author: Bradley D. JESSON, Chief Justice.

text:
    Gary Duaine DAVIS v. STATE of Arkansas
    CR 96-251
    925 S.W.2d 402
    Supreme Court of Arkansas
    Opinion delivered July 1, 1996

      Ann C. Hill, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Bradley D. JESSON, Chief Justice.

The appellant was convicted of robbery and sentenced to forty years in prison. He raises two issues on appeal, neither of which merit reversal.

At the beginning of voir dire, the appellant, who is African-American, observed that none of the forty-two venirepersons assembled were African-American. He moved to quash the jury panel. The judge denied the motion to quash and entered into the record a copy of his order that created the master list from which this panel was drawn. The order directed the county’s circuit clerk and computer programmer to create a master list of petit jurors pursuant to Ark. Code Ann. § 16-32-103 (a) (Repl. 1994). That statute mandates random selection of prospective jurors from a list of registered voters.

Selection of a jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to trial by jury. The State may not deliberately or systematically deny to members of a defendant’s race the right to participate, as jurors, in the administration of justice. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989). If a defendant contends that such systematic or deliberate exclusion has taken place, he must prove the following to establish a prima facie case: 1) the group alleged to be excluded is a distinctive group in the community; and 2) the representation of this group in the venire from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) this underrepresentation is due to systematic exclusion of this group in the jury selection process. Duren v. Missouri, 439 U.S. 357 (1979).

There is no requirement that the jury which is chosen mirror the community and reflect the distinctive groups in the population. Sanders v. State, supra. A defendant does not meet his burden of proof by simply showing that the venire is not racially representative of the community. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). In this case, the appellant presented no proof regarding the second and third elements set forth in Duren. We have noted in particular where proof of a systematic exclusion of the distinctive group is completely lacking, there is no basis for a motion to quash the jury panel. Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993). We have also recognized that where the venire is chosen by computer, using the random-selection process mandated by § 16-32-103, there is no possibility of a purposeful exclusion of African-Americans. Sanders v. State, supra; Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986). The trial court’s denial of the motion to quash is therefore affirmed.

The appellant’s second issue concerns the victim’s identification of him in a photographic lineup. The photograph of the appellant which was used in the lineup was taken by the Hot Springs Police Department on October 4, 1994. At the time, the appellant was under arrest for aggravated robbery, an offense unrelated to this case. According to the appellant, the arrest on the aggravated robbery charge was ruled invalid by a federal magistrate. Therefore, he argues, the photograph was the product of an illegal arrest and should not have been used in this case. At trial, he moved to suppress the victim’s identification of him in the lineup and the victim’s identification of him in court. Unfortunately, we are unable to consider this issue. The appellant’s abstract is completely devoid of trial testimony. The record on appeal is confined to that which is abstracted. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987). Without an abstract of the trial proceedings, we are unable to assess the impact of the allegedly tainted photograph on the trial or determine whether prejudice resulted.

Affirmed.

Dudley, J., not participating.


source: Caselaw Access Project

author: Tom Glaze, Justice. Robert L. Brown, Justice, Andree LAYTON Roaf, Justice,

license: Public Domain

text:
    Wilford Gene JOHNSON, Jr. v. STATE of Arkansas
    CR 95-1071
    926 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered July 1, 1996

      James R. Marschewski, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Wilford Gene Johnson, Jr., was convicted of the first-degree murder of Joe Cheek, who was bludgeoned to death on April 25, 1994. He was sentenced to life imprisonment. In this appeal, Johnson raises four points for reversal.

Johnson confessed to killing Cheek, but he argues the trial court erred in denying his motion to suppress the introduction of his confession because police officers failed to comply with Ark. R. Crim. P. 2.3 or to properly advise him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). We first address his Rule 2.3 argument. That rule provides as follows:

If a law enforcement officer acting pursuant to the rule requests any person to come to or remain at the police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

This court considered Rule 2.3 in Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988), where the court reversed Burnett’s conviction, holding he had been unlawfully seized without probable cause at his home in violation of the Fourth Amendment and Rule 2.3. Specifically, the court held that the six arresting officers had failed to comply with Rule 2.3, which requires that an officer inform a person he is free not to accompany the officer if the officer does not have a warrant. The Burnett court set out the following test established in United States v. Mendenhall, 446 U.S. 544 (1980), when determining whether one has been unlawfully seized:

We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable: person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, the physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. (Emphasis added.)

The court in Burnett further relied upon the following rationale in Dunaway v. New York, 442 U.S. 200 (1979), where the court held Dunaway’s detention amounted to an arrest:

In contrast to the brief and narrowly circumscribed intrusions involved in those cases [Terry v. Ohio, supra, and similar decisions], the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was free to go, ’ indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an ‘arrest’ under state law. The mere facts that petitioner was not told he was under arrest, was not ‘booked, ’ and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, [cite omitted] obviously do not make petitioner’s seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any ‘exception’ that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause. (Emphasis added.)

Using the foregoing Mendenhall test, the Burnett court held that a reasonable person in Burnett’s position would have thought that he had no choice except to accompany six officers to the police station. The court determined that, although the officers said Burnett was not arrested when he was picked up at his home, he was simply told to get his clothes on and come to the station. None of the six officers informed Burnett he could stay at home.

In reviewing a trial judge’s ruling on a motion to suppress, we review the evidence most favorable to the appellee, Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995). Here, the record reflects that, on April 26, 1994, the day after Cheek’s murder, Officers Jay Rider and Lanny Reese were at the crime scene, an alley, where they observed Johnson looking for something. The officers talked to him briefly, and asked him if he would come to the police station for an interview. At the station, Johnson was read his rights, and after giving the officers some general information, he asked if he could leave. He was told that he was free to leave at any time. Johnson then told the officers that, on the night of April 25th, he had been drinking with Cheek and two other guys in the alley where Cheek’s body was later found. He said that sometime that night he could not locate his bedroll, and, while he felt Cheek had done something with it, Cheek would not tell him where the bedroll was. Johnson then left Cheek and the other men, and spent the night at the Salvation Army. Johnson explained to the officers that he had returned to the alley the next day to continue his efforts to find his bedroll. After relating his story to Rider and Reese, Johnson asked if he was under arrest, and was told no and was again told he was free to go at any time. A short time later, the officers, once again, informed Johnson that he was free to go, and he left.

On May 1, 1994, Officer Howard testified that he directed an on-duty officer to find Johnson and tell him that “we simply want to talk to him; that he was not under arrest.” Officer Smalley located Johnson, asked him if he would come down to the station and was told he was not under arrest. No rights were read to Johnson, and no statement was taken. During his interview, Johnson tracked his earlier story that Cheek was alive when Johnson left him on the night of the 25th. Johnson was told that the officers would like to talk to him again if he would come back the next day, May 2nd. No time was set, but Johnson returned about noon, May 2. Officer Howard advised Johnson that he was not under arrest and said, “you’re here of your own free will.” The officers did not read Johnson his rights; Johnson’s story remained the same — that Cheek and the other two men were present and alive when he left them the night of April 25.

After telling his story again, Officer Reese testified that Johnson was free to leave, but did not do so. Officer Howard further testified that by now [May 2, 1994] Johnson knew where the restrooms, water fountains and coffee pot were, and he was free to come and go as he pleased — “he’s been advised of that fact.” Shortly after Johnson repeated his story and when Reese expressed his own thoughts that “somebody had gotten in an argument with Cheek” and used a metal bar to murder Cheek, Johnson volunteered, “No, it was a two-by-four.” At that point Officer Howard stopped the interview and read Johnson his rights. Johnson then gave an incriminating statement which, at trial and on appeal, he seeks to have suppressed.

In summary, on April 26, 1994, Officers Rider and Reese were investigating the crime scene when they saw Johnson looking for something in the alley and, as a consequence, they asked him if he would come to the police station for an interview. At the station, Johnson was read his rights, and during his interview, Johnson was told three times that he was not under arrest and was “free to leave at any time.” Johnson left shordy after he was told the third time that he was free to go. On May 1, Officer Smalley found Johnson to ask him “if he would come down to the station,” and at the same time, he told Johnson he was not under arrest. And lasdy, Johnson was asked “if he could return the next day,” which he did at a time of his choice, about noon.

Considering the totality of the circumstances, it is clear Johnson was well informed that he was never under arrest, and was free to leave the police station and to come and go when he pleased. He was never threatened verbally or physically by the officers, nor was he ever informed he would be physically restrained if he refused to appear at the station. Rule 2.3 does not provide that a person must repeatedly be advised that he has no legal obligation to come to the police station each time he agrees to appear for an interview or questioning. In fact, even in situations where Miranda warnings might have been required, no such constitutional requirement exists that warnings be repeated each time a suspect is questioned. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993). We conclude that the officers’ actions complied with the requisites of Rule 2.3 and the Fourth Amendment and offer Johnson no valid grounds for suppressing his confession.

Johnson’s second argument bears on the officers’ failure to advise him of his Miranda rights on May 2 before he disclosed Cheek had been beaten by a two-by-four. However, it is settled that the safeguards prescribed by Miranda be applicable as soon as a suspect’s freedom of action is curtailed to “a degree associated with formal arrest.” State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). As discussed by us in addressing Johnson’s Rule 2.3 argument, the record reflects he was never taken into custody or otherwise deprived of action in any significant way either prior to or at the time he made his incriminating statement on May 2nd. That being so, the officers’ repetition of Miranda warnings to Johnson on May 2 before his confession was not required.

Johnson’s next point is that his confession should have been suppressed because the state failed to provide all of the material witnesses at the suppression hearing who had been present when Johnson gave his inculpatory statement. See Griffin v. State, 322 Ark. 206, 213, 909 S.W.2d 625, 629 (1995). He asserts Officer Rider and Detectives Lonetree and Risley were not listed or produced as state witnesses at the Denno hearing even though they were material witnesses who were connected with the controverted confession. As Johnson points out, the court has held that, whenever an accused offers testimony that his confession was induced by violence, threats, coercion, or offer of reward, the state has the burden to produce all material witnesses who were connected with the controverted confession or give an adequate explanation of their absence. Here, although Johnson by motion challenged the admission of his confession into evidence based upon Rule 2.3 and Miranda grounds, he never made a motion or obtained a ruling questioning the voluntariness of his confession. Nor did he argue or testify at the suppression hearing that his confession was coerced or involuntary. Because Johnson failed to make the involuntariness-material witness argument below, he is barred from having it considered for the first time on appeal. See Harris v. State, 320 Ark. 677, 899 S.W.2d 459 (1995).

In his final argument, Johnson argues the trial court erred in not granting a mistrial because the state violated Rule 17.1 (a) (ii) of the Arkansas Rules of Criminal Procedure which requires the state to disclose any written or recorded statements and the substance of any oral statements made by the defendant. Johnson’s argument centers on Officer Rider who did not testify at the Denno hearing below, but did testify at trial, relating that he had participated in the earlier questioning of Johnson at the police station. Rider testified that, during his interview of Johnson, he challenged Johnson to swear on a Bible that he did not kill the victim, but when he presented a Bible to Johnson, Johnson declined to do so. Johnson’s counsel moved for a mistrial which the trial court took under advisement. In later denying Johnson’s motion, the trial court offered Johnson a continuance to which defense counsel responded he did not need a continuance, and stated it was too late to do any “damage control.”

The law is settled that a mistrial is a drastic remedy to which resort should be had only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). The decision whether to grant a mistrial is within the sound discretion of the trial court. Id. Here, Johnson’s argument must fail for several reasons. First, Johnson’s abstract fails to reveal he made a discovery request for any oral statements that he may have made. Second, in reviewing Rider’s trial testimony, it appears Rider related the Bible incident during direct examination, but counsel first objected when Rider again mentioned the Bible incident on cross-examination. It is clear that an objection must be made at the first opportunity to do so or it is waived. Watkins v. State, 320 Ark. 163, 895 S.W.2d 532 (1995). But, more important, Johnson fails to argue what manifest prejudice occurred from the Bible-incident reference, especially since that testimonial reference pales in significance to the confession testimony already given by Rider and others that Johnson said he had killed Cheek with a two-by-four. See Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). Third, this court has held that when the state violates the pretrial-discovery rule, the court has the following four options under Ark. R. Crim. P. 19.7: (1) The evidence may be excluded; (2) discovery or inspection may be ordered; (3) a continuance can be granted, and (4) an appropriate order may be entered depending upon the circumstances. Reed v. State, 312 Ark. 82, 847 S.W.2d 34 (1993). Johnson asked for none of the foregoing options, but the trial court offered a continuance which Johnson declined. Under the circumstances described above, we cannot say the trial court abused its discretion in rejecting Johnson’s motion for mistrial.

Because we find no merit in Johnson’s four points for reversal, we affirm.

Newbern and Roaf, JJ., dissent; Brown, J., concurs; Dudley, J., not participating; Special Justice TOM B. SMITH joins this opinion.

Robert L. Brown, Justice,

concurring. I concur that the alleged violation of Rule 2.3 does not merit a reversal in this case but write because I have concluded that Johnson was in custody for all intents and purposes on May 2, 1994. This was the third time that he had been questioned by police officers in connection with Cheek’s murder. On the first occasion [April 26, 1994], he was given the Miranda warnings. On the second occasion [May 1, 1994], he was not advised of his Miranda rights. On May 2, 1994, he was not advised of his rights until after he had made the inculpatory statement, “No, it was a two-by-four.” After he made that statement, he was read his rights, and he gave a full statement, which included an admission that he had murdered Cheek. The issue then is whether Johnson was denied his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel.

My conclusion that Johnson was in custody is premised on several factors. He was interrogated on May 2 for four hours (from 9:00 a.m. to 1:00 p.m.) by multiple police officers. Sergeant Howard admitted that the investigation had centered on Johnson by May 2, and at trial he testified that there were never less than three police officers present during the interrogation and that there may have been as many as six or seven officers on occasion. Sergeant Howard’s testimony also reveals that the grilling was intense and at times the officers called Johnson “a liar.” His shoes were removed to conduct tests on what appeared to be blood splatters. Hence, he was barefoot. He was questioned about the blood spots and again called a liar when he denied knowledge of blood on his shoes.

Under these circumstances, Johnson’s freedom was curtailed to a degree associated with formal arrest. See Berkemer v. McCarty, 468 U.S. 420 (1984); State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or is otherwise deprived of action in any significant way.” Spencer v. State, 319 Ark. at 457, 892 S.W.2d at 485. The test is an objective one of how a reasonable person would view the situation. Stansbury v. California, 114 S.Ct. 1526 (1994). Johnson was barefoot and undergoing a prolonged and intense interrogation by several officers after being called to the police station for a third time. This was clearly custodial interrogation in my judgment.

The question then becomes whether he was appropriately Mirandized before he made his two-by-four admission. I do not believe he was. His warnings given six days earlier had become stale. We did refuse to suppress a statement in Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984), where the lapse between Miranda warnings and the statement had been three or four days. But in Barnes, the lapse of time was not as great, and the defendant was under arrest from the beginning. Also, in Barnes the confession was not obtained through interrogation but rather as a compulsion on the defendant’s part to repent and confess.

Irrespective of whether the two-by-four statement was given in accordance with Miranda requirements, Johnson then made a complete statement after being advised of his rights on May 2. Confessions voluntarily made after proper Miranda warnings and waivers are not tainted by previous unwarned statements unless those unwarned statements were deliberately coerced or improper tactics were utilized. Oregon v. Elstad, 470 U.S. 298 (1985); Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). Though I believe the questioning leading up to the two-by-four statement was custodial interrogation, I am not convinced that it was so impermissibly coercive and improper as to taint the later, valid confession. For example, Sergeant Howard testified that the two-by-four statement “came almost out of the blue.” Accordingly, I concur.

Andree LAYTON Roaf, Justice,

dissenting. I do not agree that the police officers who interrogated Johnson complied with Ark. R. Crim. P. 2.3. As his incriminating statement was given while he was unlawfully seized, and before he was advised of his Miranda rights, I would reverse.

The majority opinion discusses the circumstances of Johnson’s three interrogations on April 26, May 1, and May 2, 1994. I do not dispute the recitation of the facts. However, Johnson made his confession on May 2, not April 26 or May 1. A law enforcement officer requested on May 1 that Johnson come to the police station on May 2; this request triggers the application of Rule 2.3. There is no indication that any further statements were made to Johnson at the time of this request; therefore, the officer failed to comply with Rule 2.3. The majority correctly states that Officer Howard testified that he advised Johnson on May 2 that he was not under arrest and that he was “there of his own free will.” However, we have held that advising a suspect that his cooperation is voluntary does not satisfy the positive duty to make it clear that there is no legal obligation to comply with the officer’s request. Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Addison v. State, 298 Ark. 1, 763 S.W.2d 566 (1989).

The majority further states that Officer Reese testified that “Johnson was free to leave, but did not do so.” This is also correct, but this testimony in no way informs us what Reese, or any other officer, told Johnson. The same can be said for the testimony of Officer Howard, who stated that Johnson knew where the restrooms, water fountains, and coffee pot were located, and was free to “come and go” as he pleased, presumably to get water, coffee and to use the restroom during his “interview” on May 2. This testimony again falls short of the standard for Rule 2.3 compliance.

I am most troubled by the majority’s conclusion, without authority, that Rule 2.3 need only be complied with at the initial request, when there are repeated requests to come to the police station. This is perhaps a concession that the officers’ testimony does not support a holding that the rule was complied with on May 1 or May 2. Although I agree that we are to consider the totality of the circumstances in determining whether Johnson’s confession should be suppressed, to do so in this case entails consideration of the entire record, including the officers’ testimony at trial. Hignite v. State, 265 Ark. 866, 581 S.W.2d 552 (1979). At trial, the officers testified that Johnson was interrogated at the police station on May 2 from approximately 9:00 a.m. to 1:00; he was unshod and was only told, for the purpose of Rule 2.3, that “you’re here of your own free will.”

I respectfully dissent.

Newbern, J., joins in this dissent.

       We note that Johnson also argues that he had been seized for Fourth Amendment purposes when, during his interview on May 2, an officer saw what he believed to be blood spatters on Johnson’s shoes. Johnson consented to the taking of his shoes, but the officer said he was still free to leave. An officer offered to buy Johnson some shoes, but Johnson refused. This testimony was elicited at trial, and not the suppression hearing, so this part of Johnson’s argument was not before the trial court at the suppression hearing when the trial court denied Johnson’s motion to suppress.

       We note that Johnson generally mentioned “Rules 3.1, 4 and 13.1 of the Arkansas Rules of Criminal Procedure and the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 2, Section 8 of the Arkansas Constitution.”


author: Tom Glaze, Justice.

text:
    Karla THOMSON v. Munir ZUFARI, M.D.
    96-269
    924 S.W.2d 796
    Supreme Court of Arkansas
    Opinion delivered July 1, 1996

      Karr & Hutchinson, by: Charles Karr, for appellant.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: R. Ray Fulmer, II and Charles R. Ledbetter, for appellee.
   Tom Glaze, Justice.

On March 6, 1992, appellee Munir Zufari, M.D., performed gastric bypass surgery on appellant Karla Thomson, and during the surgery, a portion of Thomson’s small bowel was mistakenly stapled. Complications later resulted and Thomson was required to undergo additional surgery. On March 4, 1994, two days short of the two-year statute of limitations provided under Ark. Code Ann. § 16-114-203(a) (Supp. 1995), Thomson filed a pro se complaint for medical malpractice against Zufari and two other parties. While under ARCP Rule 4(1) Thomson had until July 2, 1994, or 120 days after filing her complaint to obtain service and commence her lawsuit, she for some reason was unable to do so. However, on June 23, 1994, within the initial 120-day commencement, Thomson asked for another 120 days, but on July 28, 1994, the trial court granted and entered only a 30-day extension. Still unable to obtain service on Zufari and the other defendants, Thomson, on August 18, 1994, moved to dismiss without prejudice, which the trial court granted on September 14, 1994.

When Thomson refiled her complaint against Zufari on August 11, 1995, Zufari moved for summary judgment, alleging Thomson’s claim was barred by the two-year statute of limitations. The trial court granted Zufari’s motion from which Thomson brings this appeal. The trial court ruled correcdy, and we must affirm.

Arkansas’s rules pertaining to commencement of an action require only that the plaintiff complete service upon the defendant within 120 days from filing the complaint. However, if the plaintiff fails to complete service during that period, he or she may still request that the time be extended to complete service in order to protect the plaintiff against the running of a statute of limitations if that extension is requested within the 120-day period. Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994). We have further said that, to toll the limitations period to invoke the one-year savings statute, Ark. Code Ann. § 16-56-126 (1987), a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant. Even where a court later finds the plaintiff’s timely completed service was invalid, the plaintiff is not debarred from benefiting from the one-year savings statute. Id.

Here, Thomson never obtained completed service upon Zufari within the 120-day period, and while she requested an extension to obtain service within the initial 120 days, she was granted only 30 days, ending on August 1, 1994. Thomson continued to be unable to serve Zufari, and did not obtain a voluntary nonsuit of her complaint until September 14, 1994. As a consequence, Thomson never completed service so as to toll the statute of limitations and invoke the one-year savings statute.

Before leaving the foregoing issue, we mention Thomson’s suggestion that the 30-day extension she obtained ran from July 28, 1994, the date her motion was granted. Rule 6 of the Arkansas Rules of Civil Procedure provides that a court may enlarge a period originally prescribed if requested before the expiration of that period. Here, Thomson made a timely request within the 120-day period, but the court’s grant of 30 days merely enlarged the originally prescribed 120 days, thereby extending it to August 1, 1994.

Finally, Thomson cites Rule 4 of the Arkansas Rules of Civil Procedure which provides that, upon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service. She asserts the clerk was required to issue a summons and deliver it to the sheriff, and it is not fair for her to be penalized because of the action or inaction of the clerk. Our Rule 4 contemplates placing the summons with the plaintiff’s attorney who then is to see that the summons is served by an appropriate official. Reporter’s Notes to Rule 4:2 (1996). Cf. Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994). As we have held many times, pro se litigants are held to the same requirements to which attorneys are held. Jewell v. Ark. State Bd. of Dental Examiners, 324 Ark. 463, 921 S.W.2d 950 (1996).

Affirmed.

Dudley, J., not participating.


author: DONALD L. Corbin, Justice.

text:
    Jerry ANSLEMO v. Charles TUCK
    96-156
    924 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered July 1, 1996

      Q. Byrum Hurst Law Offices, by: Q. Byrum Hurst, Jr., for appellant.

      W. Paul Blume, for appellee.
   DONALD L. Corbin, Justice.

Appellant, Jerry Anselmo, appeals the jury’s verdict in favor of appellee, Charles Tuck, from the Washington County Circuit Court. Because this case involves a question concerning the law of torts, this court has jurisdiction of the appeal pursuant to Ark. Sup. Ct. R. l-2(a)(16). In support of his appeal, Anselmo argues that the jury’s verdict is not supported by substantial evidence and that the trial court erred in denying his motion for judgment notwithstanding the verdict. Because we find no merit to either argument, we affirm.

FACTS

This cause of action arose out of a traffic accident which occurred on September 28, 1992, in Fayetteville, Arkansas, in which a school bus driven by appellee Tuck struck the front of a car driven by Dennis Little as the bus was attempting to negotiate a left turn. Photographs revealed that the accident was relatively minor, and that the damage was confined to the front end of the driver’s side of the car. Appellant Anselmo was a passenger in Litde’s car. Testimony from both sides agreed on the basic facts of the accident, differing only on the exact location of Little’s car and whether the accident was the proximate cause of Anselmo’s injuries. Anselmo and Little testified that the car was behind the stop sign at the intersection, while Tuck testified that the car was sitting beyond the stop sign, just inside the intersection, when the impact occurred. Anselmo testified that he suffered neck and foot injuries as a result of the impact of the accident. The proximate cause of Anselmo’s injuries was hody contested at trial.

The officer at the scene of the accident testified that immediately upon reaching the scene of the accident he inquired whether anyone had been hurt, and that no one involved indicated any injury. The officer further stated that he did not observe Anselmo limping in any way.

Dennis Little testified that he observed Anselmo limping “a little bit” at the accident scene, and that Anselmo said he hit his foot and that it hurt. Litde further testified that because Anselmo was concerned about whether they could drive the car away from the scene, Anselmo took it upon himself to walk one and a half to two blocks to retrieve his car. Testimony later revealed that Little’s car was in fact driven away from the scene. No evidence was elicited from Little concerning the condition of Anselmo’s neck at the accident scene. Little stated that it would cost approximately $3,000.00 to repair the damage to the car, but that a custom paint job was included in the price.

Anselmo testified that the impact of the accident was “pretty big,” and that as a result, he was thrown into the dash. Anselmo stated that it was the combination of being thrown into the car’s dash and bracing himself with his foot that caused him to jam his toe on the car’s dash. Anselmo admitted that he did not think much about the injury at the time, and that he was not “hugely limping” at the scene. Anselmo stated that the next morning his neck felt stiff and he had trouble turning his head either direction. Anselmo stated that he saw several physicians concerning his neck injury, and that he had been prescribed physical therapy and some pain medication. Anselmo stated that because of the injury to his foot he had an operation which left him immobile and required six weeks of recovery. Anselmo testified that sometime after the accident and his various medical treatments he began experiencing pain in his left arm, his left eye, his groin area, and the small of his back. He concluded his testimony by listing all the activities (such as hiking, jogging, and cycling) he used to be able to engage in before the accident, and indicated that he could no longer enjoy these recreations.

On cross-examination, Anselmo admitted that he had not actually been thrown into the dash on impact, but that he was thrown forward and his foot hit the dash. Anselmo stated that he had not been wearing his seat belt at the time of the accident. Anselmo also conceded that there was no damage to the right side of the car, the side where he was seated.

Two doctors testified (via depositions) on behalf of Anselmo. Dr. Paul Doty, an orthopedic surgeon, testified that he treated Anselmo for neck pain. Dr. Doty stated that he diagnosed Anselmo as having a musculoligamentous injury of the neck, which meant that there was no fracture to the bone. Dr. Doty stated that there is rarely any objective manner to verify this type of injury, but that an x-ray would show some separation of bones if the ligament injury is so severe to cause spinal instability. Dr..Doty testified that that type of severe injury was not present in Anselmo. Dr. Doty admitted on cross-examination that his diagnosis of Anselmo’s injury was based upon Anselmo’s subjective claims of pain and the patient history taken from Anselmo.

Dr. Steven Watson, a podiatrist, testified that when he first examined Anselmo, he was complaining of pain in his left foot in the heel and forefoot area. Dr. Watson stated that an x-ray of Anselmo’s foot revealed some degenerative arthritic changes of the joint of the first metatarsal, some osteophytes in and around the joint, as well as a loose piece in and around the joint. Dr. Watson initially prescribed a treatment consisting of injections of anti-inflammatory medication, contrast soaks, elevation of the foot, no physical activity, and jogging shoes for support. In January 1994, Dr. Watson discussed with Anselmo an elective surgical procedure for his foot. Dr. Watson stated that Anselmo elected to undergo surgery, and that the surgery was performed in February 1994. Dr. Watson stated that Anselmo’s injuries were not caused by the trauma of the traffic accident, but that the trauma had aggravated the arthritic joint.

On cross-examination, Dr. Watson conceded that the only indication he had of a trauma caused by the traffic accident in question was from Anselmo himself. Dr. Watson stated that the problems he diagnosed in Anselmo’s joint are not conditions which occur within a short period of time, and that activity such as running or jogging is particularly harmful to that joint. Dr. Watson stated that the conditions of Anselmo’s joint could not have occurred in the short time since the traffic accident.

Before resting his case, Anselmo presented testimony from three additional lay witnesses, none of which had any first-hand knowledge of the accident or the cause of Anselmo’s injuries. The defense called only one witness — appellee Charles Tuck. Tuck testified that immediately after the accident occurred, he stopped the bus and checked to see if anyone was hurt. Tuck stated that he talked to Anselmo and that Anselmo stated he did not think he was hurt. Tuck stated that he observed Anselmo walking around at the scene and that Anselmo did not appear to have a limp.

SUBSTANTIAL EVIDENCE / JUDGMENT NOTWITHSTANDING THE VERDICT

Anselmo argues that there was not substantial evidence to support the verdict, and that the trial court erred in denying his motion for judgment notwithstanding the verdict. In support of his arguments, Anselmo asserts the evidence showed that he and Little did nothing to contribute to the accident and that Tuck’s improper left turn resulted in the bus striking Little’s car in the car’s own lane of travel. While this supposition may be true, Anselmo fails to argue or otherwise demonstrate that Tuck’s actions on that date were the proximate cause of his injuries. Because there was substantial evidence to support the jury’s verdict in favor of Tuck, we conclude that the trial court did not err in denying judgment notwithstanding the verdict.

This court has consistently held that a trial court may enter a judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and the moving party is entitled to a judgment as a matter of law. See, e.g., Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992); Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). The trial court may not substitute its view of the case for that of the jury, and the jury’s verdict must be clearly against the preponderance of the evidence in order to be set aside. McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996). On appeal from a denial of judgment notwithstanding the verdict, this court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Dr. Pepper Bottling Co., 311 Ark. 136, 842 S.W.2d 37. Whether there is substantial evidence to support the jury’s verdict is the standard of review for the denial of judgment notwithstanding the verdict. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996).

Substantial evidence is that evidence which is beyond mere suspicion or conjecture and which is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion of the matter one way or another. Williams v. O’Neal Ford, Inc., 282 Ark. 362, 668 S.W.2d 545 (1984). In considering sufficiency of the evidence on appeal, we will only consider evidence favorable to the appellee together with all its reasonable inferences. Dedman, 293 Ark. 571, 739 S.W.2d 685. In reviewing the evidence, the weight and value to be given the testimony of the witnesses lies within the exclusive province of the jury. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

In the present case, Anselmo’s complaint alleged a cause of action against Tuck for negligence. The burden of proof is always on the party asserting negligence, and negligence is never presumed. Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). To make a prima facie case of negligence, a plaintiff must prove that he sustained damages, that the defendant was negligent, and that such negligence was the proximate cause of the damages. Mason v. Jackson, 323 Ark. 252, 914 S.W.2d 728 (1996); Morehart, 322 Ark. 290, 908 S.W.2d 331. It is the third prong of this test that is at issue here, as Anselmo’s proof as to proximate cause of his injuries was tenuous at best.

We have defined proximate cause as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Craig v. Traylor, 323 Ark. 363, 370, 915 S.W.2d 257, 260 (1996), (quoting Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 796, 888 S.W.2d 303, 305 (1994)). Proximate cause is generally a question for the jury, becoming a question of law only if reasonable minds could not differ. Craig, 323 Ark. 363, 915 S.W.2d 257. Based on the testimony at trial, reasonable minds could easily differ as to whether Tuck’s actions caused Anselmo’s injuries and, furthermore, as to whether the injuries even arose during the accident.

The officer who investigated the accident stated that Anselmo did not indicate to him that he was injured and that he did not see Anselmo limping at the scene. Little, Anselmo’s friend, stated that Anselmo was limping a litde, but that Anselmo volunteered to walk nearly two blocks to retrieve his own car, even though the testimony revealed that there was no reason why Little’s car could not be driven from the scene. Anselmo’s own expert medical witnesses could not say that the injuries to his neck and foot were the result of the accident. In fact, Dr. Doty stated that his diagnosis of Anselmo’s neck injury was entirely subjective, based only on Anselmo’s claims of pain. Dr. Watson similarly testified that as far as an aggravation of the degenerative arthritis in Anselmo’s foot was concerned, he had only Anselmo’s word that the condition was aggravated by a trauma such as the impact of an automobile accident. Dr. Watson did state with certainty, however, that Anselmo’s foot condition could not have been caused by any accident and that the surgery he underwent was an elective procedure.

In short, Anselmo’s entire claim that he suffered injuries from the impact of what was revealed to be a minor accident was based solely on his testimony and credibility. As it is within the province of the jury to determine the weight and value of the witnesses’ testimony, Rathbun, 315 Ark. 264, 866 S.W.2d 403 (1993), we will not attempt to second guess its determinations. Suffice it to say that based on all of the testimony heard by the jury, we cannot say that its verdict was based on mere suspicion or conjecture. Because Anselmo did not meet his burden of proof concerning the proximate cause of his injuries, we conclude there was substantial evidence to support the verdict in favor of the appellee Tuck. For that reason we hold that the trial court did not err in denying Anselmo’s motion for judgment notwithstanding the verdict.

Affirmed.

Dudley, J., not participating.


author: Donald L. Corbin, Justice.

text:
    LAKEVIEW COUNTRY CLUB, INC. and Don Parker v. SUPERIOR PRODUCTS and Innovative Coating Products
    95-170
    926 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered July 1, 1996
    [Petition for rehearing denied September 9, 1996.]

      Tona M. DeMers, for appellants.

      James W. Tilley, for appellees.
   Donald L. Corbin, Justice.

Appellants, Don Parker and Lake-view Country Club, Incorporated, appeal a judgment of the Pulaski County Circuit Court dismissing with prejudice their claims against separate appellees, Superior Products, Innovative Coating Products, and Don Muse, arising from the application of a coating product to appellants’ swimming pool. Appellants raise two points for reversal of the judgment. The court of appeals certified this case to us as one involving a question about the law of torts. Ark. Sup. Ct. R. l-2(a)(16), and (d)(1). We find no merit to the appeal and affirm.

The judgment from which appellants appeal states that after appellants had rested their case as plaintiffs, the trial court granted motions for directed verdicts to separate appellees, Superior Products, the alleged manufacturer of the coating product at issue, and Innovative Coating Products, the alleged supplier of the coating product. The judgment also states that appellants’ cause of action against appellee Don Muse was then submitted to the jury, which returned a verdict for Muse.

Appellants’ entire case at trial consisted of only two witnesses: Appellant Don Parker, lessee-owner and manager of appellant Lakeview Country Club, and Stephen G. Littleton, a member of Lakeview Country Club who repaired the pump on the swimming pool. After the trial court granted the directed verdicts, appellee Muse did not present any evidence. Thus, Parker and Litdeton were the only witnesses in this case. We relate their testimonies in detail to illustrate the total failure of proof in this case.

Appellant Parker testified to the following. He leased appellant Lakeview Country Club in July 1991 and later became the current owner of the club. His intention to repair the swimming pool became known to appellee Muse. Appellee Muse was a country club member who told Parker that he “had the best product in the world” to coat the pool with, that the product had been used on space shuttles, and that the product could be used on the deck around the pool because it would not get hot from the sun. Appellee Muse supplied the coating product to appellants. Appellants paid appellee Muse $4,603.75 for the product, and appellee Muse supervised other members of the club who applied the coating.

According to appellant Parker, the following facts occurred after the coating was applied. The pool sat empty for two or three weeks, then the coating began to crack and peel. Appellee Muse went to Kansas City to obtain additional product and applied it to the pool. After the pool was filled with water, the coating again cracked and peeled. Some of the persons who swam in the pool cut their feet on the broken patches. Use of the pool by members declined. Appellant Parker talked with J.E. Pritchett of Superior Products in Kansas. Pritchett sent some people to examine and test the chips. Pritchett then told appellant Parker that the reason the coating chipped was because the pool had previously been coated with a latex base and his product would not stick to a latex base. There was no warning or instruction on the label of the container concerning the fact that the product would not adhere to a latex base. Likewise, there were no instructions provided by appellee Muse stating not to apply the product over latex paint. No one from Superior Products or Innovative Coating Products, including appellee Muse, informed appellants that the coating should not be applied over a latex paint, nor did anyone inquire as to what had been previously applied to the pool. Appellee Mr. Muse portrayed himself as an expert and professional in this field. After the coating chipped, membership dues decreased by $3,000.00 per month.

Mr. Littleton testified that the company he worked for made repairs totaling $308.59 to the pump. He stated that the repairs were needed because pieces of the chipped coating had become lodged in the pump, which prevented the pump from creating a vacuum to pull the water through the filter. Mr. Littleton informed appellants that the problem with the pump would be ongoing as long as there was foreign material in the water coming through the filter system. Mr. Littleton also stated that, as a club member, he did not want his family swimming in the pool because he was concerned about them getting cut.

At the close of appellants’ case, appellee Superior Products moved for directed verdict on the bases that appellants had not proven that the product was defective, that the product was rendered unreasonably unsafe because of a defect, and that any defect was the proximate cause of their injuries. The trial court granted the motion, stating that there was no evidence that appellee Mr. Muse represented appellee Superior Products, that appellee Superior Products was the manufacturer of the coating product, and that the product was defective. In short, the trial court stated, “I see just a complete lack of evidence to support the claim against Superior and I will direct a verdict for Superior[.]” As to the other appellees, Muse and Innovative Coating Products, the trial court stated it would not direct a verdict for appellee Muse. However, because the trial court found that there was no proof of any connection between Muse and Innovative Coating Products, it directed a verdict for appellee Innovative Coating Products. This appeal is from the direction of these two verdicts, the essence of the appeal being that the entire case should have been submitted to the jury.

In reviewing an order granting a motion for directed verdict, we view the evidence most favorably to the party against whom the verdict was directed. Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985). If any substantial evidence exists that tends to establish an issue in favor of that party, it is error for the trial court to direct a verdict and take the case from the jury. Id.

I. SUPERIOR PRODUCTS

Appellants’ first argument for reversal of the judgment is that the trial court erred in directing a verdict for Superior Products on the claims of strict liability, breach of the implied warranty of merchantability, and breach of the duties to instruct and warn. We consider each claim separately.

A. STRICT LIABILITY

Appellants argue their claims for strict liability should have been submitted to the jury because they proved Superior Products was the manufacturer by way of a photograph showing a container of the product bearing a label with the name “Superior Products International II.” This photograph was admitted during appellant Parker’s testimony, wherein he identified the container as the one containing the product used on his pool. The label on the container states in its entirety:

Superior Products International II

Product:

#ME-0508 Light Blue

TOTAL-SEAL

Semi-Gloss Epoxy Coating

*BASE

WARNING!

FLAMMABLE LIQUID!

Contains Ketone, and Aromatic Solvents

Manufactured for Superior Products Inti. II

Salinas, KS Batch #051492

Mix Ratio (by Volume):

1 part #913/53 *CURING AGENT

4 parts #ME-0508 *BASE

Induction Period: 15 minutes

Pot Life: 8+ hours @ 75 F

Appellants also rely on that portion of appellant Parker’s testimony relating his conversations with Pritchett concerning Pritchett’s explanation for the reason the coating chipped. Finally, appellants rely on appellant Parker’s testimony that some of the persons who swam in the pool cut their feet on the chips and on Littleton’s testimony that the repairs to the pump were required because pieces of the coating product had lodged in the pump.

Appellants’ arguments with respect to strict liability are wholly without merit. Granted, the evidence relied on by appellants establishes that the product did not adhere to the pool because it was applied over a latex base and that it caused injury to some people’s feet. However, this is not evidence that the product was defective. As appellees point out, if this evidence proves anything, it proves only that the product was misused.

Proof that the product was defective is an essential element of a cause of action based on strict liability. Ark. Code Ann. § 4-86-102(a)(2) (Repl. 1966); Higgins, 287 Ark. 390, 699 S.W.2d 741. However, proof of a specific defect is not required when common experience teaches that the accident or damage would not have occurred in the absence of a defect. Id. Here, we cannot say that the coating would not have chipped in the absence of a defect because, as the trial court stated, “there [could] be fifty reasons why paint peels [.]” A couple of reasons that come to mind are misuse and improper application. Thus, proof of a defect was required in this case.

Given the absence of any proof that the product was defective, we cannot say the trial court erred in directing a verdict for appellee Superior Products on the strict liability claim. Further, given the absence of proof of defect, we need not determine whether the remaining elements of liability were established.

B. IMPLIED WARRANTY OF MERCHANTABILITY

To sustain a claim for breach of warranty of merchantability, a plaintiff must prove that he sustained damages, that the product was not fit for its ordinary purpose, that the unfitness was the proximate cause of his damages, and that he is someone reasonably expected to use the product. E.I. DuPont de Nemours and Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983). We dispose of this argument summarily because there was absolutely no proof whatsoever of the ordinary purpose of this product. On the record before us, we cannot determine whether the purpose of the product was for swimming pools or space shutdes. Moreover, appellants do not even allege what they claim the ordinary purpose of this product to be. Without this proof, we simply cannot determine whether there was any breach of the warranty of merchantability.

Even assuming, as appellees state in their brief, that the ordinary purpose of this product was to coat swimming pools, there was no proof that the product was not fit for that purpose. Again, there was only proof that the product cracked and peeled from appellants’ swimming pool which may indicate a problem with the product’s application. Thus, we cannot say the trial court erred in directing a verdict for Superior Products.

C. DUTIES TO WARN AND INSTRUCT

Essentially, appellants contend this product should have been accompanied by some warning or instruction not to apply it over chlorinated rubber or latex paint. Appellants merely allege that the duties to warn or instruct existed in this case. They do not cite any authority to support this allegation, nor do they cite authority stating under what facts and circumstances these duties arise. We will not do appellants’ research for them. Forrest v. Ford, 324 Ark. 27, 918 S.W.2d 162 (1996). The question of what duty is owed is always a question of law. First Commercial Trust Co. v. Lorcin Eng’g, Inc., 321 Ark. 210, 900 S.W.2d 202 (1995). In this case, the trial court never determined that appellees owed appellants a duty to warn or instruct. Thus, there is no ruling for us to review even if we had been cited to applicable law.

Appellants do cite authority for the proposition that the adequacy of a warning label is generally a question for the jury, Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992). However, according to appellant Parker’s testimony, there were no warnings or instructions that accompanied this product. Thus, there were no labels or instructions for the jury to determine the adequacy of, and appellants’ reliance on Bushong is misplaced.

We conclude there was no substantial evidence tending to establish an issue in favor of appellants. Accordingly, we affirm the judgment directing a verdict for appellee Superior Products.

II. INNOVATIVE COATING PRODUCTS

Appellants’ second argument for reversal is that the trial court erred in directing a verdict for appellee Innovative Coating Products on their claims of strict liability, breach of warranty of fitness for a particular purpose, and breach of warranty of merchantability. The trial court directed the verdict for appellee Innovative Coating Products because appellants did not offer any evidence that appellee Muse owned appellee Innovative Coating Products or that Muse’s conduct was imputed to Innovative Coating Products. In defense of the motion, appellants stated that Muse admitted ownership of Innovative Coating Products in the answer he filed on behalf of both himself and Innovative Coating Products. The trial court stated that such an admission could not be considered as evidence.

While we are sympathetic to the essence of appellants’ argument, which is that an admission by a party in an answer need not be proven by other evidence in order to create a fact question, see, e.g., Twin City Corp. v. Riggins, 278 Ark. 411, 646 S.W.2d 10 (1983), we cannot conclude the trial court erred in this respect because the abstract does not indicate that Muse made such an admission in his answer. It is well established that our review on appeal is limited to the record as abstracted in the briefs, not upon one transcript, because there are seven judges involved in our decision. Kearney v. Committee on Professional Conduct, 320 Ark. 581, 897 S.W.2d 573 (1995). On this record as abstracted, there is no evidence of any connection between Muse and appellee Innovative Coating Products. In addition, this record as abstracted does not establish that Innovative Coating Products was the supplier of the product at issue. Thus, we cannot conclude the trial court erred in directing a verdict for appellee Innovative Coating Products.

Given the lack of proof concerning the involvement of appellee Innovative Coating Products in this case, we would only be speculating if we attempted to review appellants’ claims of strict liability, breach of warranty of merchantability, and breach of warranty of fitness for a particular purpose. We will not so speculate. Therefore, we cannot conclude the trial court erred in directing a verdict for appellee Innovative Coating Products.

In summary, appellants failed to prove their case, and the trial court did not err in directing verdicts for Superior Products and Innovative Coating Products. Appellants do not challenge the jury’s verdict in favor of appellee Muse. Accordingly, the judgment is affirmed.

Dudley, J., not participating.


author: ROBERT L. Brown, Justice. Tom GLAZE, Justice,

text:
    Barbara ROGERS v. TUDOR INSURANCE COMPANY
    96-177
    925 S.W.2d 395
    Supreme Court of Arkansas
    Opinion delivered July 1, 1996

      Karr & Hutchinson, by: W. Asa Hutchinson, for appellant.

      Wright, Linásey & Jennings, by: Harry S. Hurst, Jr., for appellee.
   ROBERT L. Brown, Justice.

Two points are raised in this appeal. The first is one of jurisdiction and concerns whether appellant Barbara Rogers effected her appeal in timely fashion. We believe that she did, and we deny the motion to dismiss by appellee Tudor Insurance Company. The second point is raised by Rogers and concerns alleged error by the trial court in granting summary judgment in favor of Tudor Insurance on the issue of whether the liability coverage carried by Tudor Insurance permitted a direct action against that carrier. We conclude that the trial court did err, and we reverse the judgment and remand the matter for trial.

On June 29, 1995, Rogers sued Tudor Insurance as the insurance carrier for PEOPL, Inc., a cooperative nonprofit corporation known as Personal Empowerment of the Psychiatrically Labeled, Inc. (PEOPL). The suit was brought under the Direct Action statute, which is codified at Ark. Code Ann. § 23-79-210 (Repl. 1992). The complaint asserted that Rogers was employed by PEOPL from February of 1994 through January 21, 1995. She received a letter of termination dated January 21, 1995, and signed by PEOPL’s president and treasurer. Prior to that letter, she alleged that she had no knowledge of any problems with her employment. She further asserted that the letter implied financial irregularities on her part but did not invite her to present a response to any charges, which was in violation of the organization’s rules.

As a result of her termination, Rogers claimed that she was subjected to public embarrassment because the agents, directors, and employees of PEOPL made public comments “about alleged irregularities and financial misdealings on the part of the Plaintiff.” According to her complaint, the stories were reported in the Arkansas Democrat-Gazette newspaper and on television broadcasts, and the public allegations and unfounded stories damaged her reputation. She sought to recover from Tudor Insurance for the negligence of the “officers, directors and agents” of PEOPL as well as for an intentional infliction of emotional distress. She further claimed a breach of her employment contract.

On August 3, 1995, Tudor Insurance filed a motion to dismiss under Ark. R. Civ. P. 12(b)(6) for failure to state facts upon which relief could be granted. In that motion, Tudor Insurance argued that the Direct Action statute was inapplicable to the facts as set forth in the complaint. According to the carrier, the statute allows direct actions against the insurer of a non-profit entity and does not authorize direct actions against carriers which provide coverage for officers and directors of nonprofit organizations. Thus, because PEOPL was not insured, Tudor Insurance maintained that a direct action could not survive.

The trial court treated the motion as one for summary judgment and on October 13, 1995, it entered its order of dismissal. Rogers then filed her notice of appeal on November 13, 1995. Her notice of appeal, however, did not designate the record on appeal or state that a transcript of testimony had been ordered. Tudor Insurance filed a motion to dismiss the appeal in the trial court on grounds that Rogers’s notice of appeal was ineffective. On November 27, 1995, which was two weeks after the notice of appeal was filed, Rogers filed a “Designation of Record on Appeal.” In that filing, she stated that no transcript was ordered because no testimony was taken and the appeal was only based on a record which included the pleadings, motions, and order on file with the circuit clerk. In an order entered on January 3, 1996, the trial court denied the motion to dismiss for lack of jurisdiction.

I. Notice of Appeal

We first address Tudor Insurance’s contention that Rogers’s notice of appeal is defective for her failure to designate the record and order a transcript as required by Ark. R. App. P. 3(e). As a corollary point, Tudor Insurance notes that when the Designation of Record was filed, it was outside the 30-day period for filing the notice of appeal and consequently was ineffective.

Rule 3(e) of the Rules of Appellate Procedure states that a notice of appeal:

[SJhall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript, or specific portions thereof, have been ordered by the appellant.

Tudor Insurance concedes that the November 13, 1995 notice of appeal does name the parties and the order appealed from, but the carrier contends that the notice was fatally deficient nonetheless because of its omissions relating to the transcript and record. Rogers, on the other hand, argues that there was substantial compliance with Appellate Rule 3(e) because the record in this case was obvious and, in any event, a Designation of Record was filed, albeit two weeks after the notice of appeal.

This court has held that “[t]he filing of a notice of appeal is jurisdictional but irregularities in the other procedural steps . . . are merely grounds for such action as this court deems appropriate.” Brady v. Alken, Inc., 273 Ark. 147, 151, 617 S.W.2d 358, 360 (1981), quoting Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709 (1970). The procedural steps outlined in Appellate Rule 3(e) require only substantial compliance, provided that the appellee has not been prejudiced by the failure to comply strictly with the rule. Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1982).

For example, in Hudson v. Hudson, the appellant filed a timely notice of appeal but failed to include a statement that the transcript had been ordered. We recognized the appellant’s responsibility in this regard and held that because this rule was totally ignored, the appeal must be dismissed. Flowever, in Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), appellant’s notice of appeal did contain a statement that the transcript had been ordered. Nevertheless, there was a misunderstanding between appellant’s counsel and the court reporter about whether the transcript had been requested. Because the attorney had not totally ignored Rule 3(e), we held that there was substantial compliance with the rule. Our holding in Carpenter further turned on the absence of any prejudice to the appellee even though there was a minor delay in ordering the transcript.

There is, too, a line of cases where this court has examined situations where language was omitted from the notice of appeal about the designation of the record even though the requirements of the rule were actually met. This court has held that it was not fatal to an appeal when the notice of appeal did not state that the transcript had been ordered, but when in actuality it had been ordered. See Phillips v. LaValle, 293 Ark. 364, 737 S.W.2d 652 (1987); Wise v. Barron, 280 Ark. 202, 655 S.W.2d 446 (1983); see also Johnson v. Carpenter, supra. In these cases, we also hinged our holding on the fact that there had been substantial compliance with the rule. We observed that the purpose of the rule had not been frustrated and that the appellee had not been prejudiced by any delay. On the other hand, both this court and the Court of Appeals have held that there is no substantial compliance when the transcript is not actually ordered or when the notice of appeal declares that the transcript has been ordered when, in fact, it has not been. See DeViney v. State, 299 Ark. 471, 772 S.W.2d 607 (1989); McElroy v. American Medical Int’l, Inc., 297 Ark. 527, 763 S.W.2d 89 (1989); Daffin v. Seymore, 14 Ark. App. 163, 685 S.W.2d 539 (1985); Hudson v. Hudson, supra.

The case before us is most closely akin to Wise v. Barron, supra, and to Phillips v. LaValle, supra, because we discern no intent on Rogers’s part to disregard Rule 3(e). Moreover, there was no prejudice to Tudor Insurance occasioned by the failure to designate the record or to state that the transcript had been ordered within the 30-day period. The absence of prejudice, of course, does not automatically determine the substantial-compliance question. But here, the Designation of the Record, which designated the pleadings, motions, and order, was filed two weeks after the notice of appeal. Under these circumstances, where the appeal was from an order of summary judgment and where no testimony was involved, we hold that there was substantial compliance with Ark. R. App. P. 3(e). The motion to dismiss the appeal is denied.

II. Direct Action Statute

We turn then to Rogers’s sole point on appeal which is that the trial court misconstrued the Direct Action statute, Ark. Code Ann. § 23-79-210 (Repl. 1992). We note initially that although Tudor Insurance moved to dismiss the case under Ark. R. Civ. P. 12(b)(6), the trial court treated the motion as one for summary judgment. This was correct because the court made its decision based in part on the language of the insurance policy which was attached to Tudor Insurance’s reply to its motion to dismiss. See Ark. R. Civ. P. 12(b) and (c); see also Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26, 888 S.W.2d 657 (1994); Amalgamated Clothing & Textile Workers Int’l Union v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994). As a consequence, we review the order as one for summary judgment though it is styled “Order of Dismissal.”

The Direct Action statute reads in pertinent part:
(a)(1) When liability insurance is carried by any cooperative nonprofit corporation, association, or organization, . . . and if any person, firm, or corporation suffers injury or damage to person or property on account of the negligence or wrongful conduct of the organization, association, municipality or subdivision, its servants, agents, or employees acting within the scope of their employment or agency, then the person, firm, or corporation so injured or damaged shall have a direct cause of action against the insurer with which the liability insurance is carried to the extent of the amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy.
(2) The insurer shall be directly liable to the injured person, firm, or corporation for damages to the extent of the coverage in the liability insurance policy, and the plaintiff may proceed directly against the insurer regardless of the fact that the actual tortfeasor may not be sued under the laws of the state.

Ark. Code Ann. § 23-79-210 (Repl. 1992). (Emphasis added.)

Tudor Insurance contended, and the trial court agreed, that the Direct Action statute was inapplicable in this case because its liability policy covers wrongful acts of the officers and directors of PEOPL and not the wrongful acts of PEOPL itself. Rogers attached the Policy Declarations to her complaint to show that the liability policy was issued to PEOPL. However, the policy language substantiates the fact that the officers and directors are the named insureds under the policy and not the corporation:

DIRECTORS AND OFFICERS LIABILITY
The Insurer shall pay the Loss of each and every Director or Officer (hereinafter called the Insureds) arising from any claim first made against the Insureds and reported to the Insurer during the Policy Period by reason of any Wrongful Act.
COMPANY REIMBURSEMENT
The Insurer shall reimburse the Company for Loss arising from any claim first made against the Insureds and reported to the Insurer during the Policy Period by reason of any Wrongful Act but only when and to the extent the Company has indemnified the Insureds for such Loss pursuant to law, statutory or common, or pursuant to Charter or By-Laws of the Company.

The insurance policy goes on to define “Insureds” as “all persons who were, now are, or shall be duly elected or appointed Directors or Officers of the Company named in item 1 of the Declarations.” The policy defines “Wrongful Act” as “any actual or alleged breach of duty, neglect, error, misstatement, misleading statement or omission by the Insureds solely in the discharge of their duties in their capacity as Directors or Officers of the Company. . . .”

Our analysis then must focus on the Direct Action statute itself. The basic rule of statutory interpretation to which all other interpretative guides must yield is to give effect to the intent of the General Assembly. Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994). In ascertaining legislative intent, we look to the statutory language, subject matter, object to be accomplished, purpose to be served, remedy provided, legislative history, and other appropriate matters. Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993).

Under the statute, the following elements must exist for it to apply:

(1) liability insurance must be carried by a nonprofit corporation;
(2) a person must suffer injury or damage on account of negligence or wrongful conduct; and
(3) the damage or injury must be on account of the negligence or wrongful conduct of “servants, agents, or employees” of the nonprofit corporation acting within the scope of their agency or employment.

In this case, there is no dispute over the fact that PEOPL “carried” the liability insurance on its officers and directors. The issue is whether the General Assembly equated “carrying” liability insurance with “covering” the corporation itself. We decline to give this statute such a narrow interpretation. Direct-action statutes are remedial in nature and are liberally construed for the benefit of injured parties and to effectuate the intended purposes. 12A Couch on Insurance 2d §§ 45:798, 45:800, pp. 455, 458 (1981).

Furthermore, we have no hesitancy in holding that the officers and directors of PEOPL fall within the broad category of “servants, agents, or employees” of the nonprofit corporation under § 23-79-210. Certainly, officers and directors who are also employees of the nonprofit corporation qualify. Our statutes further make it clear that the powers of a nonprofit corporation are exercised through its directors. Ark. Code Ann. § 4-33-801 (b) (Repl. 1996). In addition, it is the officers of a nonprofit corporation who perform the duties fixed by the corporation’s by-laws and prescribed by its directors. See generally Ark. Code Ann. § 4-27-841 (Repl. 1996). Officers and directors routinely act as agents for a corporation. See 3 Fletcher Cyc. Corp. § 839, p. 211 (1994). Indeed, a corporate entity can only act through its directors and officers. See Madison Bank & Trust v. First Nat’l Bank of Huntsville, 216 Ark. 405, 635 S.W.2d 268 (1982); see also Vogel v. Simmons First Nat’l Bank of Pine Bluff, 15 Ark. App. 69, 689 S.W.2d 576 (1985); Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972); see also 2 Fletcher Cyc. Corp. § 505, p. 601 (Perm. Ed.). In the case before us, it was the president and the treasurer of PEOPL who terminated Rogers, which gave rise to this litigation.

Finally, the Direct Action statute does not require that the nonprofit corporation itself be the named insured under the policy. It would have been an easy matter for the General Assembly to have required this. But the Direct Action statute only mandates that the coverage be carried by the nonprofit corporation. PEOPL did carry the coverage in this case, and the corporation’s officers and directors were the named insureds. We conclude that under these facts Tudor Insurance is subject to a direct cause of action.

Motion of Tudor Insurance Company to dismiss the appeal is denied. Reversed and remanded.

DUDLEY, J., not participating.

Glaze and Roaf, JJ., dissent.

Tom GLAZE, Justice,

dissenting. The majority court totally misconstrues the purpose' and intent of Arkansas’s direct-action statute, Ark. Code Ann. § 23-79-210(a)(l) (Repl. 1992). That statute recognizes that a nonprofit organization, like PEOPL here, is immune from tort liability caused by its agents or employees; but even so, that organization may still opt to obtain liability insurance to provide an avenue of redress to parties sustaining injuries caused by that tort-immune entity’s agents or employees. See Savage v. Spencer, 235 Ark. 946, 362 S.W.2d 668 (1962). In this respect, § 23-79-210(a)(l) provides in pertinent part that a nonprofit organization, not subject to tort liability, may carry liability insurance, so that any person who suffers injury on account of the wrongful conduct of the organization shall have a direct cause of action against the insurance company. Thus, even though the organization itself is immune from suit, the statute authorizes the organization’s insurer to be sued directly by the injured party.

Individual board members and officers of nonprofit organizations, on the other hand, have never been afforded tort immunity, and a person may sue a board member or officer individually for his or her negligence causing the plaintiff’s injury. Section 23-79-210(a)(1) neither expressly nor inferentially allows the injured person the right to file a direct action against any insurance company carrying tort liability coverage on any board member or officer of a nonprofit entity. See Savage, 235 Ark. at 950, 362 S.W.2d at 670.

Because board members and officers of nonprofit organizations can be individually sued, such organizations often feel obliged to arrange for director and officer liability and company reimbursement policies in order to protect those officials who agree, voluntarily usually, to serve or assist the organization. Here, PEOPL indisputably obtained such coverage from Tudor Insurance Company for its board and officer members and, in doing so, those individual members were the designated “insureds” under the policy. PEOPL, as an entity, was not designated or qualified as an insured.

In sum, under Arkansas law, a nonprofit organization is immune from tort liability, but if it obtains insurance naming itself as an insured to cover tort liability caused by its servants, agents and employees, a person injured by the organization’s agents or employees may bring his or her suit directly against the organization’s insurer. However, the direct-action statute is inapplicable to the nonprofit organization’s board members and officers who, under Arkansas law, can be sued in tort and who are named insureds in a liability policy. Simply put, § 23-79-210(a)(l), by its own plain language, in no way is intended to provide direct actions against insurers that issue policies covering insureds like board members and officers who may be found individually liable for tort liability.

For the reasons above, I would affirm the trial court’s decision.

Roaf, J., joins this dissent.

       Though PEOPL’s organization status is not entirely clear from the record, its by-laws do refer to it as a corporation.

       November 12, 1995, which was the thirtieth day from entry of judgment fell on a Sunday, thus allowing filing of the notice of appeal on the thirty-first day.

       In this respect, the statute covers the negligence of the organization or its servants, agents, or employees acting within the scope of their employment or agency with such organization.


author: ROBERT L. Brown, Justice.

text:
    Carl Stanley TURNER v. STATE of Arkansas
    CR 96-93
    926 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered July 1, 1996

      Jim Petty, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

Appellant Carl Stanley Turner was convicted of burglary and attempted rape. He was sentenced as a habitual offender to terms of 30 years and 50 years, to be served concurrendy. Fines of $10,000 for each charge were also assessed. He appeals on four grounds, none of which has merit. We affirm the judgment.

The facts surrounding the convictions are garnered from the jury trial. On Friday night, May 12, 1995, Alexandra Williams, a fourteen-year-old, was home alone with her mother, Deena Ann Darden, in Searcy. She testified at trial that she stayed up late watching television and then went to bed in her room. Early Saturday morning, she awoke and felt someone brushing against her. She first thought it was her boyfriend who was coming over at 10:00 that morning but then realized it was not. She turned and looked into the person’s face and recognized Carl Turner, whom she had known for about two years. In fact, he was her boyfriend’s uncle. When she first saw Turner, Alexandra noted that he was wearing boxer shorts and a jacket with a hood over his head. She also noticed that he smelled of alcoholic beverages. Alexandra testified that she looked at her clock and saw that it was six o’clock in the morning.

Alexandra then related that Turner put a knife to her throat and told her to be quiet. She was crying and she pleaded with Turner, but he threatened to cut her throat if she was not quiet. She testified that Turner told her to pull down her underwear so that he could have sex with her. After she said “no,” she stated that he pulled the knife away from her and started to get on top of her. As soon as the knife was far enough away from her throat, she jumped up and began screaming for her mother. Turner’s reaction was to get up and walk out. Alexandra rushed into the hallway to tell her mother what had happened. Turner was still in the house and was fumbling with the door knob, trying to get out.

Deena Darden testified that after she was awakened by her daughter’s screams, she ran to her daughter’s door, where Alexandra met her. Darden turned and saw a man trying to unlock the back door to get out but that he was not moving in a hurried fashion. Though he tried to hide his face, she ultimately recognized him as Carl Turner. Alexandra then told her, “Carl tried to rape me.” Darden ran to get her gun from her bedroom, and when she returned Turner was attempting to leave through her front door. He left, and Darden called 911. Police officers from the Searcy Police Department arrived a few minutes later.

The 911 tape was played for the jury. On cross-examination, Darden admitted that she had previously told Searcy police officers that the man she saw in her house was Carl Turner. She further testified that she told the 911 operator that “Polli Foo” (Turner’s street name) had come through her window, though that name could not be heard on the 911 tape.

The police report by Searcy Police Officer Bob O’Brien stated that Alexandra identified Turner by his voice but not that she identified him visually. It also stated that Alexandra had known Turner a long time. When Alexandra testified at trial that she recognized Turner’s face, Turner did not object to this testimony at that time. Rather, he waited until after the State had rested and his motion for directed verdict had been denied to raise the issue. He then moved for a mistrial based on the State’s failure to inform him that Alexandra had recognized Turner’s face. That motion was denied.

Turner’s defense was a partial alibi presented by several friends and his brother for his whereabouts during early Saturday morning. Turner himself took the stand and denied that he was the culprit. Before his cross-examination by the State, a hearing was held to address whether evidence of prior convictions for attempted sexual abuse in the first degree and burglary could be used against him for impeachment purposes under Arkansas Rule of Evidence 609. Counsel for Turner argued that the burglary and criminal attempt to commit sexual abuse were too prejudicial under Rule 609 because the burglary conviction mirrored the current charge before the jury, and the attempted sexual abuse conviction was unusable as a crime of a sexual nature. The trial court ruled that the prejudicial effect of the convictions was not enough to outweigh the probative effect of impeaching Turner through the use of those convictions. The court ordered the prosecuting attorney not to go into the substance of those convictions and agreed to give a cautionary instruction once the prior convictions came into evidence.

On cross-examination by the State, Turner admitted that he had prior convictions for burglary and felony'attempt to commit sexual abuse in the first degree, but he argued that in those cases the trial court had misled him. Immediately following that admission, the court instructed the jury to use this evidence only for the purpose of judging Turner’s credibility and not as evidence to determine his guilt.

Following the jury trial, the verdicts of guilty, and the sentences, Turner moved for a new trial on grounds that “he was prejudiced by evidence which was submitted against him which had not been furnished to him before trial despite his having filed [a motion for discovery].” He specifically complained that Officer O’Brien’s report showed only that Alexandra could identify his voice. It said nothing about the fact that she visually identified him. Turner expressly requested a hearing on the matter. The trial court denied the motion for new trial without a hearing and concluded that the State had not violated the applicable discovery rule, Ark. R. Crim. P. 17.1, because the rule does not require that a defendant be informed of all possible testimony a witness might give.

I. Rule 609

Turner first advances the argument that the trial court abused its discretion by allowing impeachment for the prior crimes of burglary and attempted sexual abuse. Rule 609 of the Arkansas Rules of Evidence permits the admission of certain convictions to attack the credibility of the witness. For those convictions to be available to impeach credibility, “the probative value of admitting this evidence [must outweigh] its prejudicial effect to a party or a witness....” Ark. R. Evid. 609 (a).

The State has a right to impeach the credibility of a witness with prior convictions under Rule 609. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988). But the trial court has considerable discretion in determining whether the probative value of prior convictions outweighs their prejudicial effect, and that decision will not be reversed absent an abuse of discretion. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994); Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992); Griffin v. State, 307 Ark. 537, 823 S.W.2d 446 (1992). The admissibility of the prior convictions must be decided on a case-by-case basis. Thomas v. State, supra; Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988). When the defendant chooses to testify, this court has consistendy permitted prior convictions to be used for impeachment even where those convictions are similar to the charge or charges before the trial court. See, e.g., Donald v. State, supra (burglary conviction used for aggravated robbery and burglary trial); Griffin v. State, supra (kidnapping, theft, and burglary convictions used in burglary and rape trial); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680, cert. denied 464 U.S. 865 (1983) (kidnapping conviction used to impeach in kidnapping trial).

Turner argues that his conviction must be reversed under Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), overruled on other grounds, George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991). In Jones, we reversed Jones’s conviction for sexual abuse in the first degree perpetrated against a nine-year-old boy. The allegations were that Jones threw the boy to the ground and forcibly attempted to have anal intercourse with him. Jones did not take the stand but had he done so, the trial court made it clear that it would have allowed the State to impeach Jones’s credibility with an earlier rape conviction, also involving a young boy. This court reversed the trial court’s decision. In doing so, we recognized that “sexual abuse of a child is a particularly shameful and outrageous crime,” and we held that the probative value of permitting impeachment with the prior rape conviction of a young boy had scant probative value as compared to a great potential for prejudice. We concluded that this reference to a prior conviction for the same crime would all but convict the defendant. However, in George v. State, supra, we overruled the Jones decision as it pertained to prior convictions used as evidence under Arkansas Rule of Evidence 404(b).

In later cases, this court has generally distinguished the Jones case on the basis that in Jones the crime charged and the prior conviction to be used for impeachment showed a unique perversion that would have unduly tainted the jury. Included in the analysis has been the fact that other, less prejudicial convictions were available for impeachment which did not qualify as crimes of unique perversion. See, e.g, Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995) (false imprisonment conviction permissible in rape trial); Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995) (sexual abuse conviction allowed in trial for cocaine possession with intent to sell and felon in possession of a firearm); Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984) (prior convictions for burglary, attempted rape, kidnapping, assault and battery, robbery and larceny could be used in trial for battery and robbery).

In the instant case, the proof at trial came from the testimony of Alexandra and her mother. There was no physical evidence introduced to link Turner to the crime, and Turner denied his participation in the crime altogether. Thus, his credibility was a central issue in the case. Viewed in that light, his prior convictions were extremely probative. We hold that the trial court did not abuse its discretion in ruling as it did on this point.

We further question the continued viability of the Jones exception to Rule 609 impeachment. We have overruled that decision, as already noted in this opinion, for purposes of Arkansas Rule of Evidence 404(b), where the issue was the admissibility of prior convictions by the State to prove motive, intent, lack of mistake, and so forth. To permit the State to introduce convictions for the rape of a child as probative evidence in its case-in-chief under the aegis of Rule 404(b), but to disallow the usage of these crimes for credibility purposes under Rule 609 seems largely inconsistent. We can perceive no justification for this dichotomy in treatment, and we can certainly appreciate the probative impact of these prior convictions on the credibility of the defendant. We overrule Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981).

II. Recusal

We turn next to the trial court’s decision not to recuse in this case, which Turner claims was error. We note at the outset that a judge is required to recuse from cases in which his impartiality might reasonably be questioned. Ark. Code of Judicial Conduct, Canon 3E(1). However, there is a presumption of impartiality, and the party seeking disqualification bears the burden of proving otherwise. Gentry v. State, 47 Ark. App. 117, 886 S.W.2d 885 (1994). The decision to recuse is within the trial court’s discretion, and it will not be reversed absent abuse. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. See Reel v. State, supra.

The facts argued to show partiality were that (1) the trial court, Judge Robert Edwards, when serving as prosecuting attorney, had prosecuted Turner in the 1970’s for a crime against another judge’s wife; and (2) Judge Edwards again prosecuted Turner in 1981 for theft and in 1982 for burglary. Turner further claims that Judge Edwards later sat on the State Board of Pardons and Paroles for the burglary crime and that he (Turner) has filed “numerous lawsuits” against the county. At the pretrial hearing on this issue, Turner admitted, however, that even though the “circuit court” had been named in his lawsuits, Judge Edwards had not been personally named, and there was no proof presented to show that such suits had actually been filed. Furthermore, Judge Edwards stated on the record that he did not participate in parole board decisions where he had been the prosecutor for the prison inmate to be reviewed. The judge also observed that more than ten years had passed since the crimes prosecuted.

We initially observe on this point that there was no showing by Turner that he was treated unfairly in the trial of this matter. In fact, in Turner’s reply brief his counsel admitted that Turner was treated fairly at trial. In addition to that fact, in Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994), we held that a trial judge need not recuse simply because that judge had previously prosecuted the defendant for a separate crime which was to be used for sentence enhancement purposes. We also agree with the judge that considerable time has passed since those earlier prosecutions. We perceive no basis for holding that the trial judge abused his discretion in not recusing under these facts.

III. Discovery Violations

Following entry of judgment, Turner moved for a new trial pursuant to Ark. R. Crim. P. 36.22, and alleged discovery violations. Rule 36.22 states that if a hearing is requested orfound to be necessary, a hearing date shall be designated. Here, a hearing was requested but the trial judge made his ruling in the absence of a. hearing. Because of this, Turner argues that he was denied the ability to examine Officer O’Brien on why Alexandra’s visual identification of Turner was omitted from his police report.

The State’s response is that a hearing was unnecessary, and we agree. There is, first, the fact that Turner did not object at the first opportunity to Alexandra’s testimony that she recognized Turner’s face during the attempted rape. We have held that objections to discovery violations must be made at first opportunity in order to be preserved. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). But it was also immaterial that Officer O’Brien omitted her visual identification of Turner from the report while including her voice identification. The fact that she could positively identify Turner was the critical point, and that fact was disclosed.

Turner argues that testimony taken at a posttrial hearing was needed to show improper motive on the part of the State in its failure to disclose, but there is no evidence to show noncompliance with Ark. R. Crim. P. 17.1. Simply put, there was no error committed by the trial court in its refusal to grant a hearing, because the hearing would have been superfluous. See Allred v. State, 310 Ark. 476, 837 S.W.2d 469 (1992). Finally, although Rule 36.22 states that a hearing is required when it is requested, the rule provides no sanction for when a hearing is not afforded a party. Certainly, a new trial is not contemplated under the terms of the rule for failure to hold a hearing.

As a corollary point, Turner argues that a mistrial for the discovery violation should have been declared. Declaration of a mistrial, of course, is a drastic remedy and is proper only when the error is beyond repair and cannot be corrected by any curative relief. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). In addition, the granting of a mistrial is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). In this case, the mistrial motion was not timely, as already noted. See Clark v. State, supra. Any objection should have been made during the testimony of Alexandra. Moreover, Turner’s counsel cross-examined both Alexandra and Officer O’Brien on her identification of Turner. Again, we discern no prejudice to Turner. He unquestionably knew that Alexandra had recognized him and would testify to that fact. A mistrial was clearly not warranted.

Affirmed.

Dudley, J., not participating.

       Turner actually had three prior felony convictions for attempt to commit sexual abuse, burglary, and theft, and he was sentenced as a habitual offender accordingly.

       This rule is now contained in Ark. R. Crim. P. 33.3.


author: PER CURIAM.

text:
    Johnny Austin BENTON v. STATE of Arkansas
    CR 96-145
    925 S.W.2d 401
    Supreme Court of Arkansas
    Opinion delivered July 1, 1996

      Edgar R. Thompson, Lonoke County Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior Appellate Advocate, for appellee.
   PER CURIAM.

In 1994 Johnny Austin Benton was found guilty of theft of property and sentenced as a habitual offender to twenty years imprisonment. The court of appeals affirmed. Benton v. State, 50 Ark. App. 90, 901 S.W.2d 858 (1995). The mandate of the appeals court was issued July 18, 1995.

On October 12, 1995, the trial court entered an order which dismissed a petition to reduce sentence pursuant to Ark. Code Ann. § 16-90-111 (Supp. 1995). Appellant Benton brings this appeal from that order.

Appellant concedes that he did not file the petition with the circuit clerk; instead, he “sent” the petition to the circuit judge who ruled on it. Apparently because the petition was never filed-of-record, the record does not contain a copy of it. Nevertheless, the abstract contained in the appellant’s brief includes an “Abstract of Stipulation” which consists of items that are not included in the record but which are included in the abstract. Among the items is a synopsis of the petition to reduce sentence pursuant to Ark. Code Ann. § 16-90-111. Appellant argues that the fact that he sent the petition to the judge constitutes substantial compliance with the requirement that a petition for postconviction relief be filed with the circuit clerk. We disagree and dismiss the appeal.

We first note that Ark. Code Ann. § 16-90-111 (Supp. 1995), the statute invoked by appellant, has been found to be in conflict with A.R.Cr.P. Rule 37, our postconviction remedy. We have held that Rule 37.2 (b) requires that all claims for postconviction relief from a sentence imposed by a circuit court must be raised under Rule 37. Taylor v. State, 324 Ark. 532, 922 S.W.2d 710 (1996). Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved in favor of our rules. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994).

With respect to whether the petition in this case was properly filed, the filing of a petition for postconviction relief with the circuit clerk is critical in that the date of the filing of such a petition determines whether the trial court has jurisdiction to consider the petition on the merits. Delivering an item to a circuit judge is not the equivalent of filing the item with the clerk for the purposes of determining whether an item is timely filed under Rule 37. See Thompson v. State, 280 Ark. 161, 655 S.W.2d 424 (1983); see also Grain v. State, 280 Ark. 161, 655 S.W.2d 425 (1983).

Where a judgment has been affirmed on appeal, A.R.Cr.P. Rule 37.2 (c) provides that a petition under the rule is untimely if not filed within sixty days of the date the mandate was issued upon affirmance. The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on a petition for postconviction relief that is not properly filed. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). As appellant did not file his petition for postconviction relief with the circuit clerk within the sixty-day period set by Rule 37 to file such a petition, the trial court did not have authority to consider it. See Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995).

Appeal dismissed.

Dudley, J., not participating.