staff attempted to contact all 124 polling precincts, but were unable to do so. At 9:20 p.m., the Commission received notification that this court had voided the Emergency Order. The Commission then set aside all ballots that could be identified as being cast by voters arriving after the 7:30 p.m. statutory closing time. Those ballots that could not be distinguished as “late” were counted in the ordinary course of business. The Pulaski County respondents request that this court provide clarification as to the action to be taken with the ballots set aside.

Gus Wingfield and the Democratic Party respond that this court is without jurisdiction to hear this petition in that the petitioners have failed to file a notice of appeal. Assuming jurisdiction, they assert that their ex-parte Emergency Petition was permissible without notice to the petitioners because irreparable harm might have resulted due to voters being denied the ability to vote. They further argue that the circuit court had the authority to fashion equitable relief to prevent the disenfranchisement of thousands of Pulaski County voters and that no other evidence is before this court that voters in other counties were disenfranchised.

Our election law is clear that the polls open at 7:30 a.m. on the day of the election and close at 7:30 p.m. See Ark. Code Ann. § 7-5-304 (Repl. 2000). Persons who have presented themselves for voting and who are in line at the polling place to do so when the polls close are permitted to vote. See Ark. Code Ann. § 7-5-314(c) (Repl. 2000). The legislative branch of our state government has spoken on this issue, and there is no provision in our Election Code authorizing an extension of voting times by the judiciary. No argument was made that these statutes are unconstitutional, and Judge Kilgore made no finding to that effect. The Missouri Court of Appeals has held to the same effect, when reviewing a comparable statute and factual situation in that state, and noted the lack of jurisdiction in the trial court to extend the hours of voting fixed by law. See State ex rel. Bush-Cheney 2000 v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000).

In sum, the oral decision made the night of November 5, 2002, that Judge Kilgore’s order was void is now final as of the filing of this per curiam order today with the Supreme Court Clerk, following the filing of the Emergency Petition, the record, and the responses of respondents. Accordingly, we hold that Judge Kilgore clearly abused his discretion and exceeded his authority in extending the voting hours to 9:00 p.m. in contravention of state law. There is no need for this court to address the Equal Protection argument. Judge Kilgore’s order is void. The petition for writ of certiorari is granted.

Hannah, J., concurs.

Glaze, Corbin, and Imber, JJ., dissent.

Jim Hannah, Justice,

concurring. I concur in the conclusion that our law is clear that there is no provision in our election code for the judiciary to extend the time the polls are open. On this basis, Judge Kilgore’s order is void. Therefore, the writ of certiorari is properly granted.

However, when this matter was taken up on November 5, 2002, I had and expressed concerns that this matter should be heard post-election. Nonetheless, this matter was presented as an emergency petition and has been decided. I write separately to express my concern about the precedent this case may set.

Nothing in this decision declares any votes illegal. However, the issue in this case was whether votes were being cast that were unlawful. By the time this court reached a decision, it was too late to get word to the polls before they closed under Judge Kilgore’s order. Therefore, this case might have been heard after the election.

I also write to express my concern that the dissenting opinions appear to argue that without the lodging of a transcript and the filing of the proper pleading in this court during business hours, this court is without jurisdiction to act.

Amendment 80 of the Arkansas Constitution provides in part:

§ 2. Supreme Court.
* * *
(D) The Supreme Court shall have:
(1) Statewide appellate jurisdiction;
(5) Only such other original jurisdiction as provided by this Constitution.
(E) The Supreme Court shall have power to issue and determine any and all writs necessary in aid of its jurisdiction and to delegate to its several justices the power to issue such writs.
§ 3. Rules of pleading, practice and procedure.
The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.
§ 4. Superintending control.
The Supreme Court shall exercise general superintending control over all courts of the state. . . .

Ark. Const, amend. 80, §§ 2-4.

The dissents argue that we, by rule, have limited our jurisdiction to such matters as may be filed during business hours. In Ex Parte Dame, 162 Ark. 382, 385, 259 S.W. 754 (1923), this court stated, “The jurisdiction of each of the courts in our system is a matter of constitutional control, as each derives its several powers from the Constitution, or at least, is controlled by constitutional limitations.” While the rules cited by the dissents clearly provide procedure that those seeking redress before this court are expected and required to follow, I think it is a dangerous thing to assert that this court is without jurisdiction. If the unusual case requires consideration in the night to avoid irreparable injury or wrong that will be inflicted before the next business day opens, this court should hear the matter. The case before us may not have presented such an impending injury or wrong, but a future case may. As the dissents pointed out, this is a deliberative body and the matter should have been considered as an election contest. It is not difficult to envision events that might require hearing a matter after it is too late to file or lodge anything with this court. A case in which a person is about to be executed might well present such a case. Other similar cases could be easily envisioned.

The trial judge was presented with an emergency situation where people were trying to vote, but were unable because of a lack of ballots. The trial judge acted as he should have in trying to fashion a remedy on very short notice. The problem is the trial judge was without jurisdiction to extend the closing time of the polls. Ark. Code Ann. § 7-5-314(a) (Repl. 2000). Clearly the polls could have remained open until those present to vote at 7:30 p.m. cast ballots, even if they had to wait for additional ballots to be delivered to the polls. See Ark. Code Ann. § 7-5-314(c) (Repl. 2000).

Tom Glaze, Justice,

dissenting. In this case, a Pulaski County Circuit Court signed an emergency order extending voting hours to 9:00 p.m. on the night of the November 5, 2002, General Election. No petition for this relief had been filed with the Pulaski County Clerk, which is required to commence an action as mandated by Ark. R. Civ. P. 3. Moreover, no notice was given to all necessary parties who had an interest in this action. The circuit court’s order can be appealed or reviewed by this court only after the judge had his order filed and entered with the Pulaski County Clerk’s office. See Ark. R. Civ. P. 58 and Ark. R. App. P. — Civ. 4, which provide that an appeal filed prior to the entry of a final judgment or order is filed with the clerk of the trial court that tried the claim; see also Administrative Order No. 2, which reads that, for appeal purposes, a court’s order is effective only when the order is filed with the clerk’s office.

None of these rules were complied with. Instead, the Republican Party of Arkansas petitioned this appellate court, seeking to have us void the trial court’s order extending the hours of the election. The Republican Party, without any record or petition filed with the supreme court clerk, asked this court for an oral argument to present why the trial judge was wrong. Six members of this court gave the Republican Party and the Democratic Party of Arkansas an audience at about 9:00 p.m., November 5, so that they could argue the merits of the validity of the trial court’s order. The Pulaski County Board of Election Commissioners, the Pulaski County Clerk, and the voters were not represented when this court allowed the Republican and Democratic parties the opportunity to present oral argument via a telephone conference call. Neither party filed a written order, notice of appeal, or record for this court to review. In short, nothing was filed with this court in order for it to review the trial court’s unfiled order now on appeal. See Ark. R. App. P. — Civ. Rules 3 and 4. This court simply had no jurisdiction of the appeal of the trial court’s order. See also Ark. Sup. Ct. R. 6-1, regarding special proceedings, which provides that petitions for writs of prohibition, certiorari, or mandamus give this court jurisdiction when pleadings with certified exhibits from the trial court are filed with this court’s clerk. Nevertheless, the majority court proceeded to review and hear arguments on the trial court’s order, and then decided the trial court erred, thus voiding the lower court’s order. In doing so, this court violated every relevant appellate rule it has in order to render its oral decision.

Nothing was ever filed on November 5 to allow the court jurisdiction to review this matter. Never in this court’s history since 1836 has this court heard and decided an appeal or petition for a writ without the parties having filed a notice of appeal, record, and briefs so the court could deliberate properly to consider both the merits of the lower court’s decision and its authority to have decided the case in controversy.

Quite candidly, it appears the lower court, the parties, and this court got caught up in emotions in trying to obtain some type relief in an election which exhibited problems and allegations of irregularities. However, this court is a deliberative institution designed to bring issues into focus and render thoughtful decisions that bring such issues to a reasoned conclusion. In the instant case, this court clearly should have refused to review the validity of the trial court’s order because this court had no jurisdiction to do so. Of course, the lower court’s order would have allowed voters to cast ballots after the statutorily required time at 7:30 p.m. However, if the votes cast after the 7:30 p.m. deadline were found to be illegal, those votes could subsequently be contested, purged, or not counted. See chapter 5, subchapter 8, of Title 7 of the Arkansas Code, setting out the procedures for election contests. On the other hand, since this court overturned the trial court’s order, those voters who appeared at 7:30 p.m. or afterwards are unidentifiable, as well as disfranchised.

I would be remiss if I did not point to our recent ballot tide case of Ward v. Priest, 350 Ark. 462, 88 S.W.3d 416 (2002), where this court said the following:

This case is like McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994), in which we denied a motion for expedited review where the motion and brief were presented to this court just five days prior to the election. We stated that such time limitations would not only be unfair to the appellee, it would also not give this court the time needed for deliberation of the issue or issues to be presented. Id.; see also Stilley v. Young, 342 Ark. 378, 28 S.W.3d 858 (2000); Mertz v. States, 318 Ark. 239, 884 S.W.2d 264 (1994).

While I remain confident that this court’s members meant well when handing down its oral decision in this case, the majority court totally ignored our rules and cases that are clearly intended to permit expedited appeals and extraordinary proceedings in a manner that would give us the time, records, and briefs to render a well-reasoned opinion. This case sets a dangerous precedent, and our court should confess it made a mistake and rectify it immediately.

Because this court did not have jurisdiction to issue its November 5, 2002, oral order voiding the trial court’s order, any further petitions and arguments filed to “memorialize” the November 5 proceeding before this court should be dismissed. This entire matter is one that must first be decided by a trial court. There, all factual allegations and legal arguments can be tried, and, if any party is dissatisfied by the trial court’s rulings, a proper and timely appeal can be had. Requesting a writ of certiorari before this court after the election is over is not the correct remedy. Again, an election-contest proceeding is the vehicle to raise the election issues, and a writ of certiorari in this court is not proper.

Donald L. Corbin, Justice,

dissenting. I completely ce, wholeheartedly agree with the dissent filed by Justice Glaze, the sole member of this court who did not act upon the oral motions made by the Democratic and Republican parties in this case. I write separately to state that although I initially questioned the way in which this matter was being allowed to proceed, contrary to our well-established rules, I ultimately went along with the majority and cast my vote based on the oral motions of the parties, despite the fact that I had no information or applicable law before me.

After considerable reflection on this matter, I believe that I have an obligation to inform the people of this state that I acted improvidently in this matter, and I am truly embarrassed. The long-standing rules of this court were completely ignored by both parties involved in this matter, as well as the members of this court, including myself. I now know that I should have maintained my initial position of doubt and that I should have refused to cast any vote on the issue until the matter was properly before this court. It is easy to get swept up in the frenzied pace of election-night emergency petitions. However, at the time that we cast our votes to void the circuit court’s order, the matter was actually moot, because the extended voting hours authorized by the circuit court had already expired. Thus, ironically, this court’s hasty action was completely unnecessary.

I share Justice Glaze’s concern for the dangerous precedent that this case creates. It is my hope that by writing separately to confess the mistake I made, future parties will not view this case as precedent.

Having now had the benefit of reviewing the pleadings filed by the parties in this matter, I take no issue with the majority’s decision to void the circuit court’s order. I can certainly empathize with the predicament that Judge Kilgore found himself in on election night, and I have no doubt that his order was based on good intentions and a legitimate concern that the voters of Pulaski County were being disenfranchised. However, I believe that Judge Kilgore went beyond his authority in extending the voting hours.

Additionally, I write separately to emphasize the fact that the parties and the media have misinterpreted our decision in this case. As I read the decision handed down today, this court has merely entered an order declaring the circuit court’s order void. Our order does not address the issue of what to do with those ballots cast after 7:30 p.m. Thus, contrary to what many members of the media have stated, this court has not declared that all votes cast after 7:30 shall not be counted. The reason that we make no ruling on that issue is that there are proper procedures to follow to challenge the counting of particular votes. Hence, any person wishing to make such a challenge should refer to our Election Code, see Ark. Code Ann. § 7-8-101 to -307 (Repl. 2000 and Supp. 2001), for the proper procedures to undertake.

Annabelle Clinton Imber, Justice,

dissenting. The per stopinion iJustice ce, dissenting opinion (issued on November 6, 2002) accurately recite how this matter came to be considered by the Supreme Court. Upon further reflection, and with great respect for each justice’s individual vote in this matter, I must withdraw my oral vote of November 5, 2002, and dissent for lack of jurisdiction. This court is a deliberative body whose function in large part is to review records, consider legal arguments, and determine if error resulted in the trial court proceedings. Dean v. Williams, 339 Ark. 439, 6 S.W.3d 89 (1999). All of our procedural rules, including those for petitions for extraordinary relief and expedited consideration, require a filing with the Supreme Court in order to invoke the court’s jurisdiction. See Ark. Sup. Ct. R. 6-1 (a).

In this case, when six members of the court voted orally to void the trial court’s order, we did so without any record to review. We were only apprised of the situation by the attorneys’ oral representations during a conference call on the night of the November 5 election. The six justices then considered the legal arguments and rendered a decision orally in less than twenty minutes. Even under these extraordinary circumstances, I am unable to ignore our rules of appellate procedure and jurisdiction in order to rectify any error by the trial court, be it jurisdictional or otherwise.

For the aforementioned reasons, and with deep regret, I respectfully withdraw my oral vote of November 5, 2002, and dissent.

       In the telephone conference call, the parties mentioned the case of State ex rel. Bush-Cheney 2000, Inc. v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000), as controlling here. However, that opinion dealt with an election matter that was initiated by the filing of petitions seeking to prohibit enforcement of a trial judge’s order. Our case substantially differs because the parties here did not comply with our rules of civil and appellate procedure.

       At the time of this writing, November 6, 2002, the Republican Party and Sally Stevens, a member of the Pulaski County Election Commission, have for the first time filed an emergency petition for writ of certiorari and a brief; however, the trial court’s and this court’s oral and unfiled orders were issued on November 5, and cannot be offered to establish a basis to rectify this court’s lack of jurisdiction when it rendered its oral decision of November 5.


source: Caselaw Access Project

author: W.H. “Dub” Arnold, Chief Justice.

license: Public Domain

text:
    Marlon Donte HOWELL v. STATE of Arkansas
    CR 01-349
    89 S.W.3d 343
    Supreme Court of Arkansas
    Opinion delivered November 14, 2002

      Linda Scribner, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant Marlon Donte Howell was found guilty of capital murder by a Hempstead County Circuit Court jury, and the trial court sentenced Howell to life imprisonment in the Arkansas Department of Correction. We affirm his conviction and sentence.

On April 29, 2000, Appellant Marlon Donte Howell was at a birthday party in Hope, Arkansas, where he got into an argument with Darryl Allen, Sr. After the altercation, Howell left the party. A short time later, Allen and two women were about to leave the party in Allen’s van when an individual ran up to the window, shot, and killed Darryl Allen, Sr.

Witnesses in the house where the birthday party was being held stated that they heard a shot, came outside, and saw a man named “Donte,” last name unknown, run past the house, but saw nothing in his hands. One woman seated in the van at the time of the shooting stated that the shooter ran in the opposite direction, away from the house.

Police officers were posted to watch the residences of all known “Dontes” from the area. Appellant Marlon Donte Howell was one of several “Dontes” that was being observed by the police. Howell was later arrested in the woods behind his house. He was taken to the police station and interviewed by detectives. Howell was read his Miranda rights from a written form and signed the form. Detectives did not record the first three interviews and only a portion of the fourth. At all interviews subsequent to the first, Howell was not read his rights again, but was told that he was still “under his rights.” Howell did not have phone access or contact with anyone other than law enforcement. At the fourth interview, partially taped, Howell confessed to shooting Darryl Allen, Sr., and told detectives where the gun was located. Detectives later found the gun where Howell indicated.

Howell brings the following points on appeal: 1) sufficiency of the evidence; 2) whether there was probable cause to arrest Howell; and 3) whether Howell’s custodial statement should have been suppressed.

Sufficiency of the Evidence

Howell, in his third point on appeal, contends that the trial court erred in denying his motion for directed verdict. Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before other points are raised. Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State. Beavers, supra; see Jones v. State, supra; Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Beavers, supra; see Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Beavers, supra.

In the instant case, at the close of the State’s case, Howell contended that the State had failed to demonstrate that he was an accomplice to the capital murder. This argument was based upon an inference drawn by defense counsel based upon some of the trial testimony that appeared to be in conflict as to which direction Howell ran after the victim was shot. This is a jury question about weight rather than one going to the sufficiency of the evidence, because the State did not allege that Howell acted with another in the commission of this offense. For the reasons explained below, Howell’s argument is without merit.

The testimony at trial revealed that on April 29, 2000, Howell was at a party at a residence located at 700 North Graham, in Hope. During the party, an apparent argument occurred between Howell and the deceased, Darryl Allen, Sr. Howell left the party in a car with someone else. A short time later, Darryl Allen, Sr., and two women, Carolyn Rodgers and Trenice Pennington, got into a van to leave when the two women saw someone approaching the van. Neither woman recognized the individual, although Trenice Pennington testified that she knew Donte Howell. This individual then approached the van and shot Darryl Allen, Sr., while he was sitting in the driver’s seat. Carolyn Rodgers testified that the shooter then ran away from the house, ran down the hill, and behind the north side of the nursing home. Trenice Pennington did not see which way the shooter ran. Carolyn Rodgers told the detectives that if she saw the shooter again, she would be able to identify him. She was shown a photo lineup, computer photos, and a physical lineup, and in none of these did she pick out Donte Howell as the shooter. She repeatedly advised detectives that Donte Howell did not look like the shooter and that the shooter was taller. The medical examiner’s testimony would seem to confirm a tall suspect, as he testified that the bullet that killed Darryl Allen, Sr., traveled down and across into his skull as he was sitting in the driver’s seat of the van.

Carolyn Rodgers was adamant that the shooter did not run beside the house. She testified at trial, with Howell sitting at defense table, that she has never seen the shooter again since that night. Rodgers testified that the shooter was wearing a black sweater and white hat. Trenice Pennington testified that she saw an individual approach the van, and he was wearing a black jacket, light jeans, and a white hat. She thought it was a friend of Darryl’s wanting to talk and even asked, “Who is that?” He then approached the van and shot Darryl. Trenice also testified that she knew Donte Howell previously.

Lamario Hightower testified that he was inside the house, heard the shot, came outside, and saw a black male named Donte, wearing all black, run from the residence and run east on Avenue H, which is on the opposite side of the house. He said it was “Donte,” but did not know his last name. He later identified the man he saw running as Donte Howell. He also testified that he did not see a gun in Donte’s hands as he was running and that the defendant ran right by the edge of the porch. This testimony was completely contradictory to Carolyn Rodgers’s testimony about the direction in which the shooter ran.

Sherrie Purifoy testified that she was in the house when she heard the shot, and she went to the door and saw Donte running toward the house from the direction of the van. She testified that she did not see anything in his hands.

Officer Rick Hunter testified that he took fingerprints from the driver’s side window of the van and sent the prints to the crime lab for comparison. The prints neither matched those of Darryl Allen, Sr., nor Howell.

The police subsequently arrested Howell after he attempted to evade apprehension. Howell gave a statement admitting that he had gotten into an altercation with the victim, left the scene and returned on a bicycle. Howell told investigators he waited there until the victim came out of the house and got into his van, shot the victim, and fled on foot. Howell further told the police that he threw the gun used to shoot the victim — a .357 revolver — behind a business called Southwestern Frozen Foods. The police subsequently recovered the gun next to a ball cap matching the description of the one worn by Howell at the time of the shooting. Police also located a bicycle a short distance from the victim’s residence that Howell said he used to get back to the victim’s residence after leaving in a vehicle with another person a short time before.

There was testimony at trial that conflicted as to which direction the victim’s assailant ran after firing a single shot into the van. This court has declared it well-settled that the credibility of witnesses is an issue for the fact-finder and not the reviewing court. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (1989). The jury may resolve questions of conflicting testimony and inconsistent evidence and choose to believe the State’s account of the facts rather than the defendant’s. Ross, supra. The testimony at trial of the witnesses to- the shooting, as well as Howell’s confession, was clearly adequate to satisfy the substantial-evidence requirement. Therefore, the trial court’s ruling was correct, and Howell’s argument fails.

Probable Cause to Arrest

Howell also appeals stating that the trial court erred in finding there was probable cause to arrest him and not suppressing the fruits of that arrest. Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). The degree of proof sufficient to sustain a conviction is not required for probable cause to arrest. Id. All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Id.

However, mere suspicion is not enough to support a finding of probable cause to arrest. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986), citing Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, (1964). Probable cause to arrest without a warrant exists when facts and circumstances within the officers collective knowledge and of which they have reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed by the person to be arrested. Roderick, supra.

Howell’s challenge to the existence of probable cause to arrest came within his motion to suppress the statement that he gave after his arrest. However, the following facts that were testified to at trial support a finding of probable cause to arrest Howell. Officer Jimmy Courtney testified that he was dispatched to a residence located at 700 North Graham in response to a call that there had been a shooting at that address. Upon arriving on the scene, Officer Courtney made contact with two females and a male who identified himself as “Hightower” who told him that he had observed a black male wearing all black who ran from the residence after the victim, Darryl Allen, Sr., had been shot at close range while sitting in his van. Hightower identified the man who fled the scene as one known to him as “Donte.” Officer Courtney said that Detective Muldrew and Lieutenant Burrus of the Hope Police Department subsequently arrived on the scene and talked to several witnesses.

Lieutenant Mike Burrus testified at trial that he participated in the investigation surrounding the death of Darryl Allen, Sr. Burrus said that he went to the scene and interviewed Lamario Hightower who told him that he knew the shooter as “Donte,” a person Burrus knew lived on the south side of town. Lamario Hightower testified at trial that he had seen Howell at the victim’s house approximately fifteen to twenty minutes before the shooting when Howell and the victim were arguing. Hightower said that Howell was dressed in black and that, after the argument, Donte left in a vehicle. Hightower described how Howell reappeared immediately after the shooting and then fled the scene.

Pursuant to that information received at the scene, Lieutenant Burrus requested that a patrol officer be dispatched to the residence of Howell’s mother at eleventh and Edgewood streets to await Howell’s return. Officer Jami Yarborough, a patrol officer with the Hope Police Department, testified that she went to the above-mentioned residence to await the return of Howell. While there, Yarborough testified that she observed an individual watching her from a wooded area near the residence. Yarborough said that she radioed this information to the police headquarters and other units where dispatched to assist her. She further testified that as she approached Howell, he fled into the nearby woods. Howell was subsequently taken into custody there by Sergeant Jim Bush and identified as Donte Howell. At trial, Yarborough testified that she noted that Howell was wearing black pants when he was arrested. The clothing worn by Howell matched the description given by witnesses at the scene of the shooting and was subsequently admitted into evidence.

Howell was identified by name as the person who argued with the victim, left, and was then later seen fleeing the scene immediately after the victim had been fatally shot. When confronted by the police a short time later, Howell attempted to evade the police. Flight from the police is a circumstance to be considered in a determination of probable cause to support a warrantless arrest. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001). Based on the foregoing facts and circumstances, the police had probable cause to arrest Howell for the shooting of Darryl Allen, Sr.

Howell argues to this Court that based on the testimony entered by the State as to what the collective knowledge was at the time of Howell’s arrest, the State failed to meet its burden of proof. Howell asserts that probable cause did not exist at the time of arrest, and therefore, Howell’s arrest was illegal and any statements obtained after that illegal arrest are tainted and inadmissible.

However, the police had more than mere suspicion to support a finding of probable cause to arrest in this case. The facts and circumstances within the police officers’ collective knowledge authorized a reasonable police officer to believe that an offense was committed by Howell. There were witnesses to the incident that described a black male, wearing black, who was known as “Donte” fleeing the scene of the crime. Further, Howell fled into nearby woods when the police approached him. Given this collective knowledge, there was probable cause to arrest Howell.

Motion to Suppress Custodial Statement

Howell’s next point on appeal is that the trial court erred in refusing to suppress his confession to the police. When reviewing a trial court’s ruling on a motion to suppress, this court makes an independent determination based on the totality of the circumstances and reviews the evidence in light most favorable to the appellee. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). This court reverses only if a trial court’s ruling on a motion to suppress is clearly erroneoüs. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995). Upon appellate review, this court will make an independent review of the “totality of the circumstances” to determine whether the defendant’s statement was made knowingly, intelligently, and voluntarily. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995).

In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1996), the United States Supreme Court recognized that custodial interrogations produce “compelling pressures which work to undermine the individual’s will to resist and compel him to speak where he would not otherwise do so freely.” A suspect’s waiver of rights is valid only if it is made “voluntarily, knowingly, and intelligently.” Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989).

There are two dimensions to the inquiry of waiver. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135 (1986). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Moran, supra. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances” surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may the court properly conclude that the Miranda rights have been waived. Moran, supra.

This court reviews the totality of the circumstances surrounding the taking of a statement and determines whether an accused knowingly and intelligently waived his rights and will reverse only if the trial court’s finding was clearly erroneous or against a preponderance of the evidence. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). There is no requirement that Miranda warnings be repeated each time a suspect is questioned. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993). Under these standards, the trial court’s denial of Howell’s motion to suppress is affirmed.

In determining whether a confession was voluntary, this Court considers the following factors: age, education, and intelligence of the accused, lack of advice of his constitutional rights, length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001). It must be demonstrated that the activity of the police had a particular effect upon the accused. As the Supreme Court of the United States stated in Colorado v. Connelly, 479 U.S. 157 (1986), there must be an “essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other.” Thus, courts cannot speculate as to “a defendant’s motivation for speaking or acting as he did without some sort of indication from the defendant himself.” Connelly, supra. The nexus between any conduct of the police, coercive or otherwise, and the statement given by the accused, must be established to consider the remedies that flow from the Miranda warnings. The proper inquiry is whether the defendant’s will has been overborne or his capacity for self-determination critically impaired. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). Moreover, voluntariness is not “to be equated with the absolute absence of intimidation,” for under this test virtually no statement would be voluntary. United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987).

Here, the only suggestion of coercive police behavior is Howell’s disputed assertion that he was told “what might happen” to someone charged with capital murder. Detective David Muldrew testified that he administered the rights form to Howell following Howell’s arrest. Muldrew said that he read the waiver of rights aloud to Howell who then signed the form indicating that he was willing to talk to the police. Muldrew testified that Howell appeared to understand the form and his rights, and that he was not under the influence of drugs and/or alcohol. An additional aspect of Howell’s detention was clarified by testimony at trial, which this court may rely on to affirm the suppression ruling. See Hignite v. State, 265 Ark. 866, 581 S.W.2d 552 (1979) (in reviewing the voluntariness of a statement or confession the court makes an independent determination based upon a consideration of the entire record.)

Muldrew testified that he saw Howell on two occasions before Howell confessed: following his arrest and the next morning. Muldrew stated that the total time involved in these two contacts was a total of no more than approximately twenty to twenty-five minutes. The State asserts that at no time was there any indication that Howell was subjected to any kind of “third degree” or techniques designed to overcome his own will. Moreover, the State contends that the only other “coercive” tactic alleged by Howell was that the telephone in his cell was turned off. However, there was also testimony that indicated that arrestees within the detention facility were not allowed outgoing calls when an investigation was ongoing.

Muldrew also testified that Howell’s mother came down to the station on Sunday morning, but Howell never indicated that he wanted to speak to his mother. However, the two did speak. Howell did not assert at the suppression hearing that he had ever requested an attorney. This court held in Miller v. State, 338 Ark. 445, 994 S.W.2d 476 (1999), that the right granted in Ark. Code Ann. § 9-27-317(g)(2)(A)(ii) (Repl. 1998), which requires the police to honor a juvenile’s request to speak with a parent, is a statutory right and not one conferred by the United States Constitution. As such, officers are not required to inform youthful suspects of that right as part of the Miranda warnings. The fact that Howell’s mother was not present for Howell’s waiver of rights might be a factor with regard to determining voluntariness. However, when a person under the age of eighteen is charged as an adult in circuit court, the failure to obtain a parent’s signature on a waiver form does not render a confession inadmissible. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

Howell called Dr. Michael McAllister as a witness on the suppression issue. Dr. McAllister testified that Howell had an IQ of 62 (which is three levels below average for his age) and diagnosed him as mildly mentally retarded. He also testified that such an individual would have poor forethought and judgment. McAllister went on to say that he found Howell competent to stand trial and that he understood the criminality of his conduct. However, McAllister did state that a person functioning at Howell’s level would have trouble adequately comprehending or asserting their legal rights or understand the principles of legal protection underlying the warnings of law enforcement officers, depending on how it is worded.

Also, Howell contends that he was prevented from calling anyone, even his mother. Howell was kept from contact with his mother for several hours until Sunday morning after two or three interrogations. Howell asserts that he was told, on more than one occasion, that he would be strapped to a gurney and they would shoot him with a needle and he would die. Eventually, Howell asserts after eighteen hours of isolation, not being able to call out of his cell on the phone, being kept from his mother and refused a private conversation with his mother, and allegedly being told that he would be strapped to a gurney and injected with a needle, Howell claims he was finally coerced into giving the statement admitting he shot Darryl Allen, Sr.

Howell also suggests that he had been drinking heavily prior to his arrest, and the State asserts that this characterization is overstated and disputed. Howell stated in his confession that he had consumed quantities of alcohol before being arrested, but at the suppression hearing Howell testified that he had been drinking “gin and juice” with another person “a couple of hours” before he was arrested along with a “pint of vodka.” Detective Burrus testified at the suppression hearing that he came into contact with Howell when he was first interviewed, and that Howell was calm and did not appear intoxicated nor did he exhibit other characteristics liked slurred speech. Burrus also stated that Howell appeared the same during the course of the next day after being held overnight in the detention facility.

The evaluation of the credibility of witnesses who testify at a suppression hearing about the circumstances surrounding an appellant’s custodial confession is for the trial judge to determine, and this court defers to the position of the trial judge in matters of credibility. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). Conflicts in the testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings. Wright, supra. So long as there is no evidence of coercion, a statement made voluntarily may be admissible against the accused. Wright, supra.

Howell argues that the trial court erred in failing to grant his motion to suppress as Howell’s custodial statement was not knowingly, intelligently, and voluntarily given. Howell asserts that his custodial statement is presumed involuntary and the burden is on the State to prove that his statement is voluntarily given.

Howell asserts that he is a seventeen-year-old, mildly mentally retarded youth who reads at a second-grade level. Howell was arrested on April 29, 2000, at approximately 10:50 p.m., and was taken to the police station and held in isolation until approximately 11:56 p.m. when Detective Muldrew read a Miranda rights form to him. Muldrew did not inquire as to Howell’s educational or mental background. During this first interview, Howell denied any knowledge of the shooting, and was then returned to isolation and was again interrogated sometime early Sunday morning. Muldrew testified that the second interview was seven to eight hours after that first interview, but another Detective testified the second interview was held only thirty minutes after the first interview. At that time he was not given his Miranda rights again but was simply told that his rights were still in effect. Again, Howell denied any involvement in the incident.

A third interview was held sometime on that Sunday and Howell was again not read his Miranda rights but told he was under his same rights as read the day before. Only after a fourth interrogation, some eighteen hours after his arrest, did Howell give a statement about his involvement in the shooting. Under these circumstances, Howell argues that he did not knowingly, intelligently, and voluntarily waive his Miranda rights and give his statement. As such, Howell contends his statement should have been suppressed, as well as the gun which was recovered as a result of Howell’s statement.

In the instant case, the trial court did not err in denying Howell’s motion to suppress based on the totality of the circumstances. Howell was read the Miranda rights and signed the form indicating that he was willing to talk to the police. Howell’s own witness, Dr. McAllister, testified that he was competent to stand trial and that he understood the criminality of his conduct. The credibility of witnesses who testify at suppression hearings is for the trial court to determine. Further, Howell was allowed to see and speak with his mother, even though he did not request such a visit. Here, it cannot be shown that the trial judge abused his discretion in finding that Howell’s statement was given knowingly, intelligently, and voluntarily. Based on the totality of the circumstances, the trial court’s denial of the motion to suppress was not clearly erroneous.

Rule 4-3(h) Compliance

The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3-(h), and no reversible errors are found.

Affirmed.


author: Tom Glaze, Justice.

text:
    Antoine JEAN-PIERRE. M.D. v. PLANTATION HOMES OF CRITTENDEN COUNTY, INC., d/b/a Southwoods Long Term Residential Care Facility
    02-217
    89 S.W.3d 337
    Supreme Court of Arkansas
    Opinion delivered November 14, 2002

      Thomason, Hendrix, Harvey, Johnson & Mitchell, by: Bruce A. McMullen and Robert L. Moore, for appellant.

      Shackleford, Phillips, Wineland & Ratcliff, P.A., by: Dennis L. Shackleford, for appellee.
   Tom Glaze, Justice.

Southwoods Residential Care Facility is a long-term residential care facility for the treatment and housing of mentally handicapped patients. The estate of Mary Mills (hereinafter Mills) sued Southwoods after a patient, Haywood Wilder, left the facility on January 12, 1996, stole a car, and crashed into Mills’s vehicle head-on, killing her. After a number of amended complaints, Mills also sued Behavioral Health Services (“BHS”), the company that provided doctors and psychiatric treatment to Southwoods’ patients. Mills’s complaint alleged that BHS was negligent for failing to take appropriate steps to control Wilder, despite its recognition that he posed a high risk for dangerous actions, and that Southwoods was negligent in failing to maintain control over Wilder and in admitting him to its facility without adequately evaluating the degree of risk he posed.

Southwoods subsequently filed a third-party complaint against Dr. Antoine Jean-Pierre, the psychiatrist who had been treating Wilder, alleging that he failed to take necessary steps to have Wilder placed in a more appropriate care facility. Further, Southwoods alleged that Dr. Jean-Pierre was negligent in his care and treatment of Wilder, and that any damages or injuries suffered by Mills were caused by the negligence or breach of contract by Dr. Jean-Pierre. The complaint sought indemnity and contribution from Dr. Jean-Pierre, in the event Southwoods was determined to have any liability to Mills’s estate. Southwoods also filed a cross-claim against BHS, alleging that BHS had been negligent and that Southwoods was also entitled to indemnification from BHS. BHS filed a timely answer to Southwoods’ cross-claim.

Dr. Jean-Pierre, however, never filed an answer to Southwoods’ third-party complaint against him. Instead, he filed a motion to dismiss the third-party complaint ten days after his answer would have been due. Southwoods filed a motion for default judgment against Dr. Jean-Pierre, seeking an order that the doctor was liable for contribution and indemnity to Southwoods for any and all losses or judgments rendered against Southwoods, and deeming all allegations of the third-party complaint admitted and true for all purposes. The trial court granted Southwoods’ motion for default judgment.

Dr. Jean-Pierre filed a motion to set aside the default judgment. In support of his motion, he argued that Southwoods’ third-party complaint filed against Dr. Jean-Pierre contained the same allegations of negligence as incorporated in Mills’s original complaint. “Clearly,” he stated, “Southwoods’ third-party complaint is simply an extension of [Mills’s] complaint in that, if Southwoods is found liable, Southwoods claims that any liability was caused by the negligence of Dr. Jean-Pierre. Therefore, the same allegations are contained in [Mills’s] complaint and South-woods’ third-party complaint. Southwoods’ answer to [Mills’s] complaint contains a general denial of negligence, which inures to the benefit of Dr. Jean-Pierre.”

Southwoods eventually settled the claims filed by Mills, agreeing to pay the estate $775,000.00. Subsequently, the trial court held a bench trial to determine whether the settlement was made in good faith and for a reasonable amount under the circumstances. The court made a ruling prior to trial that Dr. Jean-Pierre was limited to challenging the amount of damages and was foreclosed from presenting evidence intended to defeat Southwoods’ cause of action, because Dr. Jean-Pierre’s liability had already been established by the default judgment. At the conclusion of the trial, the court entered an order finding that the settlement was based on good-faith negotiations, was made at arm’s length, and was reasonable, based upon the potential exposure. Therefore, the trial court concluded that Southwoods was entitled to recover from Dr. Jean-Pierre the amount of $775,000.00, plus attorneys’ fees and costs amounting to $191,678.19.

For his first point on appeal, Dr. Jean-Pierre asserts that the trial court erred in entering a default judgment against him, because the answer filed by BHS to Southwoods’ cross-claim inured to his benefit. However, we conclude that this issue is not preserved for appeal. At trial, in his motion to set aside the default judgment, Dr. Jean-Pierre raised a different argument. In that motion, the doctor argued that he should be able to rely on the “common defense doctrine” because Southwoods had filed an answer to the original complaint, filed by Mills. Specifically, the doctor stated as follows:

In the case at bar, the defendant, Southwoods, answered the complaint of the plaintiff by asserting a general denial of all allegations contained in the complaint. Southwoods’ third-party complaint filed against Dr. Jean-Pierre contained the same allegations of negligence as incorporated in the plaintiffs complaint. Clearly, Southwoods’ third-party complaint is simply an extension of the plaintiffs complaint in that, if Southwoods is found liable, Southwoods claims that any liability was caused by the negligence of Dr. Jean-Pierre. Therefore, the same allegations are contained in the plaintiffs complaint and Southwoods’ third-party complaint. Southwoods’ answer to [Mills’s] complaint contains a general denial of negligence, which inures to the benefit of Dr. fean-Pierre.

(Emphasis added.)

On appeal, however, Dr. Jean-Pierre argues that Behavioral Health Services filed an answer to Southwoods’ cross-claim against it, and because the allegations of negligence raised in that cross-claim were “virtually identical” to the allegations raised in the third-party complaint, BHS’s answer should inure to his benefit. Clearly, the argument raised on appeal was not raised below. It is well-settled that this court will not consider arguments raised for the first time on appeal. See, eg., Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001); Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001); B.A.R. Enterprises, Inc. v. Palin Mfg. Co., 312 Ark. 500, 850 S.W.2d 322 (1993).

For his second point on appeal, Dr. Jean-Pierre argues that the trial court erred in awarding Southwoods the amount of $775,000 for default damages when Southwoods failed to prove it was liable to the original plaintiff. Particularly, he maintains that Southwoods had the burden of proving its liability to the original plaintiff, Mills, and that Southwoods failed to meet this burden.

This court has repeatedly held that a default judgment establishes liability, although not the extent of damages. Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996); Byrd v. Dark, 322 Ark. 640, 911 S.W.2d 572 (1995); B&F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Under Ark. R. Civ. P. 8(d), averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied. Clark v. Michael Motor Co., 322 Ark. 570, 910 S.W.2d 697 (1995).

Here, Southwoods’ third-party complaint alleged that Dr. Jean-Pierre was negligent, and it also alleged that Southwoods was entided to indemnification from the doctor. Thus, by defaulting, Dr. Jean-Pierre admitted the truth of Southwoods’ allegations and therefore admitted that he was liable to Southwoods, because the default judgment established liability. Stated another way, Dr. Jean-Pierre’s admission of liability to indemnify Southwoods for the damages it incurred as a result of Dr. Jean-Pierre’s conduct is the liability that was established by default judgment. Further, although Dr. Jean-Pierre asserts that he proffered evidence that he adhered to the applicable standard of care in treating Haywood Wilder, this court has held that a defaulting defendant may not introduce evidence to defeat the plaintiffs cause of action. See Polselli v. Aulgur, 328 Ark. 111, 942 S.W.2d 832 (1997); B&F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992).

Dr. Jean-Pierre also argues that Southwoods settled its suit voluntarily, and that one cannot seek indemnification for sums paid voluntarily. However, it is clear that Southwoods’ settlement with Mills was not “voluntary,” because Southwoods faced a tremendous amount of exposure in the event the matter went to trial. It is true that one cannot recover from an indemnitor “upon a mere showing that the indemnitee has incurred liability, but he must show that he has suffered actual loss by payment or satisfaction of a judgment or by other payment under compulsion.” Carpetland of Northwest Arkansas, Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991) (quoting Larson Machine v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980)). However, the Carpetland court further stated that “compulsion to pay is not confined to a judgment or court order,” noting as follows:

[A] person legally liable for damages who is entided to indemnity may settle the claim and recover over against the indemnitor, even though he has not been compelled by judgment to pay the loss. The fact of voluntary payment does not negative the right to indemnity since a person confronted with an obligation that he cannot legally resist is not obligated to wait to be sued and to lose a reasonable opportunity for compromise. Such recovery is subject to proof of liability and the reasonableness of the amount of the setdement.

Id. at 423. In that case, this court noted that Carpetland had failed to make any showing on the question of its exposure to a judgment, the advisability of reaching a settlement, or the reasonableness of the amount. Here, on the other hand, Southwoods offered proof of these elements and its entitlement to indemnification.

Dr. Jean-Pierre’s third point on appeal is that the trial court erred 'in awarding Southwoods $775,000 for indemnification when Southwoods failed to provide competent proof of the original plaintiff Mills’s damages. Particularly, he claims that Southwoods provided no proof that the settlement was reasonable. This argument is without merit.

As stated above, after a default judgment has been entered, proof is still required to establish the amount of damages, and the defendant has the right to cross-examine the plaintiffs witnesses, to introduce evidence in mitigation of damages, and to question on appeal the sufficiency of the evidence to support the amount of damages awarded. The defaulting defendant may not, however, introduce evidence to defeat the plaintiffs cause of action. See B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992) (quoting H. Brill, Ark. Law of Damages (2d ed.) § 8-1 (1990)).

Here, Southwoods introduced testimony from an economist, who valued the economic loss caused by Mills’s death at $455,000.00. Family members also testified that Mills worked at three jobs and was very much loved by her family. Attorneys handling Mills’s case testified that Southwoods was facing a large degree of exposure — upwards of $2,000,000 — and that the settlement was reasonable under the circumstances. Claims representatives handling the case also testified that the settlement was made in good faith and that the amount was reasonable, given the potential exposure.

On appeal, Dr. Jean-Pierre argues that Southwoods must present competent testimony to support an award of wrongful death damages, and, citing Byrd v. Dark, supra, he asserts that the trial court erred in allowing the attorneys for the Mills estate to testify about the reasonableness of the damages. However, the transcript reflects that Dr. Jean-Pierre never objected to the attorneys’ testimony about the reasonableness of the settlement, and such failure to object at trial precludes review of an argument on appeal. See Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995); McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989).

Finally, Dr. Jean-Pierre argues that the trial court erred in awarding attorneys’ fees to Southwoods. The long-standing rule in Arkansas is that attorney’s fees cannot be awarded unless specifically provided for by statute or rule. St. Francis County v. Joshaway, 346 Ark. 496, 58 S.W.3d 361 (2001); Furman v. Second Injury Fund, 336 Ark. 10, 983 S.W.2d 923 (1999); Arkansas Oklahoma Gas Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998); State ex rel. Bryant v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). Arkansas follows the American Rule that attorney’s fees are not chargeable as costs in litigation unless permitted by statute. Lakeview School District No. 25 of Phil lips County v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000); Love v. Smackover School Dist., 329 Ark. 4, 946 S.W.2d 676 (1997); see also Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001) (Glaze, J., concurring).

The statute on attorneys’ fees in certain civil actions is Ark. Code Ann. § 16-22-308 (Repl. 1999), which provides as follows:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

Southwoods has not cited this statute, nor has it offered any Arkansas case law on the question of whether attorneys’ fees may be allowed in cases of implied indemnification. Southwoods does allude to the case of Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), wherein this court cited the Restatement (Second) of Torts, § 914(2), for the principle that one who, through the tort of another, has been required to defend his own interests against a third person “is entitled to recover reasonable compensation for the loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.” Liles, however, is the only Arkansas case that cites this provision, but the Liles court also set out numerous other reasons to justify the attorney’s fees awarded in that case. We do not find the Liles case to be controlling.

Because the trial court’s order here offered no statutory authority for awarding attorneys’ fees to Southwoods, and because that award was contrary to the general rule against awarding such fees in the absence of a statute or rule, we reverse that portion of the trial court’s order.

For the above reasons, we affirm the trial court’s holdings, but reverse as to the attorneys’ fees.

Arnold, C.J., not participating.

       Mills actually sued Frontier Insurance Company, the liability carrier for BHS, under the direct-action statute, Ark. Code Ann. § 23-79-210.

       Although Dr. Jean-Pierre consistently refers in his brief to the award as being in the amount of $750,000.00, the trial court’s order, as found in Dr. Jean-Pierre’s addendum, states that the amount is actually $775,000.00.


author: WH. “Dub” Arnold, Chief Justice.

text:
    Denise Kaye CHAPMAN; Jonathan Chapman, A Minor; The Estate of Nathaniel Allen Chapman, Deceased; Marlene Fett v. WAL-MART STORES, INC.; Ford Motor Company
    02-368
    89 S.W.3d 906
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      Spencer Law Firm, by: Frederick S. “Rick” Spencer; and Sandy S. McMath & Associates, P.A., by: Sandy S. McMath, for appellant.

      Quattlehaum, Grooms, Tull & Burrow PLLC, by: Leon Holmes, Steven W. Quattlehaum, and Thomas G. Williams, for appellee WalMart Stores, Inc.
   WH. “Dub” Arnold, Chief Justice.

Appellant Denise Kaye Chapman brings this appeal from Baxter County, Arkansas, Circuit Court alleging that the trial court erred in sustaining a motion by Wal-Mart Stores, Inc., for summary judgment, that the trial court erred in holding that placing a children’s horse carousel next to an area determined to pose a pedestrian hazard from intruding vehicles and not extending a protective barrier to include the carousel did not create a question of fact for the jury on the issues of foreseeability and negligence, and that the trial court erred as a matter of law and abused its discretion in failing to certify the case pursuant to Rule 54(b). However, we do not reach the merits of this case because the appeal is not from a final, appealable order as required by Ark. R. Civ. P. 54(b) (2002). We therefore dismiss this appeal for lack of finality.

Because we do not address the merits of this case, we only recite the facts as they pertain to the issue of finality. This case arose from an action involving the wrongful death of six-month-old Nathaniel Chapman and the amputation of two-year-old Jonathan Chapman’s leg, which occurred from a store-front collision on June 7, 1995 at the Mountain Home Wal-Mart Store. The children were riding a small horse carousel in front of WalMart when a car accelerated out of control of its driver, an elderly store patron, Marlene Fett. The vehicle sped across the parking lot and struck the carousel, killing Nathaniel and severing Jonathan’s right leg.

Chapman brought suit against Marlene Fett and Wal-Mart Stores, Inc., alleging Fett was negligent in failing to maintain control of her vehicle, and that Wal-Mart was negligent in placing a horse carousel for children in an exposed and unprotected area adjacent to a parking lot. Chapman later filed a second amended complaint adding Ford Motor Company alleging Ford was negligent in a variety of areas concerning the vehicle Fett was driving. Prior to trial, Chapman settled with Fett out of court. Wal-Mart moved for summary judgment on the ground that, as a matter of law, it owed no duty to install barriers between the sidewalk and the parking lot.

The trial court granted Wal-Mart’s motion for summary judgment on the ground that the event which killed and crippled Chapman’s children was unforeseeable per se. Chapman moved for reconsideration or, in the alternative, for certification of an interlocutory appeal pursuant to Rule 54(b). The trial court denied the motion and refused to certify the judgment as final. Chapman has not dismissed her claims against Ford Motor Company, nor has any final judgment been entered on those claims.

Rule 54(b)

Arkansas Rule of Civil Procedure 54(b) states:

(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the event the court so finds, it shall execute the following certificate, which shall appear immediately after the court’s signature on the judgment, and which shall set forth the factual findings upon which the determination to enter the judgment as final is based. . .
(2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.

Ark. R. Civ. P. 54(b).

This court has held that, without certification, this court lacks jurisdiction and the order is not appealable. Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002); Eason v. Flannigan; 349 Ark. 1, 75 S.W.3d 702(2002); Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000); Stockton v. Century Ins., 332 Ark. 417, 965 S.W.2d 762 (1998). The policy reason behind the rule is to avoid piecemeal appeals. Eason, supra. Even though an issue might be an important one, if the decision does not conclude the merits of a case, then an appeal would be premature, Id. As this court stated in Dodge, “although Rule 54(b) provides a method by which the trial court may direct entry of final judgment as to fewer than all of the claims or parties, where there is no attempt to comply with Rule 54(b), the order is not final and we must dismiss the appeal.” Id.

Chapman argues that this court has jurisdiction under Rule 2 of the Arkansas Rules of Appellate Procedure — Civil, which states in part:

(a) An appeal may be taken from a circuit court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the circuit court
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action
11. An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the circuit court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties and has made an express determination, supported by specifc factual findings, that there is no just reason for delay, and has executed the certificate required by Rule 54(b) of the Rules of Civil Procedure

Italics added. Ark. R. App. P. — Civ. 2. However, the execution of the certificate as required by 54(b) is lacking in this case. Therefore, under the plain language of Rule 2, the lack of certification bars an appeal of the order.

In the instant case, Chapman brought action against WalMart, Fett, and Ford Motor Company. The trial court granted Wal-Mart’s motion for summary judgment, and Chapman has settled her claim against Fett. The claim against Ford Motor Company has not been resolved, and therefore the trial court refused to certify its order that dismissed the case against Wal-Mart with prejudice because the case against Ford Motor Company has not been adjudicated and the claims are still pending. Without the trial court’s certification of its judgment, there is no final judgment, and without a final and appealable order, this court lacks jurisdiction pursuant to Rule 54(b).

Appeal dismissed.

Corbin and Imber, JJ., not participating.


text:
    James Robert PUGH v. STATE of Arkansas
    CR 02-464
    89 S.W.3d 909
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      Marianne L. Hudson, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant James Pugh was convicted of being an accomplice to capital murder and sentenced to life imprisonment for his involvement in the killing of Keith Van Maren. Pugh and a woman named Joy Doss were allegedly friends of Van Maren’s, but Pugh and Doss suffocated and strangled Van Maren while he slept in the early morning hours of December 6, 2000. On appeal, Pugh does not challenge the sufficiency of the evidence. Instead, he asserts that the trial court made a number of evidentiary errors that prevented him from effectively demonstrating his affirmative defense of duress.

For his first point on appeal, Pugh asserts that the trial court erred when it refused to permit the complete testimony of Dr. John Anderson, a psychologist employed by the State Flospital. Pugh sought to introduce Dr. Anderson’s testimony and diagnosis of Joy Doss to show that he was acting under duress and under threat from Doss, who had a borderline personality disorder. Before making a ruling on the relevancy of this testimony, the trial court first allowed Dr. Anderson to proffer his testimony about Doss; during the proffer, the doctor stated that he had diagnosed Doss with having a borderline personality disorder because she exhibited at least seven of the nine personality traits that are considered to comprise that disorder. The trial court then ruled that two of the traits were at least “remotely relevant,” and permitted Pugh to elicit testimony from Dr. Anderson that Doss exhibited these two particular traits associated with the disorder: 1) having a pattern of unstable and intense relationships; and 2) expressing intense anger and having difficulty in controlling her anger.

Dr. Anderson testified first that he diagnosed Doss as having borderline personality disorder, and then informed the jury about these two particular traits. He also stated that Doss’s displays of “inappropriate, intense anger” would affect someone who lived with a person with borderline personality disorder. Dr. Anderson conceded, however, that he could not tell the jury how Pugh would react in any given situation.

We note initially that the State asserts that this issue is not preserved for appeal, because Pugh failed to object to the trial court’s ruling that Pugh could only introduce testimony to those two traits. However, it appears that the issue is preserved, because the question both at trial and on appeal is one of relevancy — at trial, Pugh objected to the court’s exclusion of Dr. Anderson’s testimony on the remaining traits by asserting that the evidence was relevant to prove his defense of duress, and on appeal, he continues that same argument.

Nevertheless, the point is without merit. This court has repeatedly held that the admission or rejection of evidence is within the discretion of the trial court, which this court will not reverse in the absence of a manifest abuse of that discretion. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002); Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). Here, it is clear that the trial court did not abuse its discretion, and in fact soundly exercised its discretion in permitting even two of these personality traits to come in on the basis that they were “remotely relevant.”

Further, this court held in Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999), that evidence of a co-defendant’s psychiatric condition is not relevant to the charges at issue absent any showing that the defendant was aware of the other person’s disorder or that he acted in reliance on it. Pugh makes no argument that he was aware of Doss’s borderline personality disorder at the time the murder was committed. In addition, even though evidence of Doss’s disorder was, at best, marginally relevant, the trial court nevertheless permitted Pugh to question Dr. Anderson about his diagnosis of Doss and about the only two traits that were arguably relevant to his defense.

Finally, Dr. Anderson testified that, based on his evaluation of Pugh, he did not believe Pugh was any more susceptible of reacting to Doss any differently than anyone else. To prove duress, one must show that he was compelled to act by a threat or use of unlawful force that a person of ordinary firmness in the actor’s situation would not have resisted. Ark. Code Ann. § 5-2-208(a) (Repl. 1997). Given Dr. Anderson’s testimony on this issue, it is unlikely that the jury would have found any differently if it had heard evidence regarding Doss’s remaining personality traits. As Pugh cannot demonstrate how he was prejudiced by the exclusion of this other testimony, we hold that there was no abuse of discretion by the trial court.

Next, Pugh argues that the trial court erred in excluding Dr. Anderson’s forensic report of Doss. The trial court permitted Pugh to introduce the doctor’s cover letter attached to his report, containing the diagnosis of borderline personality disorder, but ruled that the remainder of the report would have been cumulative and irrelevant.

The trial court did not abuse its discretion in making this ruling, because the issue in this case was not Doss’s psychological condition or diagnosis, but was instead the reasonableness of Pugh’s reaction to her. See § 5-2-208(a). The judge had already permitted Dr. Anderson to testify on those areas of Doss’s state of mind that had some bearing on Pugh’s behavior, and the information contained in the forensic evaluation added nothing to the evidence that was already before the jury. Therefore, the trial court correctly ruled that this evidence was cumulative and irrelevant.

For his third point on appeal, Pugh challenges the trial court’s exclusion of the testimony of Otis Doss, Joy Doss’s estranged husband. Particularly, he asserts that this testimony was relevant to showing that Doss’s borderline personality disorder was not just an abstract idea, but was instead a real disorder that manifested itself in a pattern of behavior. The court ruled that Otis Doss’s testimony was not relevant.

Otis’s proffered testimony revealed that Joy Doss was angry, destructive, and strong, and that she had once threatened to kill him. However, the defense of duress requires that the perceived threat or use of unlawful force be against the actor or another person; it does not encompass threats made to or force used against a third party of which the actor was unaware. Here, the issue was not Joy Doss’s pattern of behavior, but is instead whether Pugh had a reasonable belief that he had no choice but to follow her orders to help kill Keith Van Maren. Further, Pugh conceded that Otis had never observed Doss’s conduct toward Pugh, and thus the trial court was correct in ruling that there was no evidence in the proffer that would illuminate the relationship between Doss and Pugh.

Fourth, Pugh asserts that the trial court abused its discretion in refusing to admit a letter written by Doss to Sheila Uptegrove, a friend of Pugh, Doss, and Van Maren. In the letter, Doss complained of being lonely, hopeless, worthless, and despicable; Pugh sought to introduce it to demonstrate Doss’s state of mind. The trial court excluded it, however, ruling that the letter was hearsay.

On appeal, Pugh argues that the question was one of relevance, and does not address the trial court’s hearsay ruling. Even if his relevance argument had merit, which it does not, this court will still not reverse in light of Pugh’s failure to attack the trial court’s independent, alternative basis for its ruling. See Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989) (where trial court expressly based its decision on two independent grounds and appellant challenged only one on appeal, this court affirmed without addressing either). In any event, because it appears that the letter was written after the murder, the letter was not relevant to showing how Doss’s state of mind affected Pugh, and the trial court committed no error in excluding it.

Finally, Pugh argues that the trial court erred when it permitted the prosecutor to inform the jury that the death penalty had been waived. Prior to trial, the State filed a motion in limine seeking to prevent Pugh from speaking to the jury about the sentencing range and possible punishments until the sentencing phase of the trial. At a pre-trial hearing, Pugh responded to the motion by noting that the State intended to tell the jury that it had waived the death penalty. Pugh stated his belief that if the State was able to let the jury know that the death penalty would not be an issue, it seemed only proper that the jury be told the only alternative sentence would be life without parole. The trial court granted the State’s motion in limine, reasoning that life without parole would not necessarily be the only other sentence that could be imposed, because it was possible for the jury to convict on one of the lesser-included offenses Pugh had requested, which would bring into play a whole range of sentencing options.

On appeal, Pugh asserts that permitting the jury to hear that the death penalty was not an option was improper. This point has no merit for two reasons. First, during voir dire, the prosecutor asked if the fact that the death penalty would not be an issue caused anyone to feel that the case was less serious; there was no response from the panel to this question. In posing the question, the prosecutor never said the death penalty had been waived, or that the State had shown Pugh mercy by not asking for death.

Second, Pugh relies on Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999), where the prosecutor stated — during closing arguments — that Leaks had already gotten a break because the State only charged him with first-degree murder, instead of capital murder. The Leaks court held that the prosecutor’s statements suggested that the evidence could have supported a charge of capital murder, and his comments may have skewed the jury’s deliberations in favor of first-degree murder instead of second-degree murder. However, this court held in Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001), that there was no abuse of discretion by the circuit judge in allowing a reference to a death-penalty waiver to be made by the prosecutor. In distinguishing the. facts in Hill from those in Leaks, the Hill court noted that the prosecutor in that case did not allude to offenses with which Hill had not been charged or argue that Hill had already been given a break.

Here, unlike in Leaks, the prosecutor never made any suggestions that could have caused the jury to suppose that the death penalty might have been warranted, or that Pugh was fortunate not to have had the death penalty as an option. Hill, rather than Leaks, controls this issue, as the facts and the argument in Hill were nearly identical to the one presented here. Consequently, we are unable to conclude that the trial court erred in allowing the State to make this statement to the jury.

Affirmed.

Imber, J., not participating.