text:
    Gyronne BUCKLEY v. STATE of Arkansas
    CR 99-1081
    20 S.W.3d 331
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      John Alexander Thomas, Judge;

      Jack T. Lassiter and Pamela Epperson, for appellant.

      Mark Pryor, Att’y Gen., by: Kelly K Hill, Deputy Att’y Gen. and David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   LAVENSKI R. SMITH, Justice.

Appellant Gyronne Buckley appeals stice. two counts of delivery of a controlled substance, both Class Y felonies, for which he was sentenced to two consecutive life terms by a Clark County jury. Buckley asserts that four trial errors require reversal. One occurred during the guilt phase of the trial and three during the sentencing phase. We find merit in Buckley’s contention that the trial court erred in admitting certain hearsay evidence in the sentencing phase of his trial and therefore reverse and remand for new sentencing.

Facts

Buckley’s arrest and subsequent conviction followed two arranged drug purchases from Buckley by informant Corey Livsey. Arkadelphia Police arrested Livsey on January 12, 1999, for shoplifting. In exchange for dismissing these charges against him, Livsey agreed to participate in attempted crack cocaine purchases from Buckley under the supervision of the Arkadelphia Police Department and the South Central Drug Task Force, which operated in Clark County. Police released Livsey from custody that same afternoon. Livsey returned to the police department early that same evening, and the Arkadelphia police officers and the Drug Task Force officers wired Livsey with a body microphone so they could listen to Livsey as he attempted to buy drugs from Buckley.

The officers expected the sale to take place at Buckley’s residence. They dropped Livsey off in Buckley’s neighborhood a couple of blocks away from Buckley’s home. According to Livsey, who testified at trial, Buckley invited him inside after he knocked at the door of Buckley’s house. According to Livsey, he pulled forty dollars from his pocket and asked to buy crack cocaine, using slang terms to ask for the drugs. The audio tape, however, itself contained no conversation clearly indicating that a drug transaction was taking place. Livsey testified that he bought two rocks of cocaine for $20 apiece, and then left the house. The police picked up Livsey a few blocks away and retrieved the drugs from him. The participating officers testified at trial that they searched Livsey before the transaction took place to verify that he had no drugs on his person before the sale, and also searched him afterward to verify that he no longer had the task-force money on his person. The following day, January 13, 1999, the officers arranged another “buy” with Livsey, who once again wore a body microphone. Just as the previous day, the officers took Livsey to Buckley’s neighborhood and dropped Livsey off with his bicycle. Livsey rode his bicycle to Buckley’s house, played basketball with some teenagers outside, and spoke with Buckley. According to Livsey, the pair went into Buckley’s backyard, and Buckley sold Livsey more crack cocaine. Livsey then left the house and was picked up by the officers. The police searched Buckley’s house on January 14, 1999, and gathered tweezers, aluminum foil with marijuana seeds in it, a pill bottle with white residue in it, and a plastic sandwich bag with residue in it at the scene. On the same date, the police arrested Buckley for selling cocaine to Livsey. The Clark County Prosecuting Attorney filed a felony information on January 14, 1999, charging Buckley with two Y felonies for the delivery of a controlled substance.

On May 17, 1999, Buckley’s attorney filed a motion in limine requesting, in part, that the trial court exclude anticipated testimony about Buckley’s reputation as a drug dealer. The defense pointed out that Buckley had never been arrested or convicted on any prior drug-related crimes. The trial court ruled that the State could not present such evidence unless the defense put it at issue. The trial court reserved its decision on the use of this information during the sentencing phase of the trial.

A jury trial began on May 25, 1999. During voir dire, the jury was selected from a panel of twenty-five venire persons, including seven African-Americans. Of these seven venire persons, three were excused for cause, one was excused because she had been subpoenaed by the defense, and the State struck the fifth with a peremptory challenge which survived a Batson challenge by the defense. Juror Number Five, Tennie Wilson, was the only African-American chosen from the venire to serve on the jury. Buckley did not raise any jury-selection issues on appeal.

The State presented six witnesses in its case in chief: Dan Hedges, William Summerville, Jr., Roy Bethell, Corey Livsey, Keith “Buck” Ray, and Linda Card. Hedges, a forensic scientist with the Arkansas State Crime Lab, testified that the evidence sent to the crime lab tested positive for crack cocaine. Summerville, Jr. and Bethell explained how the drug buys were arranged with the assistance of confidential informant Livsey, to whom they paid $100.

The State’s final two witnesses were Ray and Card, investigators with the South Central Drug Task Force. Ray testified primarily about how confidential drug informants are found and that many people who are arrested for unrelated charges are used as informants. Ray also testified about the slang terms used during a drug transaction, such as the term “hookup,” a term used when a person is looking for drugs. Card next testified regarding her role in the operation. Card acted as the case agent, the person who keeps track of all of the evidence and paperwork in the case. Card noted that she took the drugs from Livsey after each transaction, packaged and marked them, and then transported them to the State crime lab. She also testified that she monitored the sound system during both drug transactions.

During a break in Ray’s testimony, the bailiff apprised the trial court of a situation involving Tennie Wilson, the only African-American juror. Wilson told the bailiff that she wanted to be excused from the jury because' she had previously dropped a person off in Buckley’s neighborhood and that she did not want to be involved in anything that was improper. The trial court and the attorneys questioned Wilson, who testified that she knew that her passenger used drugs, but that she did not know why she dropped the person off in that neighborhood. Wilson indicated, however, that she could follow the court’s instructions and that she would listen to all of the evidence and be fair and impartial in making her decision. The court also questioned the bailiff who Wilson approached with this information, and the bailiff indicated that Wilson stated, “I never saw anything, but I know what was going on.” The trial court then ruled that Wilson remained qualified to sit on the jury.

Upon hearing this, the defense moved for a mistrial, arguing that these events would be prejudicial to Buckley. The State responded that it would be willing to use the alternate juror if the defense so requested, but the defense argued that Wilson was the only African-American juror remaining on the jury, and to dismiss her would be highly prejudicial to Buckley. The trial court first granted the mistrial stating, “I’m going to grant this motion and we can try it again. With her being the only African-American, based upon what’s occurred, I think it places the defense in the position where even if he wanted to — I mean, he’s really not in the position to do anything.” The State then requested that the court reconsider its position and argued that the purpose for choosing the alternate juror, a person on whom both parties agreed, was so that there would still be twelve jurors available should one be dismissed. Eventually, the trial court gave the defense the option of striking Wilson and proceeding with the alternate juror, or allowing Wilson to remain and continuing the case. Regardless, the trial court ruled that a mistrial would not be granted. The defense again noted its objection, but chose to allow Wilson to remain on the jury, and the trial continued.

After the close of the State’s case, Buckley moved for a directed verdict arguing that there was insufficient evidence that Buckley sold drugs to Livsey, that there was a chain-of-custody problem with the drug evidence at the State crime lab, that the State did not meet its burden of proof, and that Livsey had the opportunity to get the drugs from other sources during the periods in which he was not in the presence of the police. Buckley also renewed his mistrial motion, and added that he had no choice but to keep Wilson because the Caucasian jurors might speculate as to why the only African-American juror had been dismissed from the case. The trial court denied Buckley’s motion for directed verdict, and also denied his renewed motion for mistrial, reiterating the reasons each African-American venire person had been eliminated from the venire.

The defense presented five witnesses. In addition to recalling Summerville and Bethell, Buckley testified on his on behalf along with his mother, nephew, and one of Buckley’s friends. Buckley testified regarding the clothing and accessories retail business he and his wife operated in Houston, where they resided, and in Arkadelphia, where Buckley’s mother and family lived. Regarding the alleged drug transaction on January 12, 1999, Buckley testified that Livsey showed up at his house and immediately pulled cash out of his pocket. Buckley told him to put his money away. Buckley testified that Livsey randomly talked about his girlfriend and how she was mad at him, and that their conversation ended there. Buckley then testified that on January 13, 1999, he was helping his mother repair a water faucet in her house, and he did not know what Livsey was doing at his house that day. He denied that his voice can be heard on the January 13, 1999, tape recording, and that Livsey did not go into his house that day. Buckley denied ever seeing the pill bottle or other drug evidence seized from his house.

The defense next presented Jezeree Buckley, the defendant’s mother, who testified that Buckley was in her house fixing a faucet on January 13, 1999. Paul Buckley, Buckley’s nephew, testified that he was playing basketball on January 13, 1999, and briefly conversed with Livsey and Buckley, and then noted that Buckley went into his mother’s house to fix her faucet. The defense also questioned several witnesses who had purchased clothes and other items Buckley sold out of his house and car for his retail business. Talesha Howard, a friend of Buckley’s, testified that she was at the house on January 12, 1999, when Livsey came in, and that she did not see any drug transactions taking place while she was there.

The defense rested its case, and the State requested to present rebuttal testimony to counteract testimony from Buckley. The trial court rejected this request. Buckley then renewed his motion for directed verdict, arguing again that the evidence failed to establish a connection to his client and that the State failed to meet its burden of proof. Buckley also renewed his motion for a mistrial based on the jury situation. The trial court denied both motions.

Before the jury retired to deliberate, the court released the alternate juror from duty because she would not be involved in deliberations. After deliberations, the jury returned with a guilty verdict on both counts, and the court moved to the sentencing stage of trial. Before the witnesses testified, the defense objected to the State using certain hearsay and character evidence against Buckley, arguing that the evidence the State wanted to use would be hearsay evidence presented by the police officers and that hearsay was not proper. The State responded that statutory and case law allowed character evidence to be used against Buckley at this stage in the proceedings, and the trial court overruled Buckley’s objection.

The State first questioned Officer Ray, who testified that during the eight years he had been with the Drug Task Force, he had investigated Buckley for distributing crack cocaine. Ray testified that several confidential informants had made “buys” from Buckley in 1988, 1994, 1995, and 1996. Ray testified that Buckley was never convicted, however, because the confidential informants failed to appear so that Buckley could be prosecuted. On cross-examination, the defense further questioned Ray about the 1988 arrest which occurred before Ray was a member of the Drug Task Force. Ray admitted that Buckley had never been convicted of a drug-related crime before this case, and that the State had never been able to prosecute or charge Buckley for any of these alleged crimes.

Buckley presented witnesses, including Summerville, Sr., who testified that Buckley helped him “kick” a drug habit, and Buckley’s wife, Denise, who testified about her husband’s good character. Buckley also testified about growing up in Arkadelphia and living in Houston. He admitted that he used to have a drug problem, but that he got help and was able to overcome his habit.

At the close of the evidence, the defense again renewed its motion for a mistrial and for a directed verdict. The court noted these objections for the record. The parties then went through the jury instructions, at which time the defense presented AMCI 9001 to allow alternative sentencing for this case. The State objected to this instruction, arguing that there were two Class Y felonies at issue, that Buckley had threatened someone’s life, and that an alternative form had to be filled out for such a sentence. The alternative sentencing allowed probation for these particular crimes. The trial court refused to give the instruction stating, “Yes, based upon the evidence and the fact that these are two Class Y felony charges.” The court also noted the defense’s objection to the refusal of the instruction.

At the close of the sentencing stage of trial, the jury sentenced Buckley to two life sentences for these first offenses. The trial court then ordered that the sentences should run consecutively, and entered the Judgment and Commitment Order on May 27, 1999. Buckley timely filed his notice of appeal on June 23, 1999. It is from these convictions that Buckley appeals.

Standard of Review

A trial court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed absent an abuse of discretion. Ark. Code Ann. § 16-97-101(2) (Supp. 1997); Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992); Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). The decision to order a mistrial and retry a criminal defendant lies within the sound discretion of the trial judge, and will be upheld absent an abuse of discretion. Phillips v. State, 338 Ark. 209, 992 S.W.2d 86 (1999); Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991). The trial court should resort to a mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996). A jury is presumed to be unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993); McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). It is for the trial court to decide whether the jurors are qualified, and that finding will not be reversed absent a showing of abuse of discretion. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Cooper v. State, supra; Franklin v. State, supra; McFarland v. State, supra.

Buckley raises four issues on appeal. First, Buckley argues that the trial court erred at the sentencing stage of trial in admitting hearsay testimony regarding alleged prior drug-related activity by Buckley for which he was never tried or convicted. Second, Buckley argues that the trial court erred in refusing to grant a mistrial when the sole remaining African-American juror requested to be dismissed from the jury because she was concerned about information she knew about Buckley’s neighborhood. Third, Buckley argues that the trial court erred in refusing to consider the possibility of probation for which such a defendant could be eligible under the sentencing statutes. Finally, Buckley argues that his two consecutive fife sentences constitute cruel and unusual punishment in violation of the Arkansas and United States Constitutions. We agree with Buckley’s first point on appeal and reverse.

Admission of Hearsay at Sentencing Stage

In his first argument on appeal, Buckley argues that the trial court erred in allowing hearsay testimony to come in during the sentencing stage of the trial. In particular, Buckley objected to testimony from the State’s witness, Keith Ray, who testified regarding alleged prior drug activity of Buckley, for which Buckley was never charged, tried, or convicted. Ray testified that during the eight years he had been working with the Drug Task Force, the Task Force had had some of its confidential informants make controlled buys from Buckley in 1994, 1995, and 1996. Ray further testified that another controlled buy occurred in 1988 before he was a member of the Task Force. Furthermore, the State relied on this information in its closing argument during this stage of trial. Buckley notes that he objected to the admission of this evidence as hearsay evidence relating to Buckley’s character before the State questioned Ray about these previous controlled buys, but that the trial court overruled the objection on the grounds that in Ark. Code Ann. § 16-97-103 and supporting case law, including Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998), character evidence may be admitted at the sentencing stage of trial.

The State contends that evidence of Buckley’s prior drug activity was admissible under Ark. Code Ann. § 16-90-801 (a), § 16-97-101(2), and § 16-97-103(5) and (6). The State argues that Buckley’s prior drug activity is relevant under Nichols v. United States, 511 U.S. 738 (1994), where prior criminal behavior was deemed admissible even where no conviction resulted. Evidence of Buckley’s prior drug activity provided proof of his character and was relevant to the jury’s determination of an appropriate punishment. In addition, such evidence was relevant as an aggravating circumstance under § 16-97-103(6).

Buckley actually objected twice to the admission of the evidence — once in a pre-trial motion in limine, and again immediately before Officer Ray testified at the sentencing phase of trial. The trial court ruled on the motion in limine that the State could not present testimony that Buckley was a drug dealer at the guilt phase of the trial unless the defense raised thf issue of his character first, and this information was never revealed during the guilt phase of the trial. However, the trial court reserved its ruling as to the admissibility of this evidence at the sentencing phase. At the sentencing phase, however, the State’s only witness, Officer Ray, focused his entire testimony on the fact that Buckley had been under Task Force investigation since 1988, and that the Task Force had set up controlled buys from Buckley in 1988, 1994, 1995, and 1996. While Buckley objected on hearsay grounds to the admission of this type of evidence before Ray testified, the trial court ruled that it was admissible at the sentencing phase under Ark. Code Ann. § 16-97-103. The relevant portions of Ark. Code Ann. § 16-97-103 state:

Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following, provided no evidence shall be construed under this section as overriding the rape shield statute, § 16-42-101:
* * *
(5) Relevant character evidence;
(6) Evidence of aggravating and mitigating circumstances. The criteria for departure from the sentencing standards may serve as examples of this type of evidence;
(7) Evidence relevant to guilt presented in the first stage;
(8) Evidence held inadmissible in the first stage may be resubmitted for consideration in the second stage if the basis for exclusion did not apply to sentencing;

From this statute, it appears that certain evidence is admissible at sentencing which would not have been admissible at the guilt phase of the trial. Such is the holding, as well, in Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994) and Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998). As we noted in Hill, “The introduction of evidence during this stage must be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal.” Hill, 318 Ark. at 413. Flowever, the court also noted that once the jury has determined that the defendant is guilty, additional evidence, even evidence regarding attempted crimes, may be admissible if it gives the jury as much information as possible when it makes its sentencing decisions. Id.

Here, while evidence of prior sales by Buckley would certainly give the jury more information to make its sentencing decision, the evidence is still subject to the rules of evidence. The testimony at issue in Buckley’s objection occurred when Officer Ray testified about the prior drug buys. Ray’s reference to the 1988 drug buy, which occurred before he became a Task Force officer, would necessarily be hearsay because he did not have personal knowledge of the events. It is clear from Ray’s testimony that he gained his knowledge of the 1988 drug buy from reading a court docket. This is hearsay under Ark. R. Evid. 801, which states that hearsay is “a statement (oral or written)... other than the one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.” Moreover, Ray’s testimony regarding purported buys in 1994, 1995, and 1996 were similarly objectionable in that Ray demonstrated no first hand knowledge of the facts to which he testified.

In order to obtain reversal, Buckley must not only show that the trial court erred in its admission of hearsay but also show that the erroneous admission prejudiced him. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999); Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). Where the jury used this testimony to impose a punishment of two life sentences, we hold that prejudice has been demonstrated and accordingly reverse.

Denial of Mistrial

Buckley next argues that the trial court erred in refusing to grant his motion for mistrial based on the juror problem with Tillie Wilson. Buckley argues that he was placed in an untenable position in that Wilson was the only African-American juror on the jury and she wanted to be dismissed. To dismiss her, Buckley argues, would have rendered the jury without an African-American juror, but to keep her could have been just as problematic. Wilson indicated upon questioning that she had dropped off someone, whom she knew used drugs, in Buckley’s neighborhood. Buckley also argued that her dismissal would appear unusual to the other jurors and cause them speculation as to why she was dismissed.

The State counters that the trial court did not abuse its discretion in refusing to grant a mistrial because Wilson testified that she brought this information to the court’s attention in a show of honesty, and that Wilson indicated that she could continue to decide the case fairly on the facts presented at trial. In addition, any prejudice that may have existed could have been cured by using the alternate juror, whom the defense agreed upon. Furthermore, the State notes that Buckley neither raised a Batson challenge to the jury before it was finalized, nor does he now on appeal, although he argues about the race of the jurors.

In order to succeed on this point, Buckley must show that the trial court abused its discretion in failing to grant the mistrial, and he must show that there was prejudice in the trial court’s ruling on the issue of the juror and alternate. See, e.g., Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992); Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987). Here, the trial court presented Buckley with an option: retain Wilson on the jury or allow the alternate to replace her. Buckley argues that such a choice was not acceptable, but we disagree. First, it should be noted that there is no indication in the abstract or the record that Buckley opposed the seating of the alternate as a member of jury. Arkansas Code Ann. 16-30-102(a) (Repl. 1994) states in relevant part:

(b) Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examinations and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.
(c) Each opposing side shall be entided to one (1) peremptory challenge in addition to those otherwise allowed by law. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these rules by this section may not be used against an alternate juror.

Buckley’s failure to object to the alternate being seated, and his decision not to use the alternate instead of Wilson when he had a choice, renders this argument moot. First, Buckley cannot now argue that the alternate was not qualified when he did not object to the alternate’s presence on the jury. In other words, he did not have a problem with the alternate when she was seated; therefore, he did not preserve an objection to the alternate possibly sitting on the jury. Second, Buckley’s decision to continue with Juror Wilson appears to be one of trial technique or tactic in that his argued reason for deciding to retain Wilson was because he was afraid of the appearance and speculation the other jurors might make on such a change. Seating or exclusion of a juror may be a trial technique, see Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998) and Irons v. State, 272 Ark. 493, 615 S.W.2d 374 (1981) (noting, in dicta, that the seating of a juror may be a matter of trial strategy), and Buckley has not shown the jury in place was biased against him. We therefore affirm the trial court’s denial of a mistrial.

Alternate Sentencing Instruction

In his third argument, Buckley asserts that the trial court erred in refusing to consider the possibility of probation for delivery of cocaine, an alternative sentence available at the trial court’s discretion, under Ark. Code Ann. § 5-64-601 and § 5-4-104. The State responds first that although Buckley raises this point as error below, he does not request reversal on the issue, but instead requests that the court consider the issue here in case this appeal is reversed or remanded for sentencing. Furthermore, the State argues that the trial court did not abuse its discretion by mistakenly ruling that this alternative sentencing was not available for Buckley. Instead, the trial court decided that in this case, it would not present such an alternative to the jury based on the facts of the case. Finally, the State argues that Buckley cannot demonstrate prejudice, even if the trial court abused its discretion, because the trial court’s denial of an alternative sentencing measure indicates that the court was disinclined to consider alternative sentencing even if the jury had recommended it under the instruction.

The State concedes to Buckley’s argument that probation is an alternative sentence available for cocaine delivery offenses such as this under Ark. Code Ann. § 5-4-104(e)(l)(A), § 5-64-401(a)(l)(i), and § 5-4-301 (a)(1). Buckley argues that this form of alternative sentencing was made available in Act 192 of 1993, when the legislature removed certain language from the controlling statutes prohibiting such a sentence. However, the decision to allow alternative sentencing is reviewed for an abuse of discretion. Ark. Code Ann. § 16-97-101. On remand, the giving of an instruction regarding probation as an alternative sentence will be in the trial court’s sound discretion.

Disproportionate Sentencing

In his last point on appeal, Buckley argues that two life sentences for first-offense delivery of a controlled substance constitutes cruel and unusual punishment under the United States and Arkansas Constitutions. While Buckley concedes that this court has held that a sentence within the range of punishment for a crime cannot be reduced, he argues that the United States Supreme Court has held that it is the duty of the judiciary to determine whether the legislature has violated the Constitution with regard to proportionality of the sentence. Buckley argues that his sentence constitutes cruel and unusual punishment because his sentence is grossly disproportionate to the offense as to shock the moral sense of the community. We do not reach this argument in this case because we reverse on other grounds.

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Reversed and remanded.

ARNOLD, C.J., not participating.


source: Caselaw Access Project

author: LAVENSKI R. SMITH, Justice. GLAZE, J.,

license: Public Domain

text:
    MAY CONSTRUCTION COMPANY, Inc. v. The Honorable Morris THOMPSON, Judge
    00-364
    20 S.W.3d 345
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Morris Thompson, Judge;

      Grobmyer, Ramsay & Ross, by: Robert R. Ross, for petitioner.

      Robinson, Staley, Marshall &Duke, P.A., by: Robert L. Robinson, Jr., for respondent.
   LAVENSKI R. SMITH, Justice.

Petitioner May Construction Company (“May”) ice. this Petition for Writ of Prohibition in response to an order entered by the Pulaski County Circuit Court to compel discovery in an arbitration matter between May and Respondent Riverdale Development Company (“Riverdale”). May and Riverdale signed a contract for construction of a commercial office building on August 30, 1996. They included in the contract a term for mandatory binding arbitration for any breach-of-contract claims. As the project neared completion, May and Riverdale vigorously disputed each others performance adequacy in that contract. The issue presented by this case is whether, on the face of the record before us, the Circuit Court committed a plain, manifest, clear, and gross abuse of discretion in ordering May to comply with discovery requests in a civil action which was simultaneously pending in arbitration. We hold it did not and deny the writ.

On May 13, 1999, May filed a demand for arbitration with the American Arbitration Association, claiming that Riverdale had failed to pay approximately $33,000 owed under the contract. Riverdale responded by filing a complaint in the Pulaski County Circuit Court on May 25, 1999, alleging that May failed to perform certain requirements under the contract and also acted negligendy and deceitfully in the performance of the work and construction of the building. Riverdale followed this complaint with a Motion to Stay Arbitration filed on June 1, 1999. On that same day, the circuit court held a hearing on the motion by teleconference. The circuit court denied Riverdale’s Motion to Stay Arbitration in an order dated June 7, 1999. The court also stayed discovery in the circuit court action pending resolution of the arbitration proceeding. However, the circuit court’s order reserved the right to the court to compel discovery in the arbitration matter should the parties apply to the court and indicate that the arbitration discovery had become ineffective.

On June 21, 1999, May filed a Motion to Dismiss the circuit court complaint alleging that the complaint filed by Pdverdale in circuit court sought to litigate issues related to those in the arbitration proceeding, and that Riverdale’s response to and counterclaim in the arbitration request acted as an irrevocable election that rendered the pleadings in circuit court moot. Riverdale responded on June 30, 1999, and argued that while its Motion to Stay Arbitration was denied, the circuit court did not stay discovery in that lawsuit and would direct discovery upon application by either party during arbitration. The record and abstract do not indicate whether the circuit court ever ruled on this motion.

Under the auspices of the arbitrator, the parties initiated discovery. However, according to Riverdale’s pleadings, May failed to comply with repeated requests for certain discovery, thus requiring Riverdale to seek an order from the arbitrator on October 14, 1999, to compel discovery. The motion contained requests for specific documents, which Riverdale had previously requested but May had failed to provide. On November 1, 1999, Arbitrator Bill S. Clark granted Riverdale’s motion ordering May to provide all of the items requested in the motion. At Riverdale’s request, the arbitrator also issued a subpoena duces tecum to William “Bud” Oldner, a design engineer with Ruffin Building Systems (“Ruffin”) who May had hired. Following the issuance of the subpoena, Riverdale sent three letters to Ruffin’s attorneys requesting Oldner’s presence at a deposition and requesting the documents indicated in the subpoena. Apparently, Ruffin and Oldner ignored these requests and the subpoena.

Due to this failure to comply, Riverdale filed with the arbitrator a Motion to Dismiss or Alternatively for Sanctions on November 15, 1999, requesting May’s demand for arbitration be dismissed with prejudice for failure to comply with discovery and requesting sanctions for failure to comply with the arbitrator’s orders. Riverdale responded on December 1, 1999, contending it had no responsibility for Ruffin’s or Oldner’s failures to comply with the discovery requests. The record and abstract are devoid of any resolution to these motions. However, May contends in its brief that the arbitrator, at a hearing on January 20, 2000, refused to enforce his earlier order or subpoena based on the fact that Ruffin and Oldner were located in Louisiana and were outside of the arbitrator’s “jurisdiction.” May further contends that the arbitrator decided to allow Oldner to testify without producing the requested documents because Riverdale could have deposed Oldner in October, 1999. The record and transcript, however, do not contain any orders or transcripts of the arbitrator’s supposed ruling on this issue.

On January 21, 2000, Riverdale filed its Motion to Compel Discovery in the Pulaski County Circuit Court after May and Ruffin failed to comply with the previous orders and subpoenas from the arbitrator. Riverdale argued in its motion that May should not be allowed to recover the alleged breach damages, nor should Oldner or any other representative of Ruffin be allowed to testify for May at the arbitration hearing without producing the discovery requested of it or its suppliers to Riverdale. Riverdale also filed a Motion for Continuance in the arbitration on January 31, 2000, due to the pending motion in circuit court. May responded to this motion on February 2, 2000, arguing that the arbitrator had already denied essentially the same motion. Furthermore, May argued that Riverdale made the discovery requests to entities and people who were outside the court’s jurisdiction, and that the circuit court did not have the power to order discovery in the underlying matter because of the arbitration. May also argued that Riverdale’s motion was an attempt to delay the arbitration due to its own failure to properly perform permitted discovery in time before the arbitration hearing scheduled for February, 2000.

The circuit court held a hearing on February 3, 2000, on Riverdale’s discovery motion. Apparently, the circuit judge announced his ruling from the bench and then issued the orders, nunc pro tunc, on March 2, 2000, requiring May to comply with Riverdale’s discovery requests in the arbitration. Interestingly, the circuit court issued three orders on March 2, each requiring the parties to perform certain actions. Specifically, in the first order, the circuit court ordered that May was to collect and have available for inspection and copying all of its documents relating to the contract dispute within three days of the order, and that Riverdale could proceed at its option to redepose Oldner and to obtain relevant information from Ruffin. Alternatively, May would be barred from using information or testimony from Ruffin during the arbitration hearing if the information were not provided. Also, the circuit court ordered the arbitration stayed until May complied with that order.

In its second order, the court ordered Riverdale to file its Notice of Deposition of Oldner in that court and in the appropriate Louisiana court. The circuit court again ordered that May produce the requested documents, and also took under advisement Riverdale’s request to disqualify Ruffin’s representatives from testifying as well as Riverdale’s request that its Requests for Admissions be deemed admitted for May’s failure to timely answer them. The circuit court further noted that it retained jurisdiction over the parties and the subject matter to enforce the order, and the court stayed the arbitration proceeding pending resolution of the discovery dispute.

In its third order, which does not bear the court’s file mark, the court again ordered May to produce all requested documents and vendor files. The court then found that May had refused to answer Riverdale’s first Request for Admissions, and the court found that these requests were deemed admitted. Finally, the court again ordered that no representative from Ruffin could testify at the arbitration hearing until Ruffin furnished all of the requested documents. May then filed this Petition for Writ of Prohibition on March 24, 2000, and Riverdale responded on March 31, 2000.

Standard of Review

While May seeks a writ of prohibition in its petition, we will treat the petition as one for a writ of certiorari. A writ of prohibition will not lie for actions already taken. Oliver v. Pulaski County Circuit Court, 340 Ark. 681, 13 S.W.3d 156 (2000). We recendy reiterated the requirements for a writ of prohibition noted in Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000), where we stated:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will lie, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993); State v. Circuit Court of Lincoln County, 336 Ark. 122, 125, 984 S.W.2d 412, 414 (1999). We have further held that we do not issue a writ of prohibition for something that has already been done. Holmes v. Lessenberry, 297 Ark. 23, 759 S.W.2d 37 (1988) (per curiam).

The writ of certiorari, unlike prohibition, can address actions already taken by the lower court. As we noted in Arkansas Public Defender Comm. v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000), when circumstances warrant, the court will treat a petition for writ of prohibition as though it were correctly filed as a petition for writ of certiorari. There we stated:

We hold that although the Commission has sought a writ of prohibition, a writ of certiorari is the more appropriate remedy. A writ of prohibition cannot be invoked to correct an order already entered, and where, as here, the lower court’s order has been entered without or in excess of jurisdiction, we carve through the technicalities and treat the application as one for certiorari. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994). A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id.

Burnett, 340 Ark. at 236.

The court will grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Cooper Communities, Inc. v. Benton County Circuit Court, 336 Ark. 136, 984 S.W.2d 429 (1999).- It is not to be used to look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992).

Applicability of the writ

May argues in this appeal that the circuit court had no subject-matter jurisdiction to enter the orders respecting discovery or any other procedures then before the arbitrator. May notes that arbitration proceedings in Arkansas are governed by the Arkansas Uniform Arbitration Act, and argues that under the Act, the circuit court only acts as an appellate court. Furthermore, May argues that because there are no cases under this act in Arkansas discussing this jurisdictional question, review of the Federal Arbitration Act is warranted. May argues that under that Act, the federal courts have found that a trial court does not retain jurisdiction over the subject of the arbitration once that court determines that the matter is properly before the arbitrator.

Riverdale responds by arguing that the circuit court retained subject-matter jurisdiction to enter the March 2, 2000, orders. First, Riverdale notes that neither the parties’ contract nor the Arkansas Uniform Arbitration Act cover all possible contract disputes. Specifically, the circuit court retains jurisdiction of tort disputes and certain “aesthetic effect” contract claims. Therefore, since the tort claims remained in the circuit court, it continued to possess jurisdiction to enter the orders compelling discovery. Furthermore, the Act provides for just such motions to the circuit court in Ark. Code Ann. § 16-108-217, and the circuit court’s subject-matter jurisdiction is constitutional and cannot be limited by a statute.

The Arkansas Uniform Arbitration Act, found at Ark. Code Ann. § 16-108-201 et seq., outlines the proper procedures to arbitrate contract disputes. The scope of arbitration is defined by the contract between the parties, see Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996), and the Act contemplates the courts effectuating this agreement.

The Act describes the proper procedure to pursue arbitration. Under Ark. Code Ann. § 16-108-202, a party to a contract containing an arbitration clause may make an initial “application” to the court for the court to order arbitration. Ark. Code Ann. §16-108-202, § 16-108-217, and § 16-108-218 note that the proper “court” is a circuit or chancery court subject to the appropriate venue requirements. Upon application to the proper court, the party seeking to enforce the arbitration clause in the contract must produce the contract language allowing the arbitration, and the other party may make an “application” to oppose the arbitration if there is a “substantial and bona fide dispute” as to the validity or existence of an agreement to arbitrate. Ark. Code Ann. § 16-108-202(b). The court may determine whether the contract requires arbitration, and then may either order arbitration or refuse it. Ark. Code Ann. § 16-108-202(b). Furthermore, if a matter is pending in court, and an issue arises that should be referred to arbitration, Ark. Code Ann. § 16-108-202(d) further provides that

[a]ny action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section, or, if the issue is severable, the stay may be with respect thereto only. When the application is made in the action or proceeding, the order for arbitration shall include the stay. (Emphasis added.)

Once arbitration has begun, the Act confers certain powers on the arbitrators. In Ark. Code Ann. § 16-108-205(1), the Act provides that the court-appointed arbitrators

may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear. The court on application may direct the arbitrators to proceed promptly with the hearing and determination of the controversy; (Emphasis added.)

In addition, Ark. Code Ann. § 16-108-207(a) allows the arbitrators to

issue or cause to be issued subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence, and shall have the power to administer oaths. Subpoenas so issued shall be served, and upon application to the court by a party or the arbitrators, enforced, in the manner provided by law for the service and enforcement of subpoenas in a civil action. (Emphasis added.)

Furthermore, “on application of a party and for use as evidence, the arbitrators may permit a deposition to be taken, in the manner and upon the terms designated by the arbitrators, of a witness who cannot be subpoenaed or is unable to attend the hearing.” (Emphasis added.) Ark. Code Ann. § 16-108-207(b).

Interestingly, and most importandy to the issue presented in this case, Ark. Code Ann. § 16-108-216, entitled “Applications to court,” describes when applications can be made to the court in arbitration matters. This section states:

Except as otherwise provided, an application to the court under this subchapter shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action. (Emphasis added.)

Clearly, by the language in this statute, the legislature anticipated that the parties would make both the “initial application” to refer the matter to arbitration and other “applications” for additional matters to be heard by the overseeing circuit or chancery court. As noted in the emphasized language in the statutes cited above, “applications” may be made by a party to stay the arbitration proceedings (Ark. Code Ann. § 16-108-202(d)), by a party or the arbitrators to promptly proceed with the arbitration (Ark. Code Ann. § 16-108-205(1)), ■ and enforcing subpoenas issued by the arbitrators. (Ark. Code Ann. § 16-108-207(a)). Based on this language, it appears that the legislature anticipated that the circuit or chancery court that ordered arbitration could continue to have jurisdiction and some control in the proceedings in certain circumstances.

Here, May argues, in part, that Ark. Code Ann. § 16-108-217 specifically limits the court’s jurisdiction “to enforce the agreement under this subchapter and to enter judgment on an award thereunder.” We decline the invitation to adopt such a reading of the statute on this record.

The Act has been the subject of little review in our state appellate courts. The existing case law addresses an appellate court’s role in certifying a matter for arbitration or in reviewing a final arbitration decision, but does not address these sorts of “motion” or “application” disputes. Generally, as a matter of public policy, arbitration is strongly favored, and is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Anthony, 324 Ark. at 57; Lancaster v. West, 319 Ark. 293, 891 S.W.2d 357 (1995); Estate of Sandefur v. Greenway, 898 S.W.2d 667 (Mo. App. W.D. 1995). Once an arbitration is finalized with a decision by the arbitrators and appealed to the circuit or chancery court, the judiciary’s review is limited to vacating an arbitration award only on statutory grounds, unless the award is violative of a strong public policy. Anthony, 324 Ark. at 58; Stifel, Nicolaus & Co., 872 S.W.2d 484 (Mo. App. W.D. 1994); Lieberman v. Lieberman, 566 N.Y.S.2d 490 (Sup. 1991). If there is no case law and no compelling policy on an issue, provisions of the Uniform Arbitration Act should be construed consistent with the decisional law of other states which have adopted the Act. Heineman v. Charno, 877 S.W.2d 224 (Mo. App. W.D. 1994).

Because this court has not addressed this issue, it is proper to look to similar proceedings in other courts for guidance. The federal courts, pursuant to the United States Code, do allow a federal district court to retain authority to enforce orders by the arbitrator. See 9 U.S.C.A. § 7. While the federal system continues to debate whether simultaneous discovery may occur in both an arbitration proceeding and in district court, the federal statutes and case law offer persuasive authority for the proposition that the courts retain jurisdiction to enforce orders already issued by the arbitrator, which is the situation in the case now before this court. With the language in our Act conferring continuing jurisdiction on the overseeing court through the application process, and the support in the federal case law allowing a court to enforce an arbitrator’s order, it is not apparent here that there was a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or that the proceedings are erroneous on the face of the record. Cooper Communities, supra.

We hold, therefore, that the petitioner has fallen short of showing that there has been a plain, manifest, clear, and gross abuse of discretion without any other remedy such as appeal. On the record before us, we cannot say that the circuit court exceeded its jurisdiction by issuing orders to enforce the arbitrator’s discovery orders. Petition for Writ of Certiorari denied without prejudice.

BROWN, J., not participating.

Glaze, J., concurs.

GLAZE, J.,

concurring. I concur based solely upon the petitioner’s failure to show that the trial court exceeded its jurisdiction.

       The provisions in 9 U.S.C.A. § 7 are strikingly similar to those in the Arkansas Act, and several federal courts have determined that the district courts have the power to enforce orders already issued by the arbitrator. See, e.g, Western Emp. Ins. Co. v. Merit Ins. Co., 492 F.Supp. 53 (N.D. Ill. 1979). However, there is a continuing debate in the federal courts regarding whether the Federal Rules of Civil Procedure must be used in discovery to allow simultaneous discovery in arbitration proceedings and in the district courts, as the underlying reason for arbitration is to allow an informal and fast resolution of the parties’ disputes without the formality of the court system. See Int'l Assoc. of Heat and Frost Insulators and Asbestos Workers v. Leona Lee Corp., 434 F.2d 192 (5th Cir. 1970) (per curiam) (Court upheld district court’s retention of jurisdiction in arbitration proceeding and allowed discovery pursuant to federal discovery procedures); but see, Recognition Equipment, Inc. v. NCR Corporation, 532 F.Supp. 271 (N.D. Texas, Dallas Div. 1981) (District court, relying on Mississippi Power Company v. Peabody Coal Co., 69 F.R.D. 558 (S.D.Miss.1976), rejected use of Leona Lee finding that use of the Federal Rules of Civil Procedure in arbitration proceedings frustrates the underlying purpose of arbitration, but notes that “exceptional circumstances” would allow discovery under the federal rules).


author: PER CURIAM.

text:
    James HUTTS v. STATE of Arkansas
    CR 00-708
    20 S.W.3d 412
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Tatum, Tatum, and Riedel, by: John C. Riedel, for appellant.
    No response.
   PER CURIAM.

Appellant James Hutts, by and through his attorney, has filed a motion for rule on clerk. His attorney, John C. ■ Riedel, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Marcus THREADGILL v. STATE of Arkansas
    CR 00-758
    20 S.W.3d 412
    Supreme Court of Arkansas
    Opinion delivered July 13, 2000
    Arkansas Public Defender Comm’n, by: Latrece Gray, for appellant.
    No response.
   PER CURIAM.

Petitioner, Marcus Threadgill, by his attorney, IAM. Gray, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on her part.

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

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


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

text:
    Ricky Leon CRISP v. STATE of Arkansas
    CR 99-1218
    20 S.W.3d 394
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000
    [Petition for rehearing denied September 7, 2000.]

      Tommy J. Keith, Judge;

      Evans & Evans Law Firm, by: James E. Evans, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

On March 25, ustice. Ricky Leon Crisp, of two counts of second-degree murder in connection with the deaths of Crisp’s sixteen-month-old daughter, Vicky Crisp, and a four-month-old girl, Sidney Pippin. While babysitting the children on April 25, 1998, Crisp left the children unattended in his vehicle. Both children died of asphyxia as a result of excessive heat, also known as heat stroke. Crisp was charged with two counts of first-degree murder, pursuant to Ark. Code Ann. section 5-10-102(a)(3), given the victims’ ages. Alternatively, the State charged Crisp with causing the deaths “under circumstances manifesting extreme indifference to the value of human life” while committing either of two underlying felonies: (1) first-degree endangering the welfare of a minor, or (2) a felony controlled-substance crime. See Ark. Code Ann. § 5-10-102 (a)(1). Following his convictions for second-degree murder, Crisp was sentenced to fourteen years’ imprisonment in the Arkansas Department of Correction.

Crisp’s sole point on appeal challenges the sufficiency of the evidence supporting his second-degree-murder convictions. On cross-appeal, the State argues that the trial court erred by granting directed verdicts on two counts of felony murder. Specifically, the State seeks a declaration of error, rather than reversal, because it is “satisfied that the error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law” requires our review. See Ark. R. App. P. — Crim. 3(c) (2000).

The Court of Appeals certified this case for us to consider the State’s appeal in a criminal case and significant issues needing clarification or development of the law. Accordingly, our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. l-2(d)(l) and l-2(b)(5) (2000). First, we decline to reach the merits of appellant’s argument because he failed to properly preserve it for appeal. Consequently, Crisp’s convictions for second-degree murder are affirmed. Second, we affirm the trial court on the State’s cross-appeal.

I. Sufficiency of evidence

For his sole point on appeal, Crisp argues that the State failed to present sufficient evidence to support his convictions for second-degree murder. Ark. Code Ann. section 5-10-103(a)(l) states that a person commits murder in the second degree if he “knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” The culpable mental state of “knowingly” is defined in Ark. Code Ann. section 5-2-202(2). That section provides that:

A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result[.]

(Emphasis added.) In particular, Crisp asserts that the State failed to establish that he was “aware” or knew that his conduct was “practically certain” to result in the children’s deaths.

In response, the State maintains that we cannot reach the merits of appellant’s argument because he failed to preserve the issue for our review and failed to provide convincing argument or authority in support of his position. Indeed, to preserve an appellate challenge to the sufficiency of the evidence supporting a conviction for a lesser-included offense, a defendant must make a specific and timely objection at trial. See Ark. R. Crim. P. 33.1(c); see also Jordan v. State, 323 Ark. 628, 632, 917 S.W.2d 164, 165 (1996) (failure to question sufficiency of evidence for lesser-included offenses, either by name or by apprising trial court of offenses’ elements, constituted waiver).

Ark. R. Crim. P. 33.1(c) states that a defendant’s failure to challenge the sufficiency of the evidence at the close of the State’s case and at the close of all evidence, via a motion for directed verdict, will constitute a “waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.” A review of the record confirms that appellant failed to make timely, specific objections to the proof supporting the second-degree-murder offenses. In fact, at the close of the State’s case, appellant moved for directed verdicts only with respect to the first-degree-murder charges and the felony-murder charges.

After considering appellant’s motions, the trial court denied directed verdicts for the first-degree-murder charge and the felony-murder charge grounded on the allegation of endangering the welfare of a minor. However, the trial court granted a directed verdict as to the felony-murder charge relating to possession of a controlled substance. Ultimately, at the close of all evidence, the trial court granted appellant’s renewed motion for a directed verdict with respect to the remaining felony-murder charge. Consequently, the jury was instructed to consider the offenses of first-degree murder, and the lesser-included offenses of second-degree murder, manslaughter, and negligent homicide.

The only basis for finding that Crisp objected to a second-degree-murder charge arises from his discussion with the court at the close of the State’s case. Appellant professed that:

At this point there is nothing upon which a jury could go forward on any of the charges as currently existing before the Court. We would, therefore, Your Honor, move for a directed verdict on murder in the first degree, on a felony murder, Count I, possession, or actual possession of a controlled substance, and also on Count III, the endangerment of a child.

(Emphasis added.) However, Ark. R. Crim. P. 33.1(c) provides that “a motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.” Here, not only is appellant’s general objection insufficient to satisfy the requirements of Ark. R. Crim. P. 33.1(c), it is also clear that appellant intended to object only to the first-degree-murder charge and the felony-murder charges. In sum, appellant’s directed-verdict motion lacked the specificity required to preserve a challenge to the second-degree-murder charges.

Further, in light of appellant’s failure to specifically challenge the sufficiency of the State’s case for second-degree murder, the trial court had no opportunity to rule on the issue. Without a ruling from the trial court, we have no basis for a decision and we are precluded from reviewing Crisp’s argument. See Hood v. State, 329 Ark. 21, 26, 947 S.W.2d 328, 331 (1997). In light of the foregoing, we decline to reach the merits of Crisp’s appeal and we affirm his conviction.

II. Cross-appeal

In its brief on cross-appeal, the State argues that the trial court erred by directing a verdict on the felony-murder charge, with the underlying felony offense of endangering the welfare of a minor. However, a review of the record and the State’s supplemental abstract reveals that the State specifically filed its notice of cross-appeal pursuant to Ark. R. App. P. — Crim. 3(a)(2). Rule 3(a)(2) permits the State to take an interlocutory appeal from a pretrial order, entered in a criminal prosecution, that suppresses a defendant’s confession. Here, the State has no right to cross-appeal via Rule 3(a)(2). Accordingly, we affirm the trial court’s dismissal of the State’s felony-murder charge relating to endangering the welfare of a minor.


text:
    Marilyn K. WALLACE v. David HALE
    99-1396
    20 S.W.3d 392
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Christopher Charles Piazza, Judge;

      Charles F. Mills, for appellant.

      Bowden Law Firm, by: David O. Bowden, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The issue in this appeal stice. reserving his objections to jurisdiction and service of process and reserving the right to plead further in his original responsive pleading, the appellee “asserted” these defenses, as required by Ark. R. Civ. P. 12(b). We hold that appellee’s reserving of objections amounted to “asserting” the defenses, and we hereby affirm the trial court’s dismissal of this action.

Appellant, as executrix of the estate of Carrie Floy Rickett, sued appellee on a promissory note. That case was dismissed without prejudice because appellant failed to obtain service of process upon appellee within the time allowed under Ark. R. Civ. P. 4(i). Appellant refiled her action against appellee on January 19, 1999, and appellee answered the complaint on January 26, 1999, without process ever having been served upon him. Appellee’s answer included the following separate paragraph:

Defendant reserves the right to plead further and reserves objections on the basis of (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state facts upon which relief can be granted, and (7) failure to join a party under Rule 19, if any.

Service of process was admittedly never made upon appellee, and on May 26, 1999, appellee filed a motion to dismiss, contending that the time allowed for obtaining service of process upon him had elapsed and that he was therefore now entitled to an order of dismissal with prejudice. The trial court agreed and dismissed the case with prejudice in an order filed on August 24, 1999. This appeal followed.

As a sole point on appeal, appellant asserts that by filing an answer in which he simply reserved his objections to jurisdiction and service of process, rather than asserting these grounds as defenses, the appellee had submitted himself to the jurisdiction of the lower court by virtue of his answer, thereby waiving any objections he might otherwise have had. We disagree that appellee’s actions constituted a waiver of defenses and hold instead that said defenses were properly preserved by the appellee.

Appellant contends that neither Ark. R. Civ. P. 12(h) nor the case of Farm Bureau Mutual Insurance Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993), permits a defendant to reserve the right to plead further or to reserve objections which, under Rule 12(h), must be made prior to or be included in the original responsive pleading. In that case, the defendant specifically answered the complaint and at the same time reserved its objections to the court’s lack of jurisdiction and the plaintiffs’ insufficient service of process, just as the appellee did in the instant case. The trial court in Farm Bureau dismissed the case, finding that neither waiver nor estoppel applied; we affirmed the trial court therein, noting that in deciding whether a defendant has waived his rights and entered his appearanee, the determining factor is whether the defendant seeks affirmative relief, that is, whether the pleading filed is more than a defensive action. See Story v. Brewer, 232 Ark. 558, 339 S.W.2d 104 (1960). Just as in the instant case, the defendant in Farm. Bureau asked for no affirmative relief.

We further held in Farm Bureau that estoppel does not apply where the defect in the summons itself is so substantial as to render the process void. See Storey, supra. Here, as in Farm Bureau, the appellant admits that no service of summons whatever was made on the appellee; thus, estoppel simply is inapplicable iii these circumstances and will not be applied.

Rule 12(b) of the Arkansas Rules of Civil Procedure provides that every defense to a claim for relief in any pleading “shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (2) lack of jurisdiction over the person, ... (5) insufficiency of service of process.” (Emphasis added.) Rule 12(h), governing waiver or preservation of certain defenses, provides that a defense of lack of jurisdiction over the person or insufficiency of service of process “is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading.”

In this case, although service of process was admittedly never made upon appellee, the appellee filed an answer specifically reserving his objections to the jurisdiction of the person and the insufficiency of service of process. Then, after the time for service of process had expired, he elected to file a motion to dismiss based on these grounds, pursuant to Rule 12(b). We hold that appellee properly asserted these defenses and clearly preserved them under Rule 12(h) by including them in his original responsive pleading and by further filing a motion to dismiss once the time for service of process had expired. As such, we affirm the trial court’s dismissal.

Affirmed.


author: TOM Glaze, Justice.

text:
    Jannetta L. FUQUA and Beverly Hayes v. Dan FLOWERS
    00-230
    20 S.W.3d 388
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      John B. Plegge, Judge;

      McHenry & McHenry Law Firm, by: Connie Grace and Donna McHenry, for appellants.

      Robert L. Wilson and Mark J. Whitmore, for appellees.
   TOM Glaze, Justice.

This appeal arises from the trial court’s tice. complaint filed by Jannetta Fuqua and Beverly Hayes against Dan Flowers, Director of the Arkansas State Highway and Transportation Department, Francis Jones, a district sign foreman for the Department, and the Department itself (collectively referred to as ASHTD or the Department). Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (a)(1), as the appeal asks us to interpret the sovereign immunity provisions of the Arkansas Constitution. We find no error, and we affirm the trial court’s decision.

The facts underlying this case are straightforward. Fuqua and Hayes were driving on Arkansas State Highway 124 in Conway County about 9:50 p.m. on August 26, 1995. Fuqua had never driven on Highway 124 before, and she was unfamiliar with the road. As they approached the intersection of Highway 124 and Highway 9, there was no stop sign present, so Fuqua continued through the intersection. Unfortunately, however, Highway 124 was supposed to have a stop sign, and as Fuqua crossed Highway 9, her car was struck by one driven by Stephanie Ward. Fuqua and Hayes were both seriously injured, and Fuqua, who was six months pregnant, suffered a miscarriage.

The missing stop sign had been reported to the Arkansas State Highway and Transportation Department two days earlier, on August 24, by Tim Honeycutt, crew leader for that area. Earlier in the day on August 26, at approximately 12:20 that afternoon, there had been another accident at that same intersection.

Fuqua and Hayes filed suit against the Department in Pulaski County Circuit Court, alleging that the failure of the Department to replace the stop sign amounted to the tort of outrage, and asserting that the defendants’ actions constituted wanton and reckless disregard, “equivalent to malice,” of the plaintiffs’ safety. The defendants moved to dismiss the lawsuit pursuant to Ark. R. Civ. P. 12(b)(1) and (6), stating that the trial court lacked subject matter jurisdiction because of sovereign immunity and that the plaintiffs had failed to state a claim for relief. After a hearing, the trial court dismissed the complaint, finding that sovereign immunity barred the suit.

This court reviews a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). Significantly, a trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Id.; see also Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992).

The Arkansas Constitution, art. 5, § 20, expressly forbids suits against the state by declaring that “[t]he State of Arkansas shall never be made defendant in any of her courts.” In addition, when a suit is filed against employees of the state, Ark. Code Ann. § 19-10-305(a) (Supp. 1999) provides them with immunity from civil liability for non-malicious acts occurring within the course of their employment. Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986). To determine whether a suit against a state agency or a state employees is in reality a suit against the State, the court has employed the standard set out in Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938):

[W]here a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent.

Beaulieu, 288 Ark. at 398, 705 S.W.2d at 881 (quoting Page, supra).

Fuqua and Hayes sued the Department, an agency of the State, and Flowers and Jones in their capacities as employees of the State; as plaintiffs, they sought damages in the amount of $100,000 each. Thus, there can be no question that this is a suit against the State, its officers and employees.

As already discussed, however, sovereign immunity presents a complete bar to suits against the State. See Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997) (doctrine of sovereign immunity .is “rigid and . . . may be waived only in limited circumstances”), and, under § 19-10-305(a), state officers and employees are statutorily protected by sovereign immunity. More particularly, this court has held that such officers and employees acting without malice within the course and scope of their employment are immune from an award of damages in litigation. Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999). Thus, for a plaintiff to counter an assertion of sovereign immunity, he or she must allege sufficient facts in his or her complaint to support the claim of malicious conduct by the defendant. Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998). It is this exception for malicious acts on which Fuqua and Hayes attempted to base their complaint, as they alleged that the Department knew, or should have known, that its failure to replace the stop sign could naturally and foreseeably result in death or serious bodily injury through automobile accidents.

This court, however, has defined malice as something more: “It is true that in law malice is not necessarily personal hate. It is rather an intent and disposition to do a wrongful act greatly injurious to another.” Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 185, 485 S.W.2d 192, 195 (1972); see also Stine v. Sanders, 66 Ark. App. 49, 987 S.W.2d 289 (1999). Malice is also defined as “the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. ... A conscious violation of the law . . . which operates to the prejudice of another person. A condition of the mind showing a heart . . . fatally bent on mischief.” Black’s Law Dictionary, 956-57 (6th ed. 1990). Although the complaint alleges an evil intent in the acts or omissions of the Department, a bare allegation of willful and wanton conduct will not suffice to prove malice. Beaulieu, 288 Ark. at 399, 705 S.W.2d at 882.

Further, the two women seem to have modeled their complaint after tort-of-outrage language alleged in Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992), in which this court held that intentional torts overcome the immunity extended to State officers and employees. The court in Deitsch stated that summary judgment was improper in an outrage suit against a school district because the complaint “recited more than mere conclusory allegations [.]” Deitsch, 309 Ark. at 406, 883 S.W.2d at 762. In that case, a group of plaintiffs including teachers and students filed a complaint alleging outrage and negligence against the Rogers School District #30 and the school board, alleging that the school knew or should have known of the presence of friable asbestos in Westside Elementary School, and failed and refused to correct the condition and to protect the students and staff from the dangers of exposure. The school district moved for summary judgment, contending that they were statutorily immune from suit, and the trial court granted the motion.

This court disagreed and reversed the trial court, based on the facts as alleged in the plaintiffs’ complaint. The plaintiffs in Deitsch had asserted that the school knew of the presence of asbestos and of specific rules and regulations regarding its removal, and they cited the particular federal and state standards dealing with that subject. Further, the complaint stated that the school had “knowingly misrepresented and/or concealed the dangerous asbestos condition ... in order to induce the school employees and students to attend and work at the school.” Id. (Emphasis added.) These factual allegations compelled the result in Deitsch. The Deitsch court stated that the plaintiffs did not allege simply that the conduct of the defendant school district and its officers and employees was “outrageous” or “willful and wanton,” but that the defendants purposefully deceived the plaintiffs as to the condition of the asbestos, in order not to disrupt school routine. Id.

In the instant case, Fuqua and Hayes argue that they have alleged sufficient facts to support their claim for outrage, and indeed, their complaint does assert that the defendants violated federal and state highway safety statutes. However, in order to sustain an outrage claim, a plaintiff must prove the following four elements, most recently stated in Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000):

... (1) [T]he actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”; (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996). This court gives a narrow view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). Merely describing the conduct as outrageous does not make it so. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Croom, 323 Ark. 95, 913 S.W.2d 283.

Crockett, 341 Ark. at 564. See also Travelers Ins. Co. v. Smith, 338 Ark. 81, 991 S.W.2d 591 (1999); Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997); Brown v. Fountain Hill Sch. Dist., 67 Ark. App. 358, 1 S.W.3d 27 (1999).

The difference between the women’s complaint and that in Deitsch is that the conduct complained of here lacks the kind of intentional conduct that was present when the school district knowingly misrepresented the condition of the asbestos in order to induce the students and staff to attend that school. Here, no action was taken intentionally to misrepresent or conceal a dangerous condition, and there was no proof of any intent to cause harm. The failure of the Department to replace the stop sign was arguably negligent, and perhaps it should have known that an accident was likely if the stop sign was not replaced. Nonetheless, the conduct does not meet the standard of being “extreme and outrageous” and “utterly intolerable in a civilized society,” as it must to sustain a claim for outrage.

Ultimately, because Fuqua and Hayes were unable to demonstrate that the defendants acted maliciously, sovereign immunity bars the suit, and the trial judge properly granted the defendants’ motion to dismiss. However, we do note that the two women are not entirely without a remedy. The State Claims Commission exists to provide relief in the event of a claim against the state and its agencies. See Ark. Code Ann. § 21-9-201 et seq. (Repl. 1996 and Supp. 1999);, Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990) (Commission has exclusive jurisdiction over all claims against the state and its agencies, departments and institutions).

For the reasons above, we affirm.

Corbin, J., not particpating.

       Fuqua and Hayes had previously filed suit in federal district court, asserting that ASHTD had violated their civil rights and their substantive due process rights; the federal court dismissed that complaint with prejudice. An ancillary state claim for outrage was dismissed without prejudice.

       Although the appellants argue that the trial judge considered matters outside the pleadings in reaching his decision, thus requiring us to review this as though it were a motion for summary judgment, the record fails to support this contention.


author: TOM Glaze, Justice. RAY THORNTON, Justice,

text:
    STATE of Arkansas v. Fred SMITTIE, Jr.
    CR 00-245
    20 S.W.3d 352
    Supreme Court of Arkansas
    Opinion delivered July 7, 2000

      Marion Humphrey, Judge;

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellant.

      Bill Luppen, for appellee.
   TOM Glaze, Justice.

The State brings this appeal pursuant ice. App. P. — Crim. 3(b)-(c), and argues the trial court erred by accepting the guilty plea of appellee Fred Smittie, Jr., when the prosecuting attorney did not consent to the plea and instead requested a jury trial. Because this case involves an issue that implicates the correct and uniform administration of the criminal law, we accept the State’s appeal. See State v. Singleton, 340 Ark. 710, 13 S.W.3d 584 (2000); State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 457 (1997).

Smittie, Jr. was charged with three counts of delivery of a controlled substance and one count of using a communication facility, a pager and telephone, in the commission of felony deliveries. He initially pled not guilty, and later changed his plea to guilty. Citing Ark. R. Crim. P. 31.1, the prosecutor objected to Smittie’s entering a guilty plea. The prosecutor also requested a jury trial. The trial court overruled the prosecutor’s objection, accepted Smittie’s guilty plea, and subsequently sentenced Smittie to five years’ probation and a $500.00 fine. After the trial court entered its conviction judgment in the matter, the State filed this timely appeal. The sole issue on appeal is whether the trial court erred by allowing Smittie to plead guilty over the State’s objection.

The State correctly cites our cases of Singleton, Vasquez-Aerreola, and Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), as controlling on this issue. In these decisions, this court was called upon to interpret Rule 31.1, which provides that no defendant in any criminal cause may waive a jury trial unless the waiver is assented to by the prosecuting attorney and approved by the court. In interpreting Rule 31.1, this court held that the trial court has no discretion to accept a defendant’s guilty plea to a felony over the prosecuting attorney’s objection. In Fretwell, the court explained the rule as follows:

The rule is clear. Criminal cases which require trial by jury must be so tried unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two requirements are mandatory before the court has any discretion in the matter. Here, the second requirement, assent by the State, was not had and the court was without discretion to allow the plea.

Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). Smittie is well aware of this court’s holding in Fretwell, Vasquez-Aerreola, and Singleton, but he asks us to overrule those decisions. We decline to do so.

Smittie largely disagrees with the court’s prior decisions, saying that a prosecutor should not be allowed to use Rule 31.1 to prevent him from exercising his constitutional right to waive a jury trial simply because the prosecutor does not want a trial court to sentence him. However, precedent authorizes such procedures, and Smittie offers no authority to the contrary. In Singer v. United States, 380 U.S. 24 (1965), the Court stated the following:

In light of the Constitution’s emphasis, on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury the very thing that the Constitution guarantees him. (Emphasis added.)

This court’s decisions interpreting Rule 31.1 to hold that a trial court is without discretion to accept a guilty plea unless the prosecuting attorney assents are based on longstanding authority. Smittie offers no sound argument or legal citation to compel (or even suggest) that we should depart from that precedent. Therefore, we reverse and remand this case with directions to vacate Smittie s guilty plea, so a jury trial may be held.

Arnold, C.J., Thornton and Smith, JJ., concur.

RAY THORNTON, Justice,

concurring. The majority opintcorrectly ice, our Ark. R. Crim. P. 31.1 provides that “[n]o defendant in any criminal cause may waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court.” Recognizing that conviction and sentencing by jury is required for the imposition of the death penalty, we have also adopted Ark. R. Crim. P. 31.4, which provides in appropriate part:

No defendant charged with a capital felony may waive either trial by jury on the issue of guilt or the right to have sentence determined by a jury unless:
* * *
(b) the prosecuting attorney, with the permission of the court, has waived the death penalty...[.]

Id. These rules conform to our decision in Fretwell v. State, 289 Ark. 91, 708 S.W.2d 603 (1986), where we held that a defendant could not avoid the possible imposition of the death penalty by pleading guilty and waiving his right to a jury trial without the assent of the prosecutor and the approval of the court. Id.

We have extended Rule 31.1 to prohibit the waiver of a jury trial without the assent of the prosecutor in a case where a jury trial was not essential for the imposition of all appropriate sentences. See State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 457 (1997). Then in State v. Singleton, 340 Ark. 701, 13 S.W.2d 584 (2000), we extended the reach of the prosecutor’s veto power over a waiver of a jury trial to a power to block a plea of guilty. The State has no constitutional right to a jury trial. See Singleton, supra. Yet the State has far more than the right to require a jury trial. It can withhold from an accused the traditional right to enter a guilty plea.

By these precedents, we are invalidating the forms prepared by our Administrative Office of the Courts, and distributed for many years to all trial judges, containing the statement that “if you are guilty you may plead guilty and the court will decide your sentence.” This instruction to trial judges, while flying in the face of our recent decisions, remains a reasonable statement of what the law should be.

We now have adopted bifurcated procedures that allow a determination of guilt in a guilt phase to be followed by a sentencing phase in which an appropriate penalty is imposed. Under Rule 31.4, no guilty plea can be entered in a capital murder case without the assent of the prosecuting attorney and the approval of the court. However, in all other cases, I believe that our Rule 31.1, and the cases interpreting our rule, should allow a guilty plea at the guilt phase to be followed by the imposition of an appropriate penalty in the sentencing phase. Following a guilty plea, the defendant should be allowed to waive his right to a jury trial for sentencing with the assent of the prosecuting attorney and the approval of the court. The prosecutor should not have the right to deny a guilty defendant the right to plead guilty during the guilt phase. The prosecutor’s right to veto a waiver of trial by jury under Rule 31.1 should be limited to the penalty phase. In my view, our rules lead us to an untenable result, and we should revise those rules.

For these reasons, I must respectfully concur.

I am authorized to state that Arnold, C.J., and Smith, J., join in this concurrence.