author: David Newbern, Justice. Tom Glaze, Justice,

text:
    William MEINE v. STATE of Arkansas
    CR 91-188
    827 S.W.2d 151
    Supreme Court of Arkansas
    Opinion delivered April 6, 1992

      Ledbetter & Associates, Ltd., by: Thomas D. Ledbetter, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

William Meine, the appellant, was charged with rape on October 6,1987. He was tried by jury, convicted of the charge, and sentenced to 35 years imprisonment on January 31, 1991. He contends his right to a speedy trial was violated. We agree. The conviction is reversed and the case dismissed.

Meine was alleged to have raped his then 11-year-old stepdaughter. On July 31, 1987, the victim, accompanied by her boyfriend, David Hall, reported Meine had been forcing her to engage in sexual intercourse with him for four months. The victim was then referred for a gynecological exam to Dr. Shannon Card. Criminal investigator Kapsos interviewed Dr. Card on September 29,1987, and was informed that the victim was suffering from vaginitis, a bacterial infection, which was consistent with her having engaged in sexual activity.

On November 10,1987, Meine was found to be indigent, and counsel was appointed to represent him. An omnibus hearing was conducted on November 18,1987, and trial was set for March 10, 1988. On February 3, 1988, the Court continued the case on it’s own motion until June 1,1988. On June 1 trial was again reset by the Court for August 5, 1988. In it’s response to Meine’s later motion to dismiss, the State asserted the June 1 continuance was at its request due to the unavailability of an unnamed material witness. The case was again reset by the Court on July 11,1988, and scheduled for August 17, 1988. The State’s response attributed this continuance to docket congestion. The docket shows the case was continued on a State motion until October 5,1988, just one day short of the one year speedy trial period. The response to the motion to dismiss asserted this continuance was necessary due to the failure of service on a material witness, Dr. Card.

Subpoenas for witnesses for the August 17 trial setting were issued, but Dr. Card was not served. No explanation is offered for the failure to serve him.

On October 5, 1988, the State moved for continuance, asking that the trial be rescheduled for October 24, 1988. The motion stated that Dr. Card was a material witness, and that he had said on September 1,1988, that he wished to be released from his subpoena due to a schedule conflict. He put his request in writing on September 22, 1988, and on that date the State unilaterally released Dr. Card. The State’s motion also asserted that prior to releasing Dr. Card attempts were made to obtain a video-deposition, but due to schedule conflicts between the State and defense counsel, the deposition was not possible. No facts were stated in support of the asserted conflict. Meine’s counsel contends he objected to each of the requested continuances and has at all times stood ready for trial.

The motion for continuance contended the period from October 5 to October 24 should be excluded from the speedy trial period pursuant to Ark. R. Crim. P. 28.3(d)(1). Meine objected and asserted his speedy trial demand, but the Court overruled his objection and granted the State’s motion. The docket shows the case reset for October 31,1988, and notes that the time was not to be charged to the State. Meine’s counsel moved to dismiss on October 14. The motion was denied at a pretrial hearing on October 31.

The parties devote some of their arguments to the delay which occurred after October 31,1988, but we need not consider them because we find Meine was entitled to dismissal after the passage of 12 months from the date he was charged.

During a pretrial hearing on January 30, 1991, Meine sought to present evidence of other sexual activity by the victim to show that the accusations were fabricated to draw suspicion away from David Hall. The prosecutor responded by saying he did not deny the victim was sexually involved with David Hall. He insisted that it made no difference in view of witnesses who would testify they saw Meine and the victim engaged in sexual activity and that testimony about the victim’s relationship with Hall should be excluded under the rape shield law. Ark. Code Ann. § 16-42-101 (1987). In the course of that discussion, the Court asked if the State intended to introduce the vaginitis evidence. The prosecutor responded he did “not intend to call the doctor who made the examination as a witness, except rebuttal if necessary.” Dr. Card was not called as a witness.

The speedy trial rule

Meine was charged October 6, 1987. He was thus entitled, pursuant to Ark. R. Crim. P. 28.2 (a), to be brought to trial by October 6,1988. He clearly presents a prima facie case of violation of his right to a speedy trial provided in Ark. R. Crim. P. 28.1. The burden was thus upon the State to show the delay was the result of Meine’s conduct or otherwise legally justified. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Horn v. State, 294 Ark. 464, 743 S.W.2d 814 (1988); Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987).

The only possibility for concluding there was legal justification for the violation is found in Rule 28.3(d)(1) which provides:

The following periods shall be excluded in computing the time for trial:
* * *
The period of delay resulting from a continuance (calculated from the date the continuance is granted until the subsequent date contained in the order or docket entry granting the continuance) granted at the request of the prosecuting attorney, if:
(1) the continuance is granted because of the unavailability of evidence material to the state’s case, when due diligence has been exercised to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at a later date;
Due diligence

Meine refers to the fact that Dr. Card was not called as a witness by the prosecution. The fact that Dr. Card was not needed for the State’s case in chief is not argued as a direct basis for finding that his purportedly unavailable testimony was not “evidence material to the state’s case.” The argument is, in other words of Rule 28.3(d)(1), that passage of time due to a continuance should be charged to the State unless it can be shown that “due diligence has been exercised to obtain” the allegedly unavailable material evidence.

No continuances during the critical year were sought by the defense. Two periods of delay with respect to which we must examine the matter of due diligence were requested by the State. First the continuance of August 17, 1988, and then the one granted on October 5,1988. Both were granted on the basis of the unavailability of Dr. Card.

The record shows that Dr. Card was not summonsed for any of the trial settings prior to August 17,1988, and the summons for that setting was issued on August 11 but not served. The only service of summons was that which was issued on the day set for the trial, and that was not served until August 23, 1988. No explanation is offered for the complete failure to serve witnesses in a timely fashion for the August 17 trial date, and there is no indication that Dr. Card could not have appeared had he been timely served.

The cases which have looked at the State’s diligence with respect to obtaining the presence of witnesses have mostly been in connection with efforts to read preserved testimony into evidence in lieu of presenting the witness. The standard for those situations was established in Barber v. Page, 390 U.S. 719 (1968). A witness is not unavailable “unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial.” Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1970). The Satterfield case involved a witness in trade school in Kentucky and a sheriff who, upon ascertaining that he was in another state, abandoned any further effort to obtain the witness. We wrote:

We have combed the record in this case and have concluded that the efforts of the State to obtain the presence of witness Larry Dunn were far too feeble to constitute ‘good faith effort’. . . .
* * *
It is apparent from the circumstances that the State was put on notice before the pretrial date that Dunn was not in the jurisdiction; yet no effort was made to ascertain his whereabouts until a few days before the actual trial date. It was shown that Dunn’s people lived in the county, and since he was attending school, as opposed to being on a transient trip, it is just as logical that his address in Kentucky could have been obtained by simple inquiry.. . . Finally, we would note that earlier discovery of Dunn’s whereabouts would have made it practical to have instituted proceedings under . . . part of a uniform act for obtaining witnesses from without the State.

The same standard was utilized in Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991):

While a trial court has discretion in determining whether a witness is ‘unavailable’ that discretion is not unlimited. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). In this case no effort whatever was made to serve a subpoena on the state’s key witness at her Mississippi address which was readily available. There was no ‘good faith effort’ of which the Supreme Court wrote in Barber [citation omitted], and of which we wrote in Satterfield [citation omitted]. The trial court erred in finding the victim was unavailable in these circumstances.

In the speedy trial context the question of unavailability usually concerns the State’s assertion that the accused absented himself after arrest. A standard similar to that in the Barber case is utilized. In Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985), an accused was arrested and subsequently moved to her mother’s Stuttgart home. The mother posted bond and left her address on the bond release form. The municipal clerk forwarded documents to the Circuit Court but did not forward the bond release form. Notice was not sent to the Stuttgart address and the accused did not appear, prompting issuance of an alias warrant. A writ of prohibition was sought after the expiration of the speedy trial period. We granted the writ. We wrote, “[t]he State has a duty to make a diligent, good faith effort to bring an accused to trial. The failure of the State to check the available court records or otherwise demonstrate any diligence in locating the accused over a two and one half year period can not be excused”. In State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981), a delay attributable to the failure to follow through with the service of warrants led to dismissal of the charges at the trial level and affirmance by this court.

Turning to this case, lack of diligence on the part of the prosecution is clear. First, the failure to effectuate service for the August 17 trial is unexplained, in spite of the fact that the State was approaching the end of the speedy trial period. It was an identical lack of diligence which formed the basis for error in the Satterfield and State v. Washington cases. Next, the State’s obvious failure to inquire of Dr. Card to ascertain a good date prior to scheduling the trial for October 5 is akin to the failure to obtain the witness’s address in the Leshe case. Just as the address was readily available so was information concerning Dr. Card’s schedule.

Finally, releasing Dr. Card without first obtaining his deposition when the State had knowledge from at least September 1 that he was not able to attend the October 5 setting shows a lack of diligence, as there is nothing to support the State’s assertion that they could not obtain a time for taking a deposition. No setting was requested of the Court, and no notice of a deposition was presented to defense counsel. The burden on the State to show due diligence was not met.

Reversed and dismissed.

Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. This court holds the trial court abused its discretion in refusing to dismiss appellant’s case on speedy trial grounds, and does so because it concludes the state failed to show it exercised due diligence in bringing appellant to trial. Actually, the majority holds the state failed to make a “good faith effort” in obtaining Dr. Card’s presence as a witness and improperly using Card’s presence as a witness and improperly using Card’s unavailability as an excuse for unnecessary continuances. I disagree.

The majority court asserts the state should have done more to effectuate service of its subpoena for Dr. Card so as to ensure Card’s presence at the August 17,1988 trial setting. In support of its holding, the court cites Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991), wherein this court stated that, while a trial court has discretion in determining a witness is “unavailable,” that discretion is not unlimited. In Leshe, we stated no effort whatever was made to serve a subpoena on the state’s key witness at her Mississippi address, which was readily available, and therefore held the state made no “good faith effort” in obtaining the witness.

Here, about six days before the August 17 trial date, the state timely requested the circuit clerk to issue a subpoena for Dr. Card, but because the subpoena had not been duly served on Card before trial, the state promptly brought the matter to the trial court’s attention and asked for a continuance, which was granted until October 5,198 8. The state then on August 17,1988, and the defense on September 23, 1988, requested subpoenas for Dr. Card once again to obtain the doctor’s presence for the October 5th trial. Clearly, the state exercised its efforts in trying to obtain Card’s presence for the August 17th setting, but the majority requires more than the state’s having duly and timely requested a subpoena for Card. The majority opinion raises questions as to what must prosecutors do in these matters to show they have made a good faith effort in the presence of their witnesses.

In addition to Leshe, the majority court also cites the cases of Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985), and State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981), to support its position. Chandler, however, involved a drastically different situation where the state made no efforts in locating the accused for a two and one-half year period even though, during that period, the accused had resided at the same residence in Stuttgart, Arkansas, and that address appeared on the accused’s bond release form. In the Washington case, this court affirmed the trial court’s dismissal of the defendants’ case on speedy trial grounds, and there, the state requested no subpoena, nor was a subpoena in question. This court upheld the lower court’s ruling to dismiss because the sheriff had failed to notify the defendants to appear in court.

The majority court also criticizes the state’s failure to inquire of and obtain from Dr. Card a date Card could appear before scheduling the trial for October 5, 1988. As previously mentioned, appellant also subpoenaed Dr. Card for the October 5th date, so both the state and the appellant had to be concerned about Card’s appearance. The court should not be critical of the state’s inaction in this regard without assigning the same criticism to appellant. In my view, both parties sought Dr. Card as a material witness, and as happens, the doctor proved somewhat difficult to obtain his trial presence when it got closer to the trial date. In any event, if the appellant desired the doctor’s appearance, he could have sought enforcement of his subpoena, if he had any objection to a continuance.

For the reasons above, I dissent to the majority court’s reversal and dismissal of this case.

Hays, J., joins this dissent.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    James Edward RICHARDS v. STATE of Arkansas
    CR 91-221
    827 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered April 6, 1992

      Henry H. Boyce, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, James Richards, was charged with delivery of cocaine resulting from an incident in which he sold it to an undercover narcotics officer. He raised an alibi defense at trial but was convicted by a jury and sentenced to 40 years imprisonment and a $25,000 fine.

Following the announcement of the sentence and dismissal of the jury, the Circuit Judge stated that he did not have to follow the jury sentence. He increased the term of imprisonment to life and reduced the fine to $5,000.

While the Judge had authority to reduce the fine, we agree with Richards’ contention that the Judge was without authority to increase the term of imprisonment fixed by the jury; therefore, we modify the sentence and affirm.

1. Jury verdict and sentencing

The State concedes the Trial Court erred. Sentencing in Arkansas is entirely a matter of statute, and Ark. Code Ann. § 5-4-103 (1987) provides:

Sentencing — Role of jury and court.
(a) If a defendant is found guilty of an offense by a jury, the jury shall fix punishment as authorized by this chapter.

Other parts of the Statute permit a trial judge to set the sentence, but only under four enumerated circumstances, none of which applies to this case. As the Judge lacked statutory authority to increase the term of imprisonment, his action was unauthorized and illegal, and we must modify the sentence to imprisonment by reducing it to the 40-year term fixed by the jury.

Thu Trial Court was, however, authorized to reduce the fine. A judge may reduce the extent or duration of the punishment assessed by the jury if, in his or her opinion, the conviction is proper but the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted, as long as the punishment is not reduced below the limit prescribed by the law. Ark. Code Ann. § 16-90-107(e) (1987). The fine in this case was not reduced below the limit prescribed by law.

Richards asks that we remand the case for resentencing or reduce the sentence. The State asks that we reinstate the jury verdict, suggesting the Judge would not have reduced the fine if he had realized his lack of authority to increase the imprisonment part of the sentence. We find nothing of record to support that suggestion. The Judge said nothing about balancing or setting off the two elements of the sentence. With respect to reducing the fine he mentioned only his perception that Richards would be completely unable to pay it. We thus have no reason to reverse the fine portion of the sentence.

When an error has nothing to do with the issue of guilt or innocence and relates only to punishment, it may be corrected by reducing the sentence in lieu of reversing and remanding for a new trial. Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1970); Ark. Code Ann. § 16-67-325(a) (1987).

The sentence is reduced by modifying the term of imprisonment to the 40-year term fixed by the jury, the fine remains at $5000 as imposed by the Trial Court, and the conviction is affirmed as modified.


author: Robert L. Brown, Justice.

text:
    Larry W. LAWSON v. ST. FRANCIS COUNTY ELECTION COMMISSION, et al. Mary O. Brown v. St. Francis County Election Commission, et al.
    91-312
    827 S.W.2d 159
    Supreme Court of Arkansas
    Opinion delivered April 6, 1992
    [Rehearing denied May 11, 1992.]

      Sharpe & Beavers, by: Harold Sharpe, for appellants.

      Butler, Hickey & Long, by: Fletcher Long, Jr., for appellees.

      Glaze, J., would deny rehearing, but with opinion of clarification.

   Robert L. Brown, Justice.

This case concerns the validity of a local option wet/dry election for the City of Colt. The election was held on November 6, 1990, and the decision was against Colt’s remaining wet. Contests to the original election petitions and to the election itself were filed by appellants Lawson, Brown, and others, and the circuit court denied those petitions. In the case of the contest of appellant Brown, the court found that it was not timely filed. We affirm the circuit court’s decision.

On July 23, 1990, petitions were filed by a number of Colt residents requesting an election on whether alcoholic beverages should be sold in Colt. Formal verification of the signatures by the circulator, Lucy Gilbert, did not accompany all of the petitions. On October 4,1990, the St. Francis County Election Commission questioned the absence of the verifications, and the petition circulator signed a verification for those deficient pages and attached the verifications to those signature pages on that date. On October 15, 1990, appellant Lawson, who sold beer at his retail grocery store for off-premises consumption, filed a petition against the Election Commission contesting the sufficiency of the petitions and included in his petition a challenge to the sufficiency of the jurat of the circular. The Election Commission responded that the petitions substantially complied with the law.

The election was held on November 6, 1990, and the drys won. On November 13, 1990, the results were certified by the Election Commission and left in the St. Francis County Clerk’s office. The results were subsequently forwarded to the St. Francis County Judge, who signed an order approving the certification on November 29, 1990. This order was filed with the County Clerk on November 30, 1990.

On December 4,1990, Lawson amended his original petition to include allegations of invalid ballots and destruction of ballots cast in the November 6,1990, election. On December 14,1990, a second petition for an election contest was filed by appellant Brown and others, which included several allegations:

a. The absence of a sufficient jurat on several pages of the July 23, 1990, petitions.
b. The absence of certification that thirty percent of the qualified electors had signed the petitions for election.
c. The doubtful propriety of certain votes cast.
d. The absence of a map accompanying the election results.

The Election Commission responded that the contest had not been filed within ten days after certification as required by law.

On January 31, 1991, the Lawson case and the Brown case were consolidated for trial, and trial commenced on that same date. On March 29,1991, the circuit court entered judgments in both cases after advising the parties of his decision by letter opinion dated March 11,1990. In the Lawson case, he found that the inadequacy of the petitions for election was cured by the verifications of Lucy Gilbert which were added to the signatures on October 4, 1990, and by her testimony at trial. In the Brown case, he found that the election contest was not timely filed and even if it had been, the appellants had not shown that the absence of the alleged improprieties would have changed the election’s outcome.

We discuss the Lawson appeal first. We will not reverse a finding of fact of the circuit court unless it is clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Henard v. St. Francis Election Comm’n, 301 Ark. 459, 784 S.W.2d 598 (1990). The circuit court found that any inadequacies in the petitions for election were cured by the circulator’s verifications notarized by the St. Francis County Deputy Clerk and by the circulator’s testimony at trial. Both the Chief Deputy County Clerk and the County Clerk for St. Francis County testified that they checked the petitions against registered voter lists for Colt. We hold that the circuit court’s refusal to invalidate the election, as requested by appellant Lawson, was not error.

Lawson also raises the issue that the county clerk failed to certify that thirty percent of the qualified electors in Colt signed the petition under Ark. Code Ann. § 3-8-205 (1987). He also asserts that the election petitions were not filed within the proper time period and were not properly certified forty days before the election as required under Ark. Code Ann. § 14-14-915(b) (1987). However, no resolution of these points was obtained from the circuit court. Neither the letter opinion of the court nor the judgment in the Lawson case precisely decides these issues, and no post-judgment motion was filed by Lawson to clarify the court’s decision. We have made it clear in the past that we will not consider unresolved issues for the first time on appeal. See, e.g., McElroy v. Gresham, 306 Ark. 4, 810 S.W.2d 933 (1991); Todd v. Shrum, 302 Ark. 83, 787 S.W.2d 240 (1990); Britton v. Lloyd, 293 Ark. 397, 738 S.W.2d 408 (1987).

Appellant Brown argues for her first point that her petition to contest the election was timely filed on December 14,1990. We disagree. The circuit court found that the election results were certified on November 13, 1990, and left in the St. Francis County Clerk’s office, according to the Chief Deputy County Clerk. Despite the certification date, the contest by appellant Brown and others was not filed until December 14, 1990, which was thirty-one days later. Whether the time frame for filing a contest is ten days as the appellee advances and as the circuit court found under Ark. Code Ann. § 3-8-309 (1987) or twenty days as appellant Brown contends under Ark. Code Ann. § 7-5-801 (1987) is irrelevant, because under either calculation, the petition was not timely filed.

Appellant Brown argues that the certification actually occurred when the county judge approved the document on November 30, 1990. The Local Option Code, though, does not require county judge approval to effect certification but only delivery to the county clerk, which was done on November 13, 1990, according to testimony. See Ark. Code Ann. § 3-8-306(a) (1987). Moreover, we have upheld as a timely filing the delivery of a pleading to and its acceptance by a clerk. See Henard v. St. Francis County Election Comm’n, supra; Stanislaus v. Austin, 202 Ark. 441, 150 S.W.2d 610 (1941).

The circuit court was, therefore, correct in dismissing the Brown petition, and we affirm that decision. Because the petition was untimely, we do not reach the merits.

Affirmed.


text:
    Karen J. LYTLE v. WAL-MART STORES, INC.
    91-318
    827 S.W.2d 652
    Supreme Court of Arkansas
    Opinion delivered April 6, 1992

      William T. Finnegan, for appellant.

      Robert L. Robinson and Patricia Stanley Luppen, for appellee.
   Robert L. Brown, Justice.

This is an appeal from a directed verdict in favor of the appellee, Wal-Mart Stores, Inc., and against the appellant, Karen J. Lytle. The appellant sued Wal-Mart for injuries sustained in a North Little Rock WalMart store when she fell after stepping up on a display shelf in order to reach an item on a higher shelf. On appeal, she argues that the motion for a directed verdict did not contain the required specificity under Ark. R. Civ. P. 50(a) and that the circuit court invaded the province of the jury by engaging in fact-finding in its decision. The arguments are meritless, and we affirm.

The facts are straightforward. On August 4, 1990, the appellant and her son were shopping in a North Little Rock WalMart Store operated by the appellee. The appellant was looking at a display of school folders, when she noticed one on the top shelf with the cartoon figure, Bart Simpson. The appellant reached for the item, but it was beyond her grasp. She then saw a Wal-Mart employee at the end of the aisle and asked her if she could help. The Wal-Mart employee looked at the appellant as if to say “Huh?” and walked away. The appellant then stepped on the bottom display shelf and reached for the folder. In the process, she slipped and fractured her foot. She sued Wal-Mart for $15,000.

On May 7, 1991, the case was tried in circuit court before a jury. The appellant’s case consisted of her testimony, the testimony of her son, Bryant, the testimony of her mother, and the testimony of a Wal-Mart assistant store manager who stated that it was the duty of Wal-Mart employees to assist in helping the customers. At the conclusion of the appellant’s case, Wal-Mart’s attorney moved for a directed verdict:

On behalf of Wal-Mart, I move for directed verdict at this time, because I don’t believe there is any evidence in the record that would establish liability or fault or negligence of any kind on the part of Wal-Mart.
The testimony is undisputed that this lady climbed up on the shelf of her own accord. She claims she asked for help. Her son at first in deposition said she did not. He thinks now maybe she did, but all she did was ask someone a distance from her-for help, if she did ask for some help, and that person appeared not to understand or just turned around and walked off. And I don’t believe, even if the plaintiff had proved that she had asked the Wal-Mart associate for help and that associate had told her to go jump in the river, that that would necessarily be negligence on the part of Wal-Mart.
I think the plaintiff had a duty, if she wanted that merchandise on that shelf, to continue to seek assistance, and she could have asked another associate in the store for help, and she would have gotten help for sure. So I don’t believe there is any negligence here.
Plus, she fell off of the shelf or her shoe came off. I don’t think there is anything about the shelving, that it is clear that the shelving didn’t collapse, it didn’t break. She simply lost control. She assumed the risk of doing that when she stood up on that shelf. I think there is just clearly no evidence of negligence relating to that injury.

Wal-Mart’s attorney then added:

The only liability instruction offered by the plaintiff is AMCI 1104.... It says that in this case, Karen Lytle was a business invitee upon the premises of Wal-Mart, that Wal-Mart owed Karen Lytle a duty to use ordinary care to maintain the premises in a reasonably safe condition. There is absolutely no evidence that the premises were not in a reasonably safe condition and, for that reason, I move for directed verdict.

The appellant’s attorney responded that the negligence on Wal-Mart’s part consisted of “violating the first things taught by Wal-Mart to its associates, that the customer is boss and you do everything for the customer.” The employee’s failure to help constituted the negligence. The attorney added that the shelf did not collapse; the appellant slipped.

The circuit court granted the motion for directed verdict:

I just don’t see that there is any negligence whatsoever on the part of Wal-Mart. The fact that she asked for help and didn’t get it doesn’t, from my knowledge, constitute negligence. Maybe not good business judgment or decision, but not negligence.
Mrs. Lytle testified that there was absolutely nothing wrong with the shelf. I don’t see that there has been any breach of duty that Wal-Mart owed to this woman from a negligence standpoint, and that’s the reason for my decision.

Judgment was then entered in favor of Wal-Mart.

For her first point, the appellant argues that Wal-Mart’s motion for directed verdict failed to state specific grounds, and, thus, ran afoul of Ark. R. Civ. P. 50(a), which reads in part that a motion for a directed verdict “shall state the specific grounds therefor.” The appellant appends a collateral argument to this point and asserts that the circuit court, in its ruling, improperly supplied the required specificity.

These arguments have been largely resolved by our previous cases. We have held that a statement of specific grounds for a directed verdict is required so that a judgment will not be entered upon a ground that might have been countered with proof, had the ground been specified. Standridge v. City of Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1981). The requirement of stating specific grounds is mandatory. Svestka v. First National Bank in Stuttgart, 269 Ark. 237, 602 S.W.2d 604 (1980); Dodson Creek, Inc. v. Fred Walton Realty Co., 2 Ark. App. 128, 620 S.W.2d 947 (1981). We have further held that a trial court in its ruling may expand on a defendant’s motion for directed verdict. Standridge v. City of Hot Springs, supra. We said in Standridge that the reason for Rule 50(a) is to bring specific grounds for the motion to the court’s attention. If the trial court considers those grounds, and others as well, this does not violate the rule.

Specific grounds were set out in the oral motion for a directed verdict. Those grounds include:

a. The appellant climbed on the shelf on her own.
b. The appellant had a duty to ask for additional help.
c. The shelf did not collapse; rather, she lost control.
d. The appellant was a business invitee to whom WalMart owed a duty of ordinary care to keep the premises in a reasonably safe condition.
e. There was no evidence that the premises were unsafe.

Though Wal-Mart’s attorney did make reference to the outmoded concept of assumption of risk, this is not fatal to his motion, and his grounds for relief as outlined above clearly meet the required test of precision.

The appellant, secondly, argues that the circuit court invaded the jury’s province by determining a question of fact — that Wal-Mart breached no duty to the appellant. The argument has no merit. Our standard of review for denial of a directed verdict was capsulized in a recent case:

[I]n addressing the issue of whether a directed verdict should have been granted, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Where the evidence is such that fair-minded people might have different conclusions, then a jury question is presented, and the directed verdict should be reversed.

Howard v. Hicks, 304 Ark. 112, 113, 800 S.W.2d 706, 707 (1990).

There was no factfinding by the circuit court in this case. The court simply found no negligence or breach of the duty owed to the appellant under the facts presented by the appellant in her case-in-chief. In making this determination the court was on solid ground. The appellant was a business invitee by her own admission, and Wal-Mart owed her a duty to use ordinary care to maintain the premises in a reasonably safe condition. Assuming, as we must, that the Wal-Mart employee was in fact inattentive, the employee still had no way of foreseeing that the appellant would climb up on the display to get what she wanted. And, again, there was no deficiency in the premises. The appellant herself stated at trial that “the shelf was okay.”

A Wal-Mart assistant store manager did reply affirmatively when asked if it was a duty of Wal-Mart employees to assist in helping the customer. That, though, is a far cry from establishing a legal duty of care. We will not convert what is obviously a Wal-Mart policy towards its customers into the duty of care owed to a business invitee by an invitor. The Wal-Mart employee may have been remiss in her duty to render courteous service to the appellant, but discourtesy does not translate into legal liability. The circuit court was well within its bounds in finding that WalMart breached no duty of care to the appellant.

The appellant, lastly, contends that the display of Bart Simpson folders on the top shelf was negligence in that it enticed shorter people to climb up the shelves to reach the folders. This is a novel argument which was not raised by the appellant’s counsel before the trial court. Indeed, at trial the appellant stated:

I am not saying that they are all negligent because they might have shelves that are higher than I am tall or that I can reach. I am saying that they are negligent in the fact that when you do ask for assistance, there is no one readily available to give you that assistance.

The appellant did suggest in her testimony that Wal-Mart might consider lowering its shelves, but that was not the basis for her negligence claim. She has now changed her argument on appeal, and we will not countenance an argument raised for the first time on appeal. See Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989).

We hold, after reviewing the evidence in the light most favorable to the appellant, that fair-minded people could not have concluded that Wal-Mart was responsible for the appellant’s injuries under a duty of ordinary care. Wal-Mart had no role in the appellant’s accident. Mrs. Lytle took it upon herself to climb up the shelves which was clearly a risky business. What befell her was occasioned by her actions and not those of Wal-Mart.

Affirmed.

Dudley, J., not participating.


author: Per Curiam.

text:
    Curtis Nathaniel AUSTIN v. STATE of Arkansas
    CR 92-349
    825 S.W.2d 608
    Supreme Court of Arkansas
    Opinion delivered April 6, 1992

      Bill E. Ross, for appellant.
    No response.
   Per Curiam.

Appellant, Curtis Nathaniel Austin, by his attorney, has filed for a rule on the clerk.

His attorney, Bill E. Ross, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to.the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Linda R. KELLEY (Dachenhaus), Individually and as Mother and Next Friend of Alexandrea Kelley, A Minor v. Gilbert E. MEDLIN
    91-325
    827 S.W.2d 655
    Supreme Court of Arkansas
    Opinion delivered April 13, 1992

      Gary Eubanks & Associates, by: James Gerard Schulze and Hugh F. Spinks, for appellant.

      Lovett Law Firm, by: Brian P. Boyce, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves an automobile accident that occurred on June 1, 1987, in which the appellee, Gilbert Medlin, struck the rear of the car driven by the appellant, Linda Kelley. Ms. Kelley’s infant daughter, Alexandrea, was a passenger in the car.

Ms. Kelley filed suit against Mr. Medlin claiming damages for property, permanent personal injury, medical expenses, pain and suffering, mental anguish, loss of1 work time, and loss of working capacity. The case was tried before a jury, and the jury found in favor of Ms. Kelley and awarded her $745.70 in damages.

Ms. Kelley appeals and claims 1) that the trial court erred in refusing to instruct the jury on lost earning capacity, and 2) that the trial court erred in instructing the jury on an inapplicable statute. Neither of these arguments has merit, and we affirm the judgment of the trial court.

Initially, Ms. Kelley asserts that the trial court erred in refusing to instruct the jury on lost earning capacity. However, although she has abstracted her colloquy with the trial court concerning the basis of her objection, Ms. Kelley has failed to both proffer and abstract the desired jury instruction as part of her appeal. These lapses are fatal to her appellate argument, and we will, therefore, not address this issue. Pearson v. State, 307 Ark. 360, 819 S.W.2d 284 (1991); see also Mitchell v. First Nat’l Bank in Stuttgart, 293 Ark. 558, 739 S.W.2d 682 (1987) (citing Strickland v. Quality Bldg. & Security Co., 220 Ark. 708, 249 S.W.2d 557 (1952)).

Next, Ms. Kelley contends that the trial court erred in instructing the jury on an inapplicable statute. Ark. Code Anri. § 27-51-306 (1987) addresses the overtaking of a vehicle on the left and provides as follows:

The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules stated:
(1) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle;
(2) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall yield to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.

In this case, Ms. Kelley testified that her car was in the right hand lane of a four-lane highway (two lanes of traffic going both ways) and that Mr. Medlin’s truck hit her from behind. She stated that she was never in the left hand lane and that she did not pull over in front of Mr. Medlin in the right hand lane. In contrast, Mr. Medlin testified that his truck was in the right hand lane and that Ms. Kelley’s car came around the left hand lane and cut in front of him.

In her brief, Ms. Kelley claims that “[t]he statute obviously contemplates passing on a two lane highway where oncoming traffic approaches in the left lane. The statute simply does not apply on a controlled access four-lane highway where vehicles may pass to the left or the right.” Ms. Kelley cites no authority for her position, and, in fact, her argument encompasses the ability of vehicles traveling on a four-lane highway to pass on the left. The wording of the statute also supports this interpretation. Furthermore, the conflict in the testimony as to the relative positioning of the parties’ vehicles justifies the trial court’s giving this instruction.

We note that, even if there were some basis for a claim of error in the giving of this statute as an instruction, Ms. Kelley’s argument is of no merit because she was the prevailing party on this issue in the trial court, and she should not now be heard to complain. See Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983).

Consequently, the judgment of the trial court is affirmed.


author: Steele Hays, Justice.

text:
    Euleta WARE v. H. S. GARDNER
    91-315
    827 S.W.2d 657
    Supreme Court of Arkansas
    Opinion delivered April 13, 1992

      Willard Proctor, Jr., for appellant.

      Kemp, Duckett, Hopkins & Spradley, by: Donald K. Campbell, and Rudolph B. Hopkins, P.A., for appellee.
   Steele Hays, Justice.

The single procedural question presented by this appeal is whether a trial court can vacate an order dismissing an action for failure to prosecute more than ninety days after the order of dismissal. The trial court held that under Ark. R. Civ. P. 60(b) it lost jurisdiction to reinstate the action after ninety days. We agree with that conclusion.

This appeal springs from two cases involving the same parties and subject matter. Ms. Euleta Ware (appellant/plaintiff) sued for damages sustained in a fall on August 5,1985, at a laundromat belonging to H.S. Gardner (appellee/defendant). Ms. Ware’s first action (case No. 88-3883) was ordered dismissed on November 30, 1988, for failure to prosecute. Some four months later, on March 21, the action was purportedly reinstated by an order vacating the order of dismissal. On the following September 2nd, Ms. Ware took a non-suit.

When Ms. Ware filed a second action on July 2, 1990 (case No. 90-3182), which is now before us on appeal, Gardner moved to dismiss, contending the court had no authority to reinstate the original action because it lost jurisdiction ninety days after the dismissal order. Gardner further contended that because Ms. Ware’s second action was not filed within one year after the November 30 dismissal, it was not brought within the time allowed under the saving statute and was therefore barred. Arkansas Code Ann. § 16-56-126 (1987). The trial court sustained the argument and we affirm.

Gardner argues alternatively that the trial court could be affirmed on the strength of Ark. R. Civ. P. 41. Rule 41 provides that when an action is dismissed a second time it operates as an adjudication on the merits. However, the trial court did not address that argument and we will confine ourselves to the approach taken by the trial court.

Ms. Ware relies largely on language from Cole v. First National Bank, 304 Ark. 26, 800 S.W.2d 412 (1990). First National Bank had obtained a default judgment against Cole in 1984 for an unpaid promissory note. Service of process was sent by certified mail to Cole at a Houston, Texas, post office box. The return receipt was signed by Cole’s stepdaughter. In April of 19 8 9 Cole was notified that his bank account was subject to set-off pursuant to the default judgment and he moved to set aside the judgment alleging that he had never been personally served and had no notice, actual or constructive, of the proceeding against him. The trial court denied Cole’s requested relief. On appeal Cole argued the motion should have been granted and the bank’s cause of action dismissed with prejudice because it was now barred by the statute of limitations. This court agreed with Cole’s first argument, but rejected the second, observing that the bank had a right to rely on the default judgment, which specifically found that Cole had been “personally served in the time and manner required by law.” That finding was effectively reaffirmed several years later when Cole’s motion to set aside the default judgment was denied by the trial court. We held that under the circumstances the bank had a right to assume its action was timely commenced.

Drawing an analogy to the Cole case, Ms. Ware submits she had a right to rely on the March 21, 1989, order reinstating her initial cause of action. But we do not regard the two situations as comparable. In Cole the determination that the trial court’s finding was erroneous was not evident from the judgment itself, indeed, the issue was resolved only by way of contested proceedings at the trial and appellate levels. In contrast, the invalid order purportedly vacating an order entered some four months earlier was patently in conflict with Rule 60(b).

Affirmed.


text:
    Richard Lee MITCHAEL v. STATE of Arkansas
    CR 91-150
    828 S.W.2d 351
    Supreme Court of Arkansas
    Opinion delivered April 13, 1992

      Roger T. Jeremiah, for appellant.

      Winston Bryant, Att’y Gen., by: Didi H. Sailings, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Richard Lee Mitchael, was convicted of raping his seven year old stepdaughter and sentenced to thirty-five years imprisonment. He contends the Trial Court erred by (1) refusing to grant a mistrial when a witness referred to a warrant that had been issued for his arrest on a prior offense, (2) admitting his work records as evidence under the business records exception to the hearsay rule absent testimony from the custodian or other qualified witness, and (3) refusing to grant his motion for new trial based on ineffective assistance of counsel. We hold (1) the reference to the prior warrant was not sufficient to cause a mistrial, (2) a qualified witness testified with respect to the business records, and (3) Mitchael has not demonstrated ineffective assistance of counsel. We affirm the conviction.

Testimony showed that on June 27,1990, the victim and her family went swimming at the Alma Swimming Pool. The group included the victim’s mother, her brother, and Mitchael. Everyone returned to the house late that afternoon, and the mother left for work about 3:15 p.m. The brother left the house shortly thereafter. Mitchael was left babysitting the victim because it was his day off from work.

The victim testified she was sitting in the living room watching cartoons when Mitchael pulled her into his bedroom and onto the bed where he raped her. She described the incident in detail. Mitchael told her he would buy some diapers for her doll if she would not tell anyone. He later purchased and gave her the diapers.

At first, the victim did not tell her mother what had happened because she was afraid. The day after the rape occurred, she left to visit an aunt. Upon returning a week later, the victim revealed what had happened, and her mother took her to a doctor who examined her and found evidence of penetration.

Mitchael claimed the rape did not occur and that the victim was lying. He presented the testimony of his father, mother, and that of a son from a previous marriage. They testified Mitchael was at work on the 27th until 4:30 p.m. when he came by his parent’s house to pick up his son, Robert. Mitchael then took Robert to Mitchael’s house to spend the night. Robert testified he spent the evening at his father’s house playing Nintendo. He further stated the victim acted normally and watched television in the living room. Robert saw nothing unusual happen that night. The victim and her mother testified Robert was not at their house on the 27th.

Mitchael’s mother and father also'stated the victim had lied on several prior occasions. They admitted, however, that the lies always related to disputes between children.

Mitchael also attempted to prove that the victim had some knowledge about sexual activities before the 27th. This evidence was apparently presented to explain how a seven-year-old could testify in such graphic detail about sexual activities. Mitchael stated that a week before the incident allegedly occurred the victim walked into the living room while he was watching a pornographic movie. The movie allegedly depicted activities similar to the activities the victim said occurred between herself and Mitchael. The victim said she remembered walking into the living room while Mitchael was watching the movie; however, she was very confused about what exactly she saw.

Mitchael also testified he went to work at SSI Incorporated on the 27th and then to his parent’s house to pick up Robert, and Robert spent the night at Mitchael’s house. Mitchael said he was not in the house alone with the victim and had not touched her. He also stated he was impotent on the 27th. The mother contradicted that contention. Dr. Ross, who examined Mitchael for a prostate infection on July 12th, stated impotence could be a symptom of a prostate infection. The doctor did not know, however, whether Mitchael was suffering from the infection on the 27th.

In rebuttal, the State introduced Mitchael’s time card at SSI Incorporated through the testimony of Martine Anhalt. The time card showed that Mitchael was not at work on the 27th. This was contrary to Mitchael’s testimony, and that of his mother, father, and son.

The jury returned a guilty verdict. Judgment was entered on the verdict, and Mitchael moved for a new trial on the basis of ineffective assistance of counsel. The motion was denied.

1. Mistrial

The victim’s mother testified about filing the complaint against Mitchael with law enforcement authorities. The following colloquy occurred:

Q: You made a complaint?
A: Yeah, I filed a report.
Q: Once you filed a complaint, what took place then?
A: Well, they found that he had a warrant for his arrest.

Defense counsel immediately moved for a mistrial on the ground that the arrest warrant referred to a prior crime alleged against Mitchael. The Trial Court refused to grant the mistrial because the jury probably believed the warrant had been issued on the current rape charge. The mother had previously stated she had called the authorities on the current charge.

A mistrial is an extreme and drastic remedy to be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991). The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge, and the exercise of that discretion should not be disturbed on appeal unless an abuse of discretion or manifest prejudice to the complaining party is shown. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989).

Mitchael has not demonstrated the prejudice necessary for granting a mistrial. The Trial Court concluded, and we cannot disagree, that the jury could have believed the arrest warrant referred to the current rape charge.

Even if we assume jury members thought they were hearing evidence of a prior crime, that alone is insufficient for granting a mistrial in these circumstances. We have consistently affirmed refusal to grant a mistrial when a prior crime was mentioned in an inadvertent remark, absent a showing of significant unfair prejudice. See, e.g., Novak v. State, 287 Ark. 1, 698 S.W.2d 499 (1985); McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985); Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982). Here, the nature of the prior crime was not even disclosed, and there is at least doubt about the jury’s perception of the remark. We find no abuse of discretion in the refusal to grant a mistrial.

2. Rule 803(6)

The second point argued is that the Trial Court erred by admitting Mitchael’s work records because they constituted hearsay not within a recognized exception. More specifically, he argues the time card introduced as evidence did not fall within the business records exception to the hearsay rule because there was no “qualified witness” to show the time card was kept in the regular course of SSI Incorporated’s business.

Arkansas Rules of Evidence 803(6) provides an exception to the hearsay rule for:

A . . . record ... in any form . . . of . . . events . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity . . . shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. . . .

The sponsoring witness, Martine Anhalt, had been employed by SSI, a company owned by his brother, for twenty-one years. He testified he had brought with him the original time card for the week ending June 30 pertaining to Mitchael. Anhalt testified the document was a payroll record kept by company supervisors in the normal course of the company’s business. He did not personally maintain the time cards but had access to them. Based on this evidence, the Trial Court ruled that Anhalt was a “qualified witness.”

The Arkansas Court of Appeals has, on two occasions, dealt with the definition of “qualified witness” as the term is used in Rule 803(6). In Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (Ark. App. 1979), a former loan officer of a bank was found qualified to sponsor a customer account record. The Court of Appeals stated the officer’s familiarity with the account, in addition to his prior employment at the bank, qualified him as a witness within the meaning of Rule 803(6). A trial judge has wide discretion in determining the qualification of witnesses and the admissibility of evidence.

Again in Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark. App. 169, 705 S.W.2d 897 (1986), it was held that a witness sponsoring business records need not have knowledge of the actual creation of the document. The personal knowledge of the sponsoring witness regarding preparation of the business record goes to the weight rather than the admissibility of the evidence. See also McCormick on Evidence, § 292 (4th ed. 1991) (stating anyone with the necessary knowledge is qualified; there is no requirement that a sponsoring witness have firsthand knowledge of the matter reported or actually have prepared the report or observed its preparation).

The length of Anhalt’s prior employment at SSI, coupled with his knowledge of how the work records were maintained, qualified him as a witness under Rule 803(6). We find no abuse of discretion in the Trial Court’s decision.

3. New trial

The last argument is that the Trial Court erred by refusing to grant a new trial because defense counsel was ineffective. Although the theory presented at trial was that no rape occurred, Mitchael argues his counsel was ineffective for failing to investigate the victim’s biological father, brother, and other male relatives for having raped the victim. He also argues his counsel was ineffective for not showing the pornographic movie to the jury and by not investigating his work records prior to trial.

To prevail on a claim of ineffective assistance of counsel, it must be shown first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, it must be shown that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, and there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt. Vick v. State, 301 Ark. 296, 783 S.W.2d 365 (1990), citing Strickland v. Washington, 466 U.S. 668 (1984).

The burden is on Mitchael to prove his allegations, and we do not reverse a trial court’s findings unless they are clearly against the preponderance of the evidence. Cranford v. State, 303 Ark. 393, 797 S.W.2d 442 (1990). The burden is a heavy one because counsel is presumed effective. Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990).

We cannot say defense counsel was ineffective for allegedly failing to investigate other men for having raped the victim. Mitchael recognizes in his brief to this Court that the theory presented at trial was that no rape whatever occurred. Mitchael now claims that theory was incorrect.

Matters of trial tactics and strategy are not grounds for post-conviction relief. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). A claim of ineffective assistance of counsel cannot be based upon improvident strategy. Coston v. State, 284 Ark. 144, 680 S.W.2d 107 (1984).

Nor was defense counsel ineffective for refusing to show the pornographic movie to the jury. Counsel did not believe it would be helpful, and this decision was also one of trial tactics and strategy.

Mitchael also argues defense counsel should have investigated his work records, suggesting counsel should not have relied on MitchaePs word and that of his relatives. By investigating, counsel would have discovered Mitchael was not at work on the 27th. Four witnesses, including Mitchael, told counsel they believed Mitchael was at work on the 27th. The failure to corroborate this story beyond the witnesses consulted was not “an error so serious that counsel was not functioning as the counsel guaranteed by the sixth amendment.” Vicks v. State, supra.

Affirmed.


author: Tom Glaze, Justice.

text:
    Donald Keith GAVIN v. STATE of Arkansas
    CR 92-182
    827 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered April 13, 1992

      Hough & Hough, P.A., by: Stephen G. Hough, for appellant.

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

Appellant appeals from his conviction of DWI. The trial judge, sitting as the trier of fact, sentenced the appellant to serve twenty-four hours in the county jail, complete an alcohol education course, pay a $250 fine and court costs of $311. In his appeal, the appellant argues that the trial judge erred in admitting the results of his blood alcohol test into evidence because 1) there was no physician present when the blood sample was taken in violation of Ark. Code Ann. § 5-65-204(d); and 2) the sample was not taken pursuant to the Arkansas Regulations for Blood Alcohol Testing, § 3.20. We find no merit in the appellant’s arguments, so we affirm.

At about 3:20 a.m., appellant’s vehicle was clocked speeding by Officer Squires. The officer followed with his car’s blue lights on, and it took the appellant almost one minute before he stopped his vehicle. When the officer approached the appellant’s vehicle, he noticed that the appellant smelled strongly of alcohol and that his eyes were red. Appellant admitted to having consumed a couple of beers, and an empty beer can was found in the back of his truck. The officer also testified that the appellant had poor balance when he exited his vehicle. The appellant was given a portable breathalyzer test and was then taken to the police station for further testing. Appellant agreed to submit to a blood alcohol test. Officer Squires took the appellant to Mercy Hospital, and filled out a request form for the blood sample. His blood alcohol level was .16.

First, appellant argues that the trial court erred in admitting his blood alcohol test results into evidence because a doctor was not present when the registered nurse took his blood sample. Appellant argues that the presence of a doctor is necessary under the requirements of Ark. Code Ann. § 5-65-204(d) (Supp. 1991), which provides the following:

When a person shall submit to a blood test at the request of a law enforcement officer under the provisions of this section, blood may be drawn by a physician or a person acting under the direction and supervision of a physician.

It is undisputed that, although a doctor was on call, one was not present at the hospital when the registered nurse, Vickie Richmond, took the blood sample at 3:55 a.m. Nurse Richmond testified that the standard hospital policy in taking a blood test is that a registered nurse, doctor, or registered lab person draws the blood. In addition, she stated that it was standard practice to have a doctor on call. Officer Squires witnessed the nurse taking the blood sample.

This is the first time this court has been asked to interpret the phrase “under the direction and supervision of a physician” in § 5-65-204(d). However, other jurisdictions with similar statutes have considered this issue. In People v. Mari, 528 P.2d 917 (1974), the Colorado Supreme Court addressed an appellant’s argument that the results of his blood alcohol test should not have been introduced into evidence because the blood was drawn by a medical technologist and no physician or registered nurse was present at the time the sample was taken. Under Colorado law, a physician, registered nurse, or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse are entitled to withdraw blood for the purpose of determining the blood alcohol content. In upholding that trial court’s finding that the medical technologist was a qualified person under the statute, the court stated the following:

We do not read the statute to require on-the-spot supervision of a doctor or registered nurse, on the contrary, if her normal duties as a medical technologist include withdrawing blood samples while she is under the supervision of a physician or registered nurse, she qualifies notwithstanding the fact that supervision was not present at this time. We read the “under supervision” clause as referring to any “normal duties” and not as a requirement that the supervision be present at the time the technician withdraws the blood.

Id. at 919; see also People v. Jenne, 168 Mich. App. 518, 425 N.W.2d 116 (1988) (court interpreted “under the direction of a licensed physician” not to require personal presence of a physician when a medical technician withdrew blood); People v. O’Doherty, 70 N.Y.2d 479, 517 N.E.2d 213 (1987) (court held that physician is not required to be actually present, observing the procedure, when the laboratory technician draws blood sample for the purposes of conducting an alcohol content test).

Clearly, here, a registered nurse’s normal duties include taking blood samples, and as she testified she followed the standard hospital policy in extracting the appellant’s blood sample. As noted in O’Doherty, 70 N.Y.2d 479, 517 N.E.2d 213, to require a physician to be present when the blood sample is withdrawn would render useless the provision allowing nonphysicians to take the blood sample in the first place. If the doctor’s presence is required, he or she could just take the sample. In sum, we decline to interpret “under the direction and supervision of a physician” so narrowly as to require that a physician be actually present. Under the facts of this case, a registered nurse taking the sample following standard hospital policy with a physician on call meets the requirements and purpose of § 5-65-204(d).

Next, the appellant argues that the trial court erred in admitting the blood alcohol test results, because the state did not show that the proper procedure was used under the Arkansas Department of Health Regulation for Blood Alcohol Testing, § 3.20. In pertinent part, this regulation provides the following:

(T)he skin at the area of puncture shall be thoroughly cleansed and disinfected with an aqueous solution of nonvolatile antiseptic such as benzalkonium chloride (zephiran). Alcohol or other volatile organic disinfectant solutions shall not be used as a skin antiseptic or to clean hypodermic needles, syringes, or containers.

At the trial, Nurse Richmond testified that she followed standard hospital procedure in taking the blood sample and cleaned the area of the puncture with a nonalcohol product, hydrogen peroxide. On cross-examination, she was asked by the appellant’s attorney whether hydrogen peroxide.was a volatile chemical agent, and she answered no. However, when the appellant’s attorney repeatedly asked her if the substance was volatile, she admitted that she was not sure.

Through Nurse Richmond’s testimony, the state met its proof required under regulation § 3.20. She testified that, in accordance with standard hospital procedure, she used a nonalcohol substance to clean the puncture area. And while appellant’s attorney questioned Richmond’s certainty on whether the substance used was or was not nonvolatile, such impeachment goes to the weight to be given her testimony, not its admissibility. See State v. Green, 389 N.W.2d 557 (Neb. 1986); State v. Steinbrunn, 774 P.2d 55 (Wash. App. 1989); see generally Annotation, Blood Alcohol Test Prescribed Methods 96 A.L.R.3d 745 § 10 (1980).

Even if we were to agree with the appellant’s argument that the trial judge erred in admitting his blood alcohol test results into evidence, we would not reverse because there is competent evidence sufficient to support the appellant’s DWI conviction. Butler v. Dowdy, 304 Ark. 481, 803 S.W.2d 534 (1991). As noted in the beginning of the opinion, Officer Spires testified that the appellant smelled strongly of alcohol, and he had red eyes and poor balance when he exited his vehicle. In addition, the appellant admitted to having consumed “a couple of beers,” and an empty beer can was found in his truck. In fact, the officer testified that he had no doubt in his mind that the appellant was intoxicated and was a danger to other persons.

For the reasons stated above, we affirm.


text:
    Roland Bruce HEINZE v. STATE of Arkansas
    CR 91-215
    827 S.W.2d 658
    Supreme Court of Arkansas
    Opinion delivered April 13, 1992

      Keil & Goodson, by: John C. Goodson, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals from his conviction of first degree murder and sentence of life imprisonment. He raises three issues in his appeal questioning the trial judge’s ruling excusing a juror and the judge’s evidentiary rulings excluding evidence concerning the victim’s prior acts of violence and other wrongs. We find no merit in appellant’s arguments, and therefore affirm.

Since sufficiency of the evidence is not at issue in this appeal, we need only briefly set out the facts. On January 2, 1991, appellant, Alan Taylor and Rusty Nettles were at Brenda Heflerman’s residence. Appellant insisted on riding with Alan Taylor to take Rusty Nettles to his home fifteen miles away. Alan Taylor testified that Nettles did not want the appellant to go, because he did not want the appellant to know where he lived. Nettles sat in front with Taylor, and the appellant got into the back seat of the vehicle. As they were driving towards Nettles’ house, Taylor testified he heard a gunshot and Nettles slumped forward in his seat and then over towards Taylor. After driving an additional fifty yards, Taylor heard another shot, and felt something in his back. After shooting Taylor, appellant announced that he could not leave any witnesses. Taylor testified that he stopped the vehicle and persuaded the appellant not to kill him. The appellant threw Nettles out of the vehicle and shot him again. Appellant and Taylor then drove back to Ms. Hefferman’s residence, where they cleaned the blood out of the vehicle.

After his arrest, the appellant made a statement to the police that he did not like the way Nettles treated Ms. Hefferman and that she had tried to get rid of Nettles but that he would not stay away. Officer Loe testified that the appellant told him that he took the gun from Ms. Hefferman’s and concealed it. In his statement to the police, the appellant stated that he knew that he was going to shoot Nettles when he got into the back seat of the car. When the appellant testified at the trial, he denied making this statement. Instead, he testified that he was intoxicated and that he just lost it when he thought of how Nettles treated Ms. Hefferman. Appellant testified that he shot the victim the second time to put him out of his misery.

For his first point on appeal, the appellant argues that the trial court erred in excusing a juror during the trial when it was discovered that the juror was not a registered voter and seating an alternate juror, Mrs. Ward, in his place. The quick answer to this issue is that the appellant has not shown how he was prejudiced by the seating of the alternate juror. This court has repeatedly held that an appellant must show prejudice, because we will not reverse, for harmless error. See, e.g., Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987). In addition, it is the appellant’s duty to provide a complete record from which this court can determine asserted error. Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992). The appellant’s attorney requested that the jury voir dire be excluded from the record, so this court cannot determine if there was any reason seating the alternate juror on the jury would have prejudiced the appellant. In fact, from what is before this court, the opposite appears to be true. The trial judge, in making his ruling, pointed out that the appellant had used one of his peremptory strikes to dismiss the first alternate seated, leaving Mrs. Ward as the remaining first alternate.

In the appellant’s second and third issues, he argues that the trial court erred in excluding evidence of the victim’s character under A.R.E. Rules 404 and 405. Under Rule 404(a)(2), evidence of a pertinent trait of character of the victim of the crime offered by an accused is admissible. During the trial, the following evidence about Nettles was admitted into evidence. Officer Morgan testified that he knew the victim because he had been to Brenda Hefferman’s residence on three or four occasions on disturbances, and had served a warrant on him for a hit and run charge. The appellant was allowed to testify that he thought that Nettles would resort to violence and that he got the gun that night to defend himself. In addition, Officer Loe testified that the victim had a knife on his person when he was found. The appellant also testified that he knew that the victim was carrying a knife that night because he had seen him playing with it earlier. Thus, pursuant to Rule 404(a)(2), the appellant was able to get into evidence that the victim may have had a violent character and was carrying a knife on the night in question.

At trial, the appellant was not allowed to testify or have Officer Morgan testify about specific prior acts of violence or other wrongs committed by the victim. Evidence of other crimes, wrongs, or acts are admissible under Rule 404(b) for proof of motive, opportunity, intent, preparation, knowledge, identity, or absence of mistake or accident. Specific instances of conduct are only admissible under Rule 405(b) when the character or a trait of character of a person is an essential element of a charge, claim, or defense. The trial judge sustained the state’s relevancy objections, and the appellant argues that this evidence was admissible under Rules 404(b) and 405(b). We do not agree.

Specifically, the appellant argues that this evidence was relevant to prove his self-defense theory. Deadly physical force is justified as self-defense only if the use of such force cannot be avoided as by retreating. Ark. Code Ann. § 5-2-607 (1987). This court has held that a condition precedent to a plea of self-defense is an assault upon the defendant “of such a character that it is with murderous intent, or places the defendant in fear of his life, or great bodily harm.” Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985).

As shown by the facts set out here and above, self-defense is clearly not applicable in this case. Appellant insisted on riding with Taylor to take the victim home, and purposely got into the back seat with a gun. Then without any altercation, appellant shot Nettles in the back and then again after he dragged Nettles’ body out of the vehicle. Clearly, the trial judge did not abuse his discretion in excluding the evidence of the victim’s prior acts of violence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). In sum, Rules 404(b) and 405(b) are not applicable under the facts of this case.

In accordance with Ark. Sup. Ct. R. 11 (f), the record of the proceedings has been examined, and the court has determined that there are no rulings adverse to the appellant which resulted in prejudicial error. For the reasons stated above, we affirm the appellant’s conviction.


text:
    Gary MOORE v. STATE of Arkansas
    CR 90-1
    828 S.W.2d 599
    Supreme Court of Arkansas
    Opinion delivered April 13, 1992

      Lynn A. Davis, for appellant.

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

This is the third appeal by the appellant, Gary Moore. Moore stands convicted of possession of marijuana and possession of drug paraphernalia. He was sentenced to six years and three months and fined $5,000 on the paraphernalia charge and was sentenced to six months in the Faulkner County jail and fined $500 for possession of marijuana. He now appeals on two grounds: a) he did not intelligently waive his Miranda rights because the police officer did not advise him that an attorney would be provided him free of charge; and b) it was error to conduct a hearing under Jackson v. Denno, 378 U.S. 368 (1964), after introduction of a statement, and the error could not be cured by a post-conviction hearing. The arguments are meritless, and we affirm.

Moore was charged on March 18,1987, with possession of a pound of marijuana on the day before with intent to deliver and with possession of drug paraphernalia. He was convicted of both charges and sentenced on September 16, 1987. We reversed on the basis that Moore’s trial should have been severed from that of his co-defendants because a statement of a co-defendant improperly implicated him in the crimes charged and because Moore’s own statement referred to the other co-defendants. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988) (Moore I). We remanded the case for a new trial.

In his second trial on May 30, 1989, Moore was tried alone and convicted of both charges and sentenced as stated previously in this opinion. He appealed on the two points presently before this court, that is, he was not appropriately advised that he was entitled to an attorney free of charge, and he was not afforded a Denno hearing on his motion to strike his statement. We agreed on his second point and remanded the matter for a Denno hearing. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990) (Moore II). We held, however, that the conviction and sentence would stand absent a finding by the circuit court that Moore did not knowingly and intelligently waive his Miranda rights or that he did not voluntarily make his statement. We reserved judgment on the argument raised regarding “free” counsel.

A Denno hearing was held by the circuit court on December 14, 1990. Moore denied that he knew he was entitled to free counsel, but the court found that Moore’s statement was admissible.

We first consider the point that Moore was not advised he was entitled to counsel free of charge as part of his Miranda warnings. The rights form read by the police detective to the appellant and initialed and signed by the appellant contains the statement: “You may have an attorney appointed by the court to represent you if you cannot afford or otherwise obtain one.” Detective A. J. Gary of the Conway Police Department stated on cross-examination: “I always add the word free since the Supreme Court passed a different decision.” Moore argues that because of Officer Gary’s addendum the Miranda warnings were deficient.

We disagree. We have previously held on this very point as follows:

. . . [T]he warning must make some reference to the indigency of the person being warned in connection with informing him that an attorney will be appointed for him. While we are not holding that specific words are required, we suggest it would be very simple for the warning to say that the person being warned has the right to have an attorney present and that he may either retain one himself or, if he cannot afford one, have one appointed by the court.

Mayfield v. State, 293 Ark. 216, 222-223, 736 S.W.2d 12, 15 (1987); see also Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988) (we held sufficient a warning “if you cannot afford a lawyer, one will be appointed for you. . . .”). In the case before us, the form read that if the accused could not afford counsel, one would be appointed for him. The language is almost word-for-word in accordance with our suggested language in Mayfield and easily passes constitutional muster. Whether the police officer added the word “free” to the warning under these circumstances is irrelevant.

We next turn to the procedure employed by the circuit court in regard to the Denno hearing. Moore argues that conducting a Denno hearing on his motion to strike the statement after trial, conviction, and sentencing does not cure a fatal deficiency in the process. We decided this issue in Moore II, however, when we held:

. . . [W]e must agree with Moore that the trial court’s failure to conduct an evidentiary hearing on his motion to strike was error. However, this failure does not in and of itself entitle Moore to a new trial. Instead, we remand to the trial court with instructions to hold a hearing and rule on the issue of the voluntariness of Moore’s statement. See Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980); Jackson v. Denno, supra. A new trial should be ordered only if the trial court finds the statement to be involuntary. Id.

Moore II, 303 Ark. at 4-5, 791 S.W.2d at 700. The circuit court found that Moore’s statement was admissible. Moreover, Moore has presented no argument showing how he was prejudiced by a post-conviction Denno hearing. We have held that there must be some showing of prejudice to reverse a conviction. See Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). We, therefore, affirm the convictions and sentences.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    ARKANSAS INTERCOLLEGIATE CONFERENCE and Harry Hall, Commissioner v. Gary P. PARNHAM, Jr.
    91-323
    828 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered April 20, 1992
    [Rehearing denied May 26, 1992.]

      Dover & Dixon, P.A., by: M. Darren O’Quinn, for appellant.

      Travis Mathis, for appellee.
   Robert H. Dudley, Justice.

We affirm the dismissal of this case. Gary Parnham, the plaintiff below, transferred from Louisiana Tech University to Henderson State University in the fall semester of 1989. The terms of school at Louisiana Tech are quarter terms, consisting of a fall term, a winter term, and a spring term, each consisting of three (3) months. The terms at Henderson State are semester terms and consist of a fall semester and a spring semester, each consisting of four and one-half (4 '/^) months. The three quarter terms at Louisiana Tech cover the same period of time, nine months, as the fall and spring semesters at Henderson State. The plaintiff wanted to play for the Henderson State baseball club in the spring term of 1989, but Harry Hall, the Commissioner of the Arkansas Intercollegiate Athletic Conference, declared that plaintiff was ineligible under the ByLaws and Regulations of the AIC since he had not successfully completed twenty-four (24) credit hours for the two (2) terms prior to his transfer and twelve (12) credit hours in the last term prior to his transfer. In his letter declaring plaintiff ineligible, Commissioner Hall wrote that plaintiff, while at Louisiana Tech, earned ten (10) credit hours in the 1988 fall term, five (5) credit hours in the 1989 winter term, and nine (9) credit hours in the 1989 spring term, but that “when the semester hours earned for the last two terms of attendance by student-athlete Parnham are converted by Louisiana Tech University back to quarter term hours of credit, student-athlete Parnham would still fail to meet the AIC requirement of having earned 24 credit hours for the last two terms of attendance.”

On March 16, 1990, plaintiff filed suit against Commissioner Hall and the AIC, and sought an order restraining Hall and the AIC from disqualifying him from participating in the baseball program. The complaint alleged that “the ruling of the Respondent [Hall] declaring the petitioner to be ineligible is arbitrary, capricious and not in keeping with either the spirit or letter of the Rules and Regulations promulgated by the Respondents.” The complaint did not question the authority of the AIC to make rules for its member schools, nor did it question the authority of Commissioner Hall to interpret those rules. It questioned only this one ruling. On March 21, 1990, Commissioner Hall and the AIC responded by pleading “the affirmative defenses of lack of jurisdiction over the person, insufficiency of process, insufficiency of service of process” and “failure to state facts upon which relief can be granted,” and denied that Commissioner Hall’s interpretation was arbitrary.

A temporary hearing was held on March 21, 1990, and at that hearing the Chancellor asked if there was any objection to proceeding because of the lack of service of process. The attorney for Commissioner Hall and the AIC admitted that Hall had been served, but stated that service had not been perfected on the AIC. See A.R.C.P. Rule 23.2. The Chancellor commented:

I think I can enter an order that would bind him [Hall] on the basis of him being served, but I am dubious that I can enter an order that would bind the Arkansas Intercollegiate Conference if it has not been appropriately served. But we’ll take that up in due course. I think we can proceed today on the basis that this is a temporary proceeding only.

The plaintiff put on his case for a temporary order and, at the conclusion of the testimony, the court found, in part:

[I] n other places in the rules, the rules seem to contemplate that schools will have different calendars, and they talk about the idea that someone should be expected to go through school in eight semesters, or in twelve quarters, which seems to indicate that they realize that a quarter and a semester are not exactly the same. And I simply cannot accept that it’s anything other than arbitrary and capricious to expect one person to go to a semester school and in the course of a year to complete twenty-four hours successfully, and to let someone else go to a school that operates on quarters and tell that person that in the course of the same nine months, I guess you’ve got to complete thirty-six hours, and you’ve at least got to complete twenty-four in the last two trimesters. . . .

The Chancellor, in announcing her ruling from the bench stated, “ [I] t will be temporary only. Let’s set it down for a hearing on the merits and you will have to deal with the problem of service in this particular case on anyone other than Hall.” The temporary restraining order, entered on March 23, 1990, provided that service was not had upon the AIC, and it only restrained Commissioner Hall “from ruling that the Petitioner is ineligible.” Later that same day, the 23rd, Commissioner Hall filed a motion for “reconsideration and amendment of temporary injunction or, in the alternative, stay of temporary injunction pending appeal.” Even though the AIC was not a party to the injunction, it joined in the motion. On March 29,1990, the trial court denied the motion for reconsideration and for a stay pending appeal, and set the case for trial on May 16,1990. Commissioner Hall did not appeal from the interlocutory order by which the injunction was granted. See A.R.C.P. Rule 2(a)(5). The plaintiff played on the team for the remainder of the spring semester, and the matter has been moot since that time.

On May 1, 1990, a little over a month after the injunction had been issued, Commissioner Hall and the AIC filed a pleading styled “Respondents’ Amended Response and Counterclaim for Declaratory Judgment.” The pleading, in the material part, provides:

Respondents request a declaratory judgment in this matter as to whether Respondents have the authority to adopt rules and regulations and enforce such rules and regulation as written or interpreted by the AIC commissioner or its members. Further, Respondents request a declaratory judgment as to whether Petitioner has stated facts upon which relief can be granted pursuant to Ark. R. Civ. P. 12(b)(6). Finally, respondents request that a declaratory judgment be issued as to whether a temporary injunction was appropriate in this case. Respondents respectfully request all relief requested in its previous pleadings. . . .

Thus, the AIC attempted to preserve its defense of lack of service of process, see A.R.C.P. Rule 12 (h)(1), but, by filing a permissive counterclaim, entered its appearance. Arkansas Game & Fish Comm’n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987). However, this entry of appearance was made only after the injunction already had been issued. We make no holding on whether a motion for dismissal or motion questioning the granting of the temporary restraining order is properly a matter for declaratory judgment, but see Ark. Code Ann. § 16-11-104 (1987).

On May 9,1990, the plaintiff moved to dismiss his case and the counterclaim. On September 5,1990, the Chancellor granted the order of dismissal and, in it, noted that respondent Hall appeared in person and by attorney. The order makes no mention of an appearance by the AIC.

The AIC seeks to appeal from the order of dismissal but, in its brief, no mention is made of an appeal by Commissioner Hall. Of course, the style of the case from the trial court contains both names, but the relief asked for in the concluding paragraph is:

In view of the foregoing, the AIC respectfully requests that the court issue a ruling that the chancery court exceeded its discretion in issuing a temporary restraining order. Alternatively, the AIC requests a remand of this case for a trial on the AIC’s counterclaim for declaratory relief.

The court of appeals certified the case to this court. In its points of appeal, the AIC contends that the Chancellor erred “when it granted Parnham a temporary restraining order against the AIC” and “when it dismissed the AIC’s counterclaim for declaratory relief.” The obvious reason for refusing to hold that the trial court erred “when it granted Parnham a temporary restraining order against the AIC” is that the Chancellor never entered such an order. Each of the orders was carefully drawn to apply against only Commissioner Hall. Next, the AIC asked for a declaratory judgment that it had “the authority to adopt rules and regulations and enforce such rules and regulations as written or interpreted by the AIC Commissioner or its members.” There simply was no justiciable controversy over the AIC’s authority to adopt rules and regulations, or its ability to enforce its rules and regulations, or the Commissioner’s authority to interpret the rules. No one questioned that authority. The single issue was whether the Commissioner arbitrarily and capriciously interpreted one of the validly adopted rules that the AIC has the authority to enforce. Thus, the trial court correctly refused to grant the relief asked because there was no justiciable controversy about that issue. Andres v. First Ark. Dev. Corp., 230 Ark. 594, 324 S.W.2d 97 (1959). In addition, the only possible issue, Commissioner Hall’s ruling, is moot. A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Frisby v. Strong School Dist., 282 Ark. 81, 666 S.W.2d 391 (1984). There are exceptions to the doctrine of mootness, see Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990) and Nathaniel v. Forrest City School Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989), but none of those exceptions requires us to decide this case.

Affirmed.