author: ANNABELLE Clinton Imber, Justice. GLAZE, J. ROBERT L. Brown, Justice,

text:
    AMERICAN CIVIL LIBERTIES UNION of Arkansas v. STATE of Arkansas
    99-00335
    5 S.W.3d 418
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Jeff Rosenzweig, for appellant.

      'Mark Pryor, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee State of Arkansas.

      Mark J. Mobley, for appellee James Stanley.
   ANNABELLE Clinton Imber, Justice.

On November 9, ice. appellee James Ray Stanley pled guilty in Sebastian County Circuit Court to rape and sexual solicitation of a child. Both of Mr. Stanley’s victims were boys under the age of fourteen. Based on a plea agreement that Mr. Stanley reached with the State, the court sentenced Mr. Stanley to thirty years in the Arkansas Department of Correction on the rape charge and six years on the solicitation charge, with the sentences to run concurrently. On the rape charge, the trial court ordered ten years of the thirty-year sentence suspended, conditioned upon Mr. Stanley submitting to physical castration and also completing the sexual offender (RSVP) program at the Department of Correction and attending sexual offender counseling after release from the Department of Correction. These conditions were part of the plea agreement that Mr. Stanley negotiated with the State. With regard to the requirement of castration as a condition of the suspended sentence, Mr. Stanley requested castration along with counseling in return for a lighter sentence and as the best possible cure for his condition. The sentences pronounced by the trial court on November 9, 1998, are reflected in a judgment and commitment order entered on November 19, 1998.

On December 2, 1998, the American Civil Liberties Union of Arkansas, Inc. (“ACLU”) filed a motion for leave to intervene in Mr. Stanley’s case, seeking to have the condition of castration set aside as unconstitutional and illegal. After the trial court conducted a hearing on the ACLU’s motion to intervene, it denied the motion on the ground that the ACLU lacked standing. The ACLU now appeals that ruling by the trial court.

On appeal, the ACLU argues that the trial court erred in finding that it lacked standing to intervene in Mr. Stanley’s criminal case. Alternatively, the ACLU urges this court to exercise its superintending control over inferior state courts in order to reach the merits of this case. Finally, the ACLU asks this court to declare thát, when imposed as punishment, castration violates the Eighth and Fourth amendments of the United States Constitution and Article 2, Sections 9 and 15, of the Arkansas Constitution, and is not authorized by Arkansas law.

With regard to the ACLU’s first argument, it is a well-settled principle of law that the requirements for “next-friend standing” must be met before a third party may be allowed to intervene in a criminal matter. Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). The requirements for next-friend standing are twofold.Id. First, the petitioner must show that he or she qualifies as a “next friend.” Id. That is, the petitioner who claims to be a next friend must have some significant relationship with the real party in interest. Id.; Whitmore v. Arkansas, 495 U.S. 149 (1990). There is nothing in the record to suggest the existence of any relationship, much less a significant relationship, between Mr. Stanley and the ACLU. Accordingly, the first requirement for next-friend standing has not been met. The second requirement for next-friend standing is that the person on whose behalf the petitioner seeks to act must be incompetent. Franz, supra. Again, there is nothing in the record to indicate that Mr. Stanley is incompetent. It is, therefore, clear that the requirements for next-friend standing have not been met by the ACLU in this case.

The ACLU virtually concedes that it does not meet the next-friend standing requirements set out in Franz. Nevertheless, it suggests that because Franz involved a defendant who was sentenced to death, which is a legal and constitutional sentence, and this case involves castration, which the ACLU asserts is illegal and unconstitutional, we should “prudentially relax [our] otherwise restrictive standing rules.” In other words, the ACLU requests that we relax our standing rules because this case involves an illegal sentence. The ACLU is putting the cart before the horse, by assuming a certain ruling on the merits in order to justify a more relaxed, or nonexistent, standing requirement. As a general rule, we will not reach the merits of a case unless an appellant has standing. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). We have recognized only one exception to that general rule. In Franz, supra, a Catholic priest who counseled inmates at the Department of Correction petitioned to intervene as a next friend after Mr. Ronald Gene Simmons was convicted of capital murder and sentenced to death. The Reverend Louis J. Franz asked for a stay of execution and asked that we make appeal mandatory in death cases. Franz, supra. Although we held that the Reverend Franz did not have standing as a next friend, we proceeded to consider the merits of that case. Franz, supra. Our reason for doing so was clearly stated: “ ‘[T]he penalty for death is different in kind from any other punishment imposed under our system of criminal justice.’ Gregg v. Georgia, 428 U.S. 153, 188 (1976). Because of the punishment’s uniqueness and irreversibility, we choose to state clearly the law in Arkansas regarding the waiver of appeal in death cases.” Franz, supra. Under the very limited circumstances presented by the Franz case, including the fact that it dealt with the death penalty, we chose to disregard a lack of standing and reach the merits of the case. The ACLU now asks us to also disregard a lack of standing in the case of a suspended sentence that is conditioned in part upon castration. We decline to do so because such a sentence does not involve the unique and irreversible penalty of death, which is different in kind from any other punishment. Standing must remain a strong threshold requirement where third parties seek to intervene in lawsuits.

Finally, the ACLU contends that we should exercise our superintending control over all inferior courts of this state in order to reach the merits of this case. Article 7, section 4, of the Arkansas Constitution provides in pertinent part:

The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions as from time to time may be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus, and quo warranto, and, other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.

Likewise, Arkansas Code Annotated section 16-10-101 (a) (Repl. 1994) states that:

The Arkansas Supreme Court shall have general superintending control over the administration of justice in all courts of the state of Arkansas. The Chief Justice of the Supreme Court shall be directly responsible for the efficient operation of the judicial branch and of its constituent courts and for the expeditious dispatch of litigation therein and the proper conduct of the business of the court.

While we have never specifically defined the boundaries of our “superintending control” under Article 7, section 4, of the Arkansas Constitution, we have cited that constitutional provision in several cases. See e.g. Simpson v. Sheriff of Dallas County, 33 Ark. 277, 968 S.W.2d 614 (1998) (Article 7, section 4, of the Arkansas Constitution confers on the supreme court the authority to entertain and grant petitions for writs of habeas corpus filed originally in the supreme court); Comm, on Judicial Discipline/Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990) (power is given to the supreme court by Ark. Const, art. 7, § 4, to supervise lower courts, but nothing is said about supervision of an agency such as the commission); State v. Howard, 251 Ark. 551, 473 S.W.2d 443 (1971) (petition for certiorari granted to review allegations that the respondent was improperly and unconstitutionally elected as special judge of the circuit court); Robinson v. Robinson, 218 Ark. 526, 237 S.W.2d 20 (1951) (reliance upon our power of superintending control over trial courts to transfer case to a different division of Pulaski County Chancery Court); Levy v. Albright, 204 Ark. 657, 163 S.W.2d 529 (1942) (writ of seizure issued by judge of the supreme court quashed because the writs mentioned in Ark. Const, art. 7, § 4, have no relation to search and seizure warrants). However, we have never relied upon our superintending control over the courts of this state in order to reach the merits of a criminal case, and we will not do so now. Article 7, section 4, of the Arkansas Constitution is not so broad that it gives a third party the right to intervene in the merits of a criminal case against another person.

Because we hold that the trial court properly concluded that the ACLU lacked standing to intervene in Mr. Stanley’s criminal case, we do not reach the merits of the ACLU’s underlying claim that castration as punishment for crime violates the United States and Arkansas Constitutions arid is not authorized by Arkansas law.

Affirmed.

Brown and Thornton, JJ., dissent.

Glaze, J., concurs.

GLAZE, J.

concurs, but disagrees with the majority opinJ. analysis of Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), where it submits the Franz court disregarded ACLU’s lack of standing to reach the merits of the case because the case involved the death penalty. The Franz court was able to reach the merits because the defendant, Ronald Gene Simmons, appeared and made a formal response on the issues decided. See State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999), Glaze,J. dissenting.

CORBIN and Smith, JJ., join in this concurrence.

ROBERT L. Brown, Justice,

dissenting. The court today stice, of whether a court-ordered castration should be allowed to take place. A surgical castration will now be performed on James Stanley, even though the General Assembly has not authorized this procedure which, in the absence of legislative approval, is plainly illegal. Castration by the government is a procedure which is fraught with historical, moral, social, medical, and penal implications and overtones. This court should not approve the procedure by judicial silence, but should confront the issue head on.

According to my research, one state specifically permits surgical castration of sex offenders, which is generally defined as the surgical removal of the testes. That state is Texas, which enacted its law in 1997. See Tex. Gov. Code. Ann. § 501.061 (West 1998). The Texas statute provides that certain procedures must be followed, including a specific, written request by the offender and a psychological examination prior to the surgery. Four other states authorize chemical hormonal treatment by statute to reduce or eliminate the sex drive and add that these provisions will not apply if the offender voluntarily undergoes surgical castration. See Fla. Stat. Ann. § 794.0235 (Supp. 2000); Cal. Penal Code § 645 (Deering 1998); Iowa Code Ann. § 903B.1 (Supp. 1999); and La. Rev. Stat. Ann. § 15:538 (Supp. 1999). Two states, Georgia and Montana, authorize hormonal chemical treatment by statute and do not cite surgical castration as an alternative. See Ga. Code Ann. § 42-9-44.2 (Michie 1997) and § 16-6-4 (Michie 1999); Mont. Code Ann. § 45-5-512 and § 46-18-201 (West 1999). In each of these jurisdictions, chemical or surgical castration has been authorized by legislative act.

Stanley argues in his brief that surgical castration falls within the category of “available medical or psychiatric treatment,” which the General Assembly does permit a trial court to require as a condition of a suspended sentence. See Ark. Code Ann. § 5-4-303(c)(4) (Supp. 1999). I disagree. Surgical removal of the testes is a unique and permanent punishment, pure and simple, which the General Assembly should expressly authorize before it is used by our trial courts. To argue that the General Assembly was aware that this language would include surgical castration is ludicrous.

I agree that the ACLU does not have standing in this case. That, however, should not decide this matter because the result of the majority’s decision is to allow the castration to proceed. In Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), a waiver of appeal in a death case was the issue before this court. A Roman Catholic priest sought to appeal the death sentence on behalf of Ronald Gene Simmons. We held that he had no standing to do so, but we then went forward and reviewed the matter. We said:

Because of the punishment’s uniqueness and irreversibility, we choose to state clearly the law in Arkansas regarding the waiver of appeal in death cases.

Franz, 296 Ark. at 186, 754 S.W.2d at 842. Surgical castration is also unique and irreversible. In addition, unlike the death sentence, it is not a penalty authorized by the laws of this state. As we did in Franz, this court should state clearly what the law regarding castration is.

The Supreme Court of South Carolina had a similar case in 1985. See Brown v. South Carolina, 326 S.E.2d 410 (S.C. 1985). In Brown, three defendants all agreed to surgical castration in exchange for reduced prison sentences. All three waived appeals. The matter, nevertheless, was reviewed by the South Carolina Supreme Court, and in a per curiam opinion, the court summarily reversed the sentences for violation of the state’s public policy as derived from the state constitution, legislative statutes, and judicial opinions. The court concluded that the sentences were illegal and void as cruel and unusual punishment and mutilation, and remanded the matter for resentencing. The issue of standing was not even discussed. In South Carolina, at least, there was recognition of the severe public policy implications of allowing surgical castration to proceed when there is no authority for doing so.

Before this court wades into such treacherous waters, it should be assured that due consideration has been given to all of the ramifications. It should also be convinced that proper procedures and standards are in place to accomplish the castration. A few questions that ought to be considered are obvious:

• Should the General Assembly consider chemical hormonal medications as an alternative to surgical castration?
• Should the defendant be given a psychological examination before agreeing to castration, as is done in Texas?
• What steps have been taken to assure that the defendant’s consent to castration is an informed consent?
• What is the potential liability of the surgeon who performs the castration?
• If castration is deemed “treatment,” must it be made available to other sex offenders who are currendy incarcerated?
• Castration may be a cheaper alternative to long term incarceration, but which is the more effective deterrent? (Apparently, surgical castration may not completely eliminate the sex drive in all cases.)
• What safeguards are in place to protect against abuse?

See generally J. Michael Bailey, The Science and Ethics of Castration: Lessons from the Morse Case, 92 Nw. U. L. Rev. 1225 (1998); William Winslade, Castrating Pedophiles Convicted of Sex Offenses Against Children: New Treatment or Old Punishment?, 51 SMU L. Rev. 349 (1998); Kari A. Vanderzyl, Castration as an Alternative to Incarceration: An Impotent Approach to the Punishment of Sex Offenders, 15 N. III. U. L. Rev. 107 (1994).

Surely society as a whole through its representatives in the General Assembly should have an opportunity to consider whether surgical castration of sexual offenders or hormonal chemical treatment is desirable before the trial courts weigh in and begin authorizing the procedure. To allow the bartering of body parts for reduced prison time is a grave matter and warrants thorough scrutiny.

I would stop castrations in this state until the General Assembly has had a full opportunity to consider and approve the procedure. For these reasons, I dissent.

Thornton, J„ joins.


source: Caselaw Access Project

author: ANNABELLE Clinton Imber, Justice.

license: Public Domain

text:
    Wayne and Sylvia FRALEY, Individually and On Behalf of Others Similarly Situated v. WILLIAMS FORD TRACTOR and EQUIPMENT COMPANY
    99-235
    5 S.W.3d 423
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Watkins & Scott, PLLC, by: John R. Scott; and Williams & Anderson LLP, by: Leon Holmes, Peter Kumpe, and Stephen B. Niswanger, for appellants.

      Davis, Cox & Wright PLC, by: Constance G. Clark, Tilden P Wright III, and John G. Trice, for appellee.
   ANNABELLE Clinton Imber, Justice.

This is an interlocutory appeal. Wayne ce. Sylvia Fraley (the Fraleys), individually and on behalf of others similarly situated, contend that the trial court abused its discretion when it denied class certification of their claims against Williams Ford Tractor and Equipment Company (Williams Ford) for conversion, fraudulent concealment, constructive bailment, and violation of the federal Truth in Lending Act. We agree, and reverse and remand the case.

The Fraleys filed their original complaint against Williams Ford in the Circuit Court of Washington County, Arkansas on June 18, 1996. In their original complaint, the Fraleys alleged that between the years 1991 and 1995 they entered into four separate retail installment contract and security agreements with Williams Ford to purchase agricultural, commercial, and consumer equipment, and that Williams Ford financed not only the purchase price of the equipment, but also the premiums for property and credit life insurance. The Fraleys further alleged that when there was an early payoff of the full purchase price as the result of payment, refinancing, or repossession, the insurance company refunded any unearned premium to Williams Ford, but that the Fraleys never received the refund or a credit in the amount of the refund from Williams Ford.

In addition to their claim for conversion of the premium refunds, the Fraleys alleged that Williams Ford failed to disclose information about the cost and term of property insurance; that the insurance was part of the financed purchase price; and that a credit or refund would be issued for unearned premiums, all of which violated the federal Truth in Lending Act (TILA). They sought compensatory damages of $5,177.80, double the finance charges paid under their contracts, punitive damages and attorney’s fees.

On February 23, 1998, the Fraleys filed an amended complaint asserting a class action against Williams Ford. The amended complaint included the allegations mentioned above, and asserted additional claims of fraudulent concealment and constructive bailment. The amended complaint designated two classes of plaintiffs:

Class A is comprised of those Debtors who paid off their loans early or refinanced their balance but did not receive refunds or credits from [Williams Ford] for unearned insurance premiums. Class A seeks redress under the common law of conversion.
Class B is comprised of those Debtors who executed a transaction with [Williams Ford] and who failed to receive information from [Williams Ford] about the costs or refunds of insurance on the Debtors’ Retail Installment Contracts and Security Agreements as prescribed by the TILA. Class B includes only those Debtors for whom credit was extended primarily for consumer purposes and in an amount not exceeding $25,000.00.

The amended complaint asserted that the size of each class was more than 100 persons based upon information and belief, but averred that information about the exact size and existence of each class was entirely within the possession of Williams Ford or a third party.

The Fraleys filed a motion to certify the class action pursuant to Ark. R. Civ. P. 23 on April 15, 1998, along with the affidavit of another Williams Ford customer, Mr. Richard Mayes. Mr. Mayes averred in his affidavit that he purchased insurance coverage through Williams Ford and that the premiums were financed with the balance of the equipment purchase price. According to Mr. Mayes, when he paid off the full purchase price on this equipment and financed new equipment at a later date, Mr. Don Williams, President of Williams Ford, requested that he endorse a refund check for unearned premiums mailed to Williams Ford by the insurance company. Mr. Mayes complied with that request, but Williams Ford kept the premium refund despite his repeated demands for payment.

In preparation for the class-certification hearing, the Fraleys filed a third set of interrogatories and requests for production of documents which sought information and documents from Williams Ford about the identity of (1) debtors who paid offloans early or refinanced those loans at any time from January 1, 1990, to the present and (2) debtors whose federal TILA disclosure forms dated any time from January 1, 1990 to the present, omitted information concerning costs or refunds of insurance under the debtors’s retail installment contracts and security agreements. Williams Ford did not provide the requested information to the Fraleys, but instead objected on the basis that pre-certification discovery requests by the Fraleys sought information that was outside the scope of discovery under Ark. R. Civ. P. 26(b) and was not relevant or material to the subject matter of the litigation. Williams Ford also asserted that the discovery requests were overly broad and unduly burdensome. Notwithstanding these objections, Williams Ford filed the affidavit of the secretary and co-owner of Williams Ford, Mrs. Maribelle Williams, on June 3, 1998, the day before the class-certification hearing. This affidavit disclosed that Mrs. Williams had searched the records of Williams Ford and two insurance companies and located the requested information, and that Williams Ford had used this information to obtain releases from most of the potential class members. Specifically, out of approximately 150 potential members of Class A identified by Mrs. Williams’s investigation, representatives of Williams Ford contacted approximately 121 members of that group and obtained releases from all of them. Similarly, representatives of Williams Ford identified and contacted potential members of Class B and obtained releases from all but seven of that group. In their supplemental response to motion for class certification, also filed on June 3, 1998, Williams Ford asserted that the Fraleys had not satisfied the numerosity and predominance requirements of Ark. R. Civ. P. 23, citing the recently, obtained releases.

At the certification hearing on June 4, 1998, Mr. John Ervin, a certified public accountant, testified that he examined all security agreements in the Washington County records for which Williams Ford was the secured party in the months that the Fraleys had their retail transactions with Williams Ford, that is, in the months of May 1991, December 1994, January 1995, and August 1995. He discovered five agreements in December 1994, fifteen in January 1995, and twenty-nine in August 1995. Mr. Ervin testified that he examined the retail installment contracts signed by the Fraleys, and that all customers involved in similar agreements that included the purchase of insurance coverage and that were paid off prior to maturity would be entitled to a refund of unearned premiums, either by direct refund to the customer, or by a credit to the customer’s payoffbalance. According to Mr. Ervin, the debtors who come within the purported class definition would be identified from records maintained by the secured party, Williams Ford. In that regard, he understood that Mrs. Williams had identified approximately 150 installment contracts that included the purchase of insurance coverage and that were paid off prior to maturity.

Mrs. Fraley testified that neither she nor her husband was ever informed about any entitlement to an insurance refund until they questioned Mr. Williams in August 1995 about obtaining insurance that would not be financed. According to Mrs. Fraley, Mr. Williams said that Williams Ford generally kept insurance refunds. It was, therefore, her belief that others had been deprived of insurance refunds. Mrs. Fraley further testified about “her commitment to represent those other people out there that have been wronged with regard to insurance refunds,” and stated that she understood her obligation as a class representative.

Mrs. Maribelle Williams testified that she began her investigation about three to four weeks before the certification hearing. With regard to proposed Class A, she created a master list of customers for whom insurance refunds were sent to Williams Ford from June 18, 1993 to the present. Mrs. Williams developed this list from lists of refunds that she obtained from two insurance companies (Capitol Life and Accident Insurance Company and Equipment Insurance International, Inc.) and from her review of records maintained by Williams Ford. She then removed the names of any customer who was sent a refund or who signed a waiver, or whose contract was canceled due to repossession. After excluding those customers, approximately 150 customers remained on the master list. Mrs. Williams testified that Williams Ford then contacted the customers whose names remained on the list in order to obtain releases from them. Customers were contacted personally by Mrs. Williams, Mr. Williams, one of their two sons, or Mr. G.C. Watson. All of the customers who were contacted signed releases. As of the hearing date, only twenty-four customers on the master list had not been contacted.

With regard to proposed Class B and the federal TILA claims, Mrs. Williams testified that she reviewed 4,500 to 5,000 files in her office for the time period of June of 1995 through June 4, 1998. She excluded all transactions where no insurance was purchased or where the insurance information was properly disclosed on the face of the contract. She also excluded any contracts where the purchase of equipment was not for agricultural, business, or commercial purposes, or where the amount financed exceeded $25,000.00. Mrs. Williams estimated that approximately twenty customers remained on the fist as putative members of Class B. Representatives of Williams Ford contacted and obtained releases from all but five of those customers. Mrs. Williams confirmed that none of their customers were paid any consideration for signing the releases in favor of Williams Ford.

Based upon the testimony presented at the June 4, 1998 certification hearing, the trial court entered an order on June 16, 1998, that directed Williams Ford and its representatives, including its attorneys, to cease all communications with any putative class members regarding the lawsuit. The trial court placed similar restrictions on the Fraleys and their agents and representatives, including their attorneys. The parties were ordered to file briefs regarding the “appropriateness of and effect on the class certification determination of the defendant’s communications with putative class members.” The trial court also ordered Williams Ford to respond within ten days to the Fraleys’ third set of interrogatories and requests for production “with respect to those documents or information readily available to the defendant by reason of the investigation described in Mrs. Williams[’s] testimony.” The trial court scheduled another hearing regarding class certification on July 6, 1998.

On July 6, 1998, the certification hearing resumed, at which time the trial court heard arguments on the propriety of Williams Ford’s pre-certification contact with potential class members. On July 23, 1998, the trial court denied the motion for class certification, ruling that the Fraleys failed to satisfy the numerosity and predominance requirements of Ark. R. Civ. P. 23. The trial court specifically ruled that there is no prohibition against communications, negotiations, or settlements with proposed class members prior to class certification, and that the communications by Williams Ford with proposed class members were not inappropriate. The June 16, 1998 order prohibiting communications with potential class members was revoked, and Williams Ford was ordered to disclose to the Fraleys the names, addresses, and telephone numbers of all customers identified in Mrs. Williams’s investigation. Finally, the trial court suggested that it would reconsider the issue of class certification if evidence were found by the Fraleys that Williams Ford’s communications with potential class members was misleading or that the releases were improperly obtained.

In a motion for reconsideration filed on November 5, 1998, the Fraleys alleged that Williams Ford fraudulently obtained releases from potential class members, and that the potential class was larger than initially revealed by Mrs. Williams. The Fraleys subpoenaed the records of five insurance companies that provided insurance for Williams Ford customers. Based upon information received from two of these companies and the information provided by Williams Ford, the Fraleys asserted that the size of the potential class was at least 429 persons. The Fraleys also contacted some of the potential class members previously contacted by Williams. According to excerpts of deposition testimony given by three of these persons, Williams Ford provided misleading information in obtaining the releases. Specifically, Mr. Donald F. Blount testified that Mr. Don Williams told him that Williams Ford would finance his new transaction if he signed the release, and that he was requiring other customers to sign the releases as a condition to financing or refinancing. According to Mr. Blount, Mr. Williams also said that the release pertained only to the immediate transaction. Mr. Dan A. Gross testified that someone at Williams Ford told him that the lawsuit was about whether or not Williams Ford was offering insurance. Because he had always been offered insurance, Mr. Gross signed the release. Finally, Mr. Ricky Lee Miller testified that at the time he signed the release in May 1998, he understood that if there was anything owed to him, it would be “made right” by Williams Ford. It was only after Mr. Miller was subpoenaed for the deposition, which prompted him to conduct his own investigation and 'notify Williams Ford that he was entitled to a refund, that Williams Ford credited Mr. Miller’s account with some of the unearned premium refunds. At the time of the deposition, Mr. Miller testified that he had still “not been made right for at least two refunds.”

An affidavit by Mr. J. Mark Lundy, C.P.A., was also attached to the motion for reconsideration. In his affidavit, Mr. Lundy stated that he reviewed the list of refunds from Capitol Life and Accident Insurance Company from January 1994 until July 1998, and found 233 individuals representing 373 refunds. Mr. Lundy also reviewed the Williams Ford refund register provided by Equipment Insurance International, Inc., for the years 1995, 1996, 1997, and 1998 and found 181 individuals representing 260 refunds. He determined that there were 241 names on either the Capitol Life list or the Equipment Insurance list that were not identified on the fist of 188 individuals provided by Williams Ford.

Williams Ford filed a response to the motion for reconsideration on January 28, 1999. In its response, Williams Ford argued that the trial court lost jurisdiction over the matter due to the passage of over one hundred days between the filing of the initial order on July 23, 1998, and the filing of the motion for reconsideration on November 5, 1998. Williams Ford further asserted that the only evidence of any misleading information given to potential class members was the testimony of Mr. Donald Blount. However, Mr. Blount recanted this testimony when he was re-deposed on January 26, 1999. This new testimony by Mr. Blount was attached as an exhibit to the response by Williams Ford, as were the affidavits of Mr. Allen Wallis, Mr. Robert Putnam, Ms. Anita Bowers, and Mr. Wayne Burnett. All of these affiants were customers of Williams Ford who indicated that they did not want to participate in any lawsuit against Williams Ford.

On February 12, 1999, the trial court held a hearing on the motion for reconsideration filed by the Fraleys. At the conclusion of the hearing, the trial court entered an amended order that denied the motion for reconsideration. In that amended order, the trial court found that the Fraleys failed to prove that Williams Ford’s communications with potential class members were misleading or that the releases were improperly obtained, and that the Fraleys failed to show newly discovered evidence that could not have been discovered within ninety days or prior to the hearings held in June and July of 1998. The trial court also found that the Fraleys failed to establish predominance, numerosity, or superiority for class-action purposes.

In this appeal, the Fraleys challenge the trial court’s denial of class certification in the two separate orders, both of which were based on findings that the proposed class lacked numerosity and that the individual issues predominated over the common issues. In its second order, the trial court also found that a class action was not a superior method for adjudicating the claims against Williams Ford.

Rule 23 of the Arkansas Rules of Civil Procedure provides that a trial court may certify a class only if the following conditions are met:

(1) The class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Ark. R. Civ. P. 23(a). Additionally, the court must find that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Ark. R. Civ. P. 23(b). The determination of whether the elements of Rule 23 have been satisfied is within the broad discretion of the trial court, and we will not reverse absent an abuse of that discretion. Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997); Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706, 918 S.W.2d 129 (1996); Cheqnet Sys., Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995).

I. Rule 23(a) Numerosity Requirement

The first requirement of class certification is “that the class is so numerous that joinder of all members is impractical.” Ark. R. Civ. P. 23(a)(1). In Mega Life &. Health Ins. Co. v. Jacola, supra, we reiterated the parameters for the trial court’s inquiry into the numerosity requirement:

In Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995), we held that:
the exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense.
We have not adopted a bright-line rule to determine how many class members are required to satisfy the numerosity requirement. See, e.g. Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991) (approving a class of several thousand claimants); International Union of Elec., Radio, & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W2d 81 (1988)(declaring that “at least several hundred” class members were sufficient); Cooper Communities, Inc. v. Sarver, 288 Ark. , 701 S.W.2d 364 (1986) (holding that 184 potential class members were enough); City of North Little Rock v. Vogelgesang, 273 Ark. 390, 619 S.W.2d 652 (1981)(rejecting a class of only seventeen potential plaintiffs).

330 Ark. at 269-70, 954 S.W.2d at 901.

In this case, Mrs. Williams’s affidavit and testimony at the June 4, 1998 certification hearing indicated that she identified approximately 150 persons who could conceivably be putative class members for Class A and fifteen to twenty persons who might be putative class members for Class B. During the period of three to four weeks prior to the certification hearing, Williams Ford obtained releases from all persons Mrs. Williams identified except for twenty-four persons in Class A and five persons in Class B. Information that was obtained by the Fraleys from two insurance companies identified by Mrs. Williams and then submitted to the trial court with their motion for reconsideration in November, 1998, identified a total of at least 429 persons who might be putative class members for Class A; that is, at least 429 persons financed insurance through Williams Ford, terminated their policies early as a result of some early payoff, and their insurance premium refunds had been returned to Williams Ford.

The trial court found that the numerosity requirement had not been satisfied because many putative class members had released Williams Ford from liability and because the releases were properly obtained by Williams Ford. The Fraleys argue that the trial court abused its discretion when it considered the merits of the case to determine that numerosity was not present. Specifically, they contend that the trial court’s findings regarding the affirmative defenses of release and consent were an improper intrusion into the merits of the case at the certification stage. We agree.

We have held that neither the trial court nor the appellate court may delve into the merits of the underlying claim in determining whether the elements of Rule 23 have been satisfied. Mega Life & Health Ins. Co. v. Jacola, supra; Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, supra. In that regard, a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action. Mega Life & Health Ins. Co. v. Jacola, supra; Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, supra. Thus, the propriety of a class action is “basically a procedural question.” Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, supra (citing Miller v. Mackey International, Inc., 452 F.2d 424 (5th Cir. 1971)).

With regard to the issues of release and consent, Rule 8 of the Arkansas Rules of Civil Procedure clearly provides that such issues are affirmative defenses:

In responding to a complaint, counterclaim, cross-claim, or third party claim, a party shall set forth affirmatively accord and satisfaction . . .estoppel . . .payment, release . . . statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

Ark. R. Civ. P. 8(c) (1999) (emphasis added). We have not previously addressed the issue of whether certification challenges based on the affirmative defenses of release and consent constitute an impermissible intrusion into the merits of the case. However, we have noted that certification challenges based on the statute of limitations, fraudulent concealment, releases, causation or reliance have usually been rejected and will not bar satisfaction of Rule 23(b)’s predominance requirement. Seeco, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997).

Many federal district courts recognize that “consideration of ‘affirmative defenses at the class certification stage’ is an improper intrusion into the merits of the case.” Kesler v. Hynes & Howes Real Estate, Inc., 66 F.R.D. 43 (S.D. Iowa 1975); see also Gavron v. Blinder Robinson & Co., Inc., 115 F.R.D. 318 (E.D. Penn. 1987);Shankroff v. Advest, Inc., 112 F.R.D. 190 (S.D.N.Y. 1986)(holding that the trial court should not determine the merits of some affirmative defense directed against some putative class members at preliminary certification hearing); Fickinger v. C.I. Planning Corp., 103 F.R.D. 529 (E.D. Pa. 1984); Neuberger & Berman v. Northern Elec. Co., Ltd., 70 F.R.D. 447 (S.D.N.Y. 1975); Richardson v. Hamilton International Corp., 62 F.R.D. 413 (E.D. Pa. 1974). We have said that we will interpret Ark. R. Civ. P. 23 in the same manner the federal courts interpret the comparable Fed. R. Civ. P. 23. See Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, supra; Union National Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 898 (1992).

Accordingly, we hold that a trial court should not delve into the merits of affirmative defenses in determining whether the numerosity requirement of Rule 23 (a) has been satisfied at the class-certification stage. In this case, the trial court prematurely adjudicated the validity of the releases when it found that the putative class members had released or consented to Williams Ford’s retention of the insurance refunds. We, therefore, conclude that the trial court mistakenly delved into the merits of Williams Ford’s affirmative defenses in determining that the numerosity requirement had not been satisfied.

The Fraleys also challenge the trial court’s finding that the releases were properly obtained by Williams Ford. Specifically, they contend that Williams Ford improperly obtained the releases by communicating personally with putative class members without prior court approval during the time after the motion for class certification was filed but before the first certification hearing. The Fraleys suggest that Williams Ford’s pre-certification communications were improper and presented a likelihood of serious abuses. Accordingly, they urge this court to hold that the trial court abused its discretion in considering releases that were improperly obtained at the certification stage.

The propriety of a defendant’s pre-certification contact with potential class members is an issue of first impression for this court. The cases cited by the parties indicate that some federal courts have strictly prohibited such communications. Rankin v. Board of Education of Unified School Dist. No. 489, 174 F.R.D. 695 (D. Kan. 1997); Hampton Hardware, Inc. v. Cotter & Company, Inc., 156 F.R.D. 630 (N.D. Tex. 1994); see also, Impervious Paint Industries v. Ashland Oil, 508 F. Supp. 720 (W.D. Ky. 1981). Other federal courts have allowed such communications with appropriate safeguards. Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int’l., Inc., 455 F.2d 770 (2d Cir. 1972)(court-imposed guidelines); Vernon J. Rockier & Co. v. Minneapolis Shareholders, 425 F. Supp. 145 (D. Minn. 1977)(SEC scrutiny of settlement offer). Finally, some courts have allowed unrestricted pre-certification communications without court approval. Nesenoff v. Muten, 67 F.R.D. 500 (1974); Janousky v. Jewel Companies, Inc., 538 N.E.2d 689 (Ill. App. 1 Dist. 1989).

The concerns of those courts that prohibit or supervise precertification communications have been expressed succinctly by one distinguished treatise, NEWBERG ON CLASS ACTIONS:

The solicitation of exclusions from a pending class action by a defendant before the court has determined that the case may proceed as a class action constitutes a serious challenge to the authority of the court to have some control over communications with class members. Unauthorized communications in a franchise class action, for example, may result in settlements by so many franchises as to eliminate satisfaction of the numerosity requirement of Rule 23(a)(1), thus stripping the action of its representative status and leaving the plaintiff free only to prosecute her or his own individual claim. Courts are concerned that such communications may prevent class members from making informed decisions about exclusion. “It is the responsibility of the Court as a neutral arbiter, and of the attorneys in their adversary capacity, to insure this type of free and unfettered decision to opt out of the class or not.”

1 Herbert B. Newberg, NEWBERG ON CLASS ACTIONS § 15.19 at 15-52 (3rd ed. 1992)(citations omitted).

The case of Hampton Hardware, Inc., supra, illustrates the circumstances where pre-certification communications have been found to be improper. After the class-action suit was filed against Cotter & Co., Daniel Cotter, president and CEO of Cotter & Co., sent three letters to potential class members, who were also members of Cotter & Co., a member-owned hardware wholesaler. Id. In the first letter, he notified class members about the “enormous potential cost to your Company due to this class action,” and then asked class members, “What can you do to avoid this waste of time and money? Decide not to participate in this lawsuit.” Id. In a second letter, he again told potential class members that “[b]y not participating in this suit, you will save your Company expense in dollars and time.” Id. Finally, in a third letter, Mr. Cotter stated that “[b]y asking you to join the class, Hampton is asking you to sue yourself.” Id. Hampton contended that these contacts were improper and requested an order prohibiting Cotter & Co. from contacting prospective class members concerning the litigation. Id.

The Hampton court ruled that such communications violated the principles of Rule 23. Id. Specifically, the court found that, regardless of the stated purpose of the letters, “any common sense reading of them reveals that they are an attempt to prevent member participation in the class action.” Id. The court further observed that the relationship between Cotter & Co. and putative class members was relevant in gauging the propriety of the communications:

The fact that the defendant and potential class members are involved in an on-going business relationship, further underscores the potential for coercion. Members must necessarily rely upon the defendant for dissemination of factual information regarding hardware goods and for lower prices in purchasing those goods. They are therefore particularly susceptible to believing the defendant’s comments that the lawsuit will cost them money. Cotter, on the other hand, an interested party in the litigation, faces a conflict of interest in advising members on the merits of participation in the lawsuit due to its direct pecuniary interest in the outcome.

Id. The court concluded that an order limiting contacts between defendants and potential class members is justified whenever there is a finding of the likelihood of serious abuses. Id. The court also reiterated Rule 23’s policy that favors having litigation in which common interests, or common questions of law and fact prevail, disposed of in a single lawsuit. Id. Thus, it concluded that the three letters sent by Mr. Cotter worked directly against the interests embodied in Rule 23 by attempting to reduce the class members’ participation in the lawsuit. Id. Having decided that the contacts were improper, the court then addressed what relief was appropriate in light of the United States Supreme Court’s admonishment in Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), that an order limiting class contacts should limit “speech as little as possible consistent with the rights of the parties under the circumstances.” Id. (citing Gulf Oil Co. v. Bernard, supra). In that regard, the district court utilized the following four criteria to frame an appropriate order limiting the type of commercial speech that encouraged potential class members not to join in the suit: the severity and likelihood of the perceived harm; the precision with which the order is drawn; the availability of a less onerous alternative; and the duration of the order. Id. After examining the facts of the case under each of the four criteria, the Hampton court held that:

[T]he order in this case, consistent with the principles in Gulf Oil, should prohibit contacts between the defendants and potential class members up through the time of trial. The court supervised notice will provide objective information to potential class members upon which they can base a decision to participate or not participate in this action. Business related communications will, as in the past, continue between Cotter and the class members.

Id.

Similarly, in Kleiner v. First National Bank of Atlanta, 751 F.2d 1193 (1985), the United States Court of Appeals for the Eleventh Circuit upheld an order prohibiting contacts between defendants and potential class-action plaintiffs. While Kleiner, supra, involved unsupervised, unilateral communications after class certification but before the court-supervised notice of the opportunity for exclusion under Fed. R. Civ. P. 23(c)(2), the court found that a systematic campaign of telephone calls by bank personnel to prospective class members was not to alleviate customer confusion, but rather to solicit as many exclusions as possible. Id. According to the court, “[u]nsupervised, unilateral communications with the plaintiff class sabotage the goal of informed consent by urging exclusion on the basis of a one-sided presentation of the facts, without opportunity for rebuttal. The damage from misstatements could well be irreparable.” Id. The Eleventh Circuit Court of Appeals also acknowledged that a unilateral communications scheme is rife with potential for coercion, especially when there is an ongoing business relationship. Id. Furthermore, the court concluded that there was inherent coercion when a high number of exclusion requests resulted from such a scheme. Id. Finally, the danger of unsupervised oral solicitations was noted:

The Supreme Court has acknowledged that unsupervised oral solicitations by their very nature are wont to produce distorted statements on the one hand and the coercion of susceptible individuals on the other:
[I]n person solicitation may exert pressure and often demand an immediate response without providing an opportunity for comparison or reflection. The aim and effect of in-person solicitation may be to provide a one-sided presentation to encourage speedy and perhaps misinformed decision-making; there is no opportunity for intervention or counter-education. . . .

Id. (citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978)).

In oral argument, the Fraleys urged this court to prohibit all unsupervised, unilateral communications with potential class members prior to certification. We decline to impose the proposed bright-line rule in all class actions, because we cannot say with certainty that such a rule would withstand constitutional scrutiny. See Gulf Oil Co. v. Bernard, supra. Likewise, we reject Williams Ford’s suggestion that pre-certification communications with potential class members should always be unrestricted. In that regard, we note that mechanisms were already in place to protect against the likelihood of abuse in the federal cases cited by Williams Ford. Weight Watchers, supra (court-imposed guidelines); and Rockier, supra (SEC scrutiny of settlement offer). Instead, we are persuaded by the reasoning of the federal district court in Hampton, supra, that pre-certification communications with potential class members which attempt to substantially reduce member participation in the class action, or which otherwise indicate a likelihood of coercion or a serious potential for harm to the interests of the class action, should be restricted or prohibited when brought to the attention of the trial court. We will, therefore, be guided by these considerations as we examine the circumstances in this particular case to determine whether Williams Ford’s pre-certification communications with potential class members were improper.

Our examination of the record in this case reveals the following circumstances surrounding Williams Ford’s pre-certification contacts with potential class members:

• Williams Ford began its own internal investigation of potential class members at the same time that it was objecting to parallel discovery requests by the Fraleys.
• The Williams Ford investigation was conducted by Mrs. Williams, who used company records and two lists obtained from insurance companies to develop a master list for proposed Class A that included the names of 188 customers whose insurance refunds went back to Williams Ford.
• Because Mrs. Williams was not able to determine from the company’s records exactly where the insurance refunds for those 188 customers went after they were received by Williams Ford, Williams Ford launched an effort to contact all 188 customers personally.
• According to Mrs. Williams, all of the customers who were contacted, with only a couple of exceptions, confirmed that the insurance refunds were retained by Williams Ford with their consent.
• One hundred percent of the proposed Class A customers who were contacted by Williams Ford signed General Releases of All Claims, which provided in pertinent part that:
[A]ny insurance premium refund which resulted from the cancellation of my installment contract dated any date was released by me to Williams Ford Tractor & Equipment Company as a portion of the consideration for my installment contract dated any date.
• Representatives of Williams Ford also contacted and obtained releases from all but five of approximately twenty customers who remained on the list as putative members of proposed Class B. One hundred percent of the proposed Class B customers who were contacted by Williams Ford also signed General Releases of All Claims, which provided in pertinent part that:
[A]ll information concerning the costs or refunds of insurance under the retail installment contract(s) and security agreement(s) dated any date was (were) disclosed to me at the time of sale although the federal Truth in Lending disclosure form of said documents omits the specific information.
• At the time representatives of Williams Ford personally contacted the putative class members about signing the releases, all of them were still customers and had credit extensions with Williams Ford.
• The customers were told by Williams Ford representatives about the lawsuit, but they were not told the amount of any refund they would get if they were in the class and the lawsuit was successful. Nor were they told anything about whether they might be entitled to any award of punitive damages. According to Mrs. Williams, “all of them were satisfied that they had been treated fairly and received everything they were to receive.”
• With the exception of two or three customers who were paid their refunds and then signed releases, none of the customers who signed releases were paid anything for the releases.
• In Mrs. Williams’s words, the purpose of this process was:
[T]o show that there is no class of people out there, that each customer and all of his transactions are individual between buyer and seller. I have also wanted to properly document my files.

From this summary of the circumstances surrounding Williams Ford’s communications with potential class members, it is clear that the president, secretary, and other representatives of Williams Ford attempted to contact all potential class members prior to class certification. During these direct oral communications with potential class members, Williams Ford’s representatives not only attempted to discourage participation in the lawsuit, but also discussed the merits of the case when they attempted to confirm that every customer consented to Williams Ford’s retention of the insurance refunds. Furthermore, the potential class members have an ongoing business relationship with Williams Ford. This type of situation is particularly conducive to coercion and undue influence. The fact that all of the potential class members owe Williams Ford money and may depend upon Williams Ford for the financing of future equipment purchases renders them particularly vulnerable to coercion. Moreover, the high number of releases obtained from one hundred percent of the customers contacted by Williams Ford is persuasive evidence that coercion was inherent in the direct personal communications with potential class members.

Furthermore, excerpts from the deposition testimony of three potential class members suggest the likelihood of confusing and misleading communications during the course of Williams Ford’s efforts to obtain releases from all potential class members. According to Mr. Donald F. Blount, Williams Ford required all customers to sign the release documents as a prerequisite for financing or refinancing. Mr. Blount recanted this testimony after he was re-deposed. Similarly, Mr. Dan A. Gross was reluctant during his deposition to testify against his friend Don Williams, but he did testify clearly that someone at Williams Ford told him that the lawsuit was about whether Williams Ford had offered insurance. He had always been offered insurance, so he signed the release. Mr. Ricky Lee Miller testified that he signed the release after Williams Ford assured him that anything owed to him would be made right. Several months later and just before Mr. Miller’s deposition, Williams Ford credited his account with some, but not all, of his unearned premium refunds. Based upon all of these circumstances, we conclude that the pre-certification communications by Williams Ford with potential class members were improper and presented a likelihood of serious abuses. Accordingly, we hold that the trial court’s consideration of such communications, including the releases that resulted therefrom, was an abuse of discretion.

We stress that our decision is not meant to chill settlement negotiations in any way, and that resolution of litigation prior to trial remains desirable. However, attempts by class opponents to discourage participation in class actions under circumstances that indicate a likelihood of coercion, or a serious potential for harm to the interests of the class action, violate the principles of Rule 23. This proposition is supported by NEWBERG ON CLASS ACTIONS:

Though the law has long favored settlements, releases from liability or exclusions from a class action obtained by the defendant through misrepresentation or the coercive threat of economic sanctions will not receive judicial approval when challenged.

Newberg on Class Actions, supra, at § 15.19 at 15-54. Rule 23(c) also provides a mechanism for class members to make informed decisions about exclusion. Under that provision, a class-certification notice that contains accurate information is sent to each potential class member, who can then make an informed and independent decision to opt out of the class or not.

In light of our holding that the trial court should not have considered the releases that were improperly obtained by Williams Ford at the certification stage of this case, we must now determine whether the numerosity requirement has been satisfied. The trial court indicated at the certification hearing that whether or not it was appropriate to consider the releases at the certification stage “could well be decisive in this particular case.” We agree. According to Mrs. Williams, there are at least 188 potential class members. Furthermore, according to the evidence submitted by the Fraleys at the hearing on their motion for reconsideration, at least 429 persons were identified as potential class members. Where the numerosity question is a close one, the balance should be struck in favor of a finding of numerosity in fight of the trial court’s option to later decertify. Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925 (11th Cir. 1983); Foster v. Bechtel Power Corp., 89 F.R.D. 624 (E.D. Ark. 1981). For these reasons, we conclude that there was sufficient evidence to satisfy the Rule 23(a) numerosity requirement. We, therefore, hold that there was an abuse of discretion by the trial court when it held otherwise.

II. Rule 23(b) Predominance Requirement

We must now determine whether the trial court abused its discretion when it found that class certification was improper because the common questions of law or fact did not predominate over the questions affecting only individual members. Specifically, the trial court found that the class certification should be denied based on the individual issues raised by the claim of fraudulent concealment and the defenses of statute of limitations, release, and consent.

The predominance element can be satisfied if the preliminary, common issues may be resolved before any individual issues. Mega Life & Health Ins. Co. v. Jacola, supra; International Union Of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988). In making this determination, we do not merely compare the number of individual versus common claims. Mega Life & Health Ins. Co. v. Jacola, supra; Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991). Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of bifurcated proceedings. Mega Life & Health Ins. Co. v. Jacola, supra; International Union of Elec., Radio & Mach. Workers v. Hudson, supra.

In Seeco, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997), we held that the predominance factor was satisfied because the common issue of whether the defendant had engaged in a scheme to defraud the plaintiff could be resolved in a- class action before decertifying the case for resolution of the individual issues of reliance and diligence. Likewise, in Mega Life & Health Ins. Co. v. Jacola, supra, we held that the predominance factor was satisfied because the common issues of what type of insurance policy was issued, and what type of notice was required prior to termination, would be resolved in a class action before decertifying the case for resolution of the individual issues of reliance and damages.

In contrast, we concluded that class certification was improper in Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), because there simply was no common issue, and we recognized in that case that individual issues of informed consent and causation were the essence of the claims of each separate plaintiff. In Baker v. Wyeth-Ayerst Lab. Div., 338 Ark. 242, 992 S.W.2d 797 (1999), we upheld that the trial court’s denial of class certification because there were few, -if any, global or common issues that could be resolved in the certified stage.

As in Seeco, Inc. v. Hales, supra, the issue of a fraudulent scheme is central to the instant case and a common starting point for all class members. The Fraleys’ amended complaint alleges a centralized fraudulent scheme in which Williams Ford intentionally converted insurance premium refunds from each member of proposed Class A and failed to disclose information on installment contracts, as prescribed by the federal TILA, to members of proposed Class B. Whether Williams Ford engaged in this alleged conduct is “the overreaching issue which must be the starting point in the resolution of this matter.” Seeco, Inc. v. Hales, supra. This common question arises out of standard Retail Installment Contracts and Security Agreements, and Williams Ford’s regular business practices with regard to insurance refunds and disclosures required by the TILA, both of which are susceptible to class-wide proof through information that is within the custody of Williams Ford, i.e., the company’s books and records maintained in the ordinary course of business. Nor will the individual issues noted by the trial court in its ruhng — the statute of limitations, fraudulent concealment, release, and consent — preclude a finding that common issues predominate. See Seeco, Inc. v. Hales, supra. For these reasons, we hold, as we did in Seeco, Inc. v. Hales, supra, that these challenges will not override the common questions relating to the allegation of a centralized scheme perpetrated by Williams Ford. There was an abuse of discretion by the trial court when it held otherwise.

III. Rule 23(b) Superiority Requirement

Rule 23(b) further requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. This court has held repeatedly that real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues if necessary. See, e.g., Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members Mutual Ins. Co., supra; Summons v. Missouri Pac. R. R., supra; Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991); International Union of Elec., Radio & Mach. Workers, supra.

Moreover, certifying this case as a class action is fair to both sides. Lemarco, Inc. v. Wood, supra. As we noted in Seeco, Inc. v. Hales, supra, Williams Ford can present evidence of fair dealing with its customers and may prevail on this core issue. It can also present individual defenses to the claims of individual class members, such as the statute of limitations, release, and consent, once the common questions have been determined. Lemarco, Inc. v. Wood, supra. This procedure is also fair to the class members because it is more economical to pursue the action as a class instead of individually. Seeco, Inc. v. Hales, supra; Mega Life & Health Ins. Co. v. Jacola, supra. Thus, we also conclude that the superiority requirement has been satisfied. There was an abuse of discretion by the trial court when it held otherwise.

IV Reconsideration of Class Certification

Finally, we address the Fraleys’ contention that the trial court erroneously applied the finality principles set forth in Ark. R. Civ. P. 59 and 60 to reconsideration of its class-certification decision. We agree.

Rule 23 of the Arkansas Rules of Civil Procedure specifically states that “[a]n order under this section may be conditional and it may be altered or amended before the decision on the merits.” Ark. R. Civ. P. 23; See also NEWBERG ON CLASS ACTIONS, supra § 7.47. Class rulings are often reconsidered, and subsequendy affirmed, altered, modified, or withdrawn. Id.

[Although the court’s initial decision under Rule 23(c)(1) that an action is maintainable on a class basis in fact may be the final resolution of the question, it is not irreversible and may be altered or amended at a later date. This power to change the class certification decision has encouraged many courts to be quite liberal in certifying a class when that decision is made at an early stage, noting that the action always can be decertified or the class description altered if later events suggest that it is appropriate to do

Wright, Miller & Kane: Federal Practice & Procedure 2d§ 1785 atpp. 128-31 (2d Ed. 1986)(citations omitted). “The ability of a court to reconsider its initial class rulings ... is a vital ingredient in the flexibility of courts to realize the full potential benefits flowing from the judicious use of the class device.” Newberg ON CLASS Actions, supra § 7.47 at pp. 7-146. Class-action certification is necessarily an ongoing process in light of Rule 23’s opt-out and decertification provisions.

For these reasons, we hold that the finality principles of Rules 59 and 60 of the Arkansas Rules of Civil Procedure do not apply to class rulings under Ark. R. Civ. P. 23 before there is a decision on the merits. Thus, the trial court’s reservation of the right to reconsider the certification issue was proper. However, it erroneously applied the finality principles of Ark. R. Civ. P. 59 and 60 to reconsideration of its class-certification decision.

Reversed and remanded.

       After Williams Ford complied with the trial court’s order to produce the list developed by Mrs. Williams, the actual number of persons identified by Mrs. Williams as conceivably falling within the class definition was determined to be 188.

       First National Bank eventually succeeded in reaching a little over 3000 customers, nearly 2800 of whom decided to exclude themselves. Kleiner, supra.

       As of the hearing on June 4, 1998, only twenty-four customers on the master list had not been contacted.

       It is not clear whether this number includes potential members of Class B.


text:
    Bruce Edward LEAKS v. STATE of Arkansas
    CR 99-624
    5 S.W.3d 448
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Jim Pedigo, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   ANNABELLE Clinton Imber, JBruce Edward Leaks, was convicted

[1] The appellant, Bruce Edward Leaks, was convicted in a jury trial of first-degree murder and was sentenced to forty years in the Arkansas Department of Correction. On appeal to the Arkansas Court of Appeals, Mr. Leaks raised two assignments of error. First, he argued that the trial court abused its discretion in limiting his cross-examination of a State’s witness. Second, he argued that the trial court erred in allowing the prosecutor to argue to the jury that he could have been charged with capital murder. The court of appeals, by a tie vote, affirmed en banc. Leaks v. State, 66 Ark. App. 254, 990 S.W.2d 564 (1999). We granted Mr. Leaks’s petition for review because of the tie vote. See Ark. Sup. Ct. R. 2-4(c)(i). It is well settled that upon a petition for review, we consider the case as though it were originally filed in this court. Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

On the night of January 7, 1997, William Earl Litdejohn was shot and killed at the home of Mr. Leaks’s brother, where Mr. Litdejohn had been living for about one week prior to the shooting. Before that, he and Mr. Leaks had lived together at Mr. Leaks’s residence for about six months. On the evening of the shooting, Mr. Leaks went over to his brother’s house to confront Mr. Litdejohn about allowing certain women to do their laundry at his brother’s home, and to demand payment of money for rent and a telephone bill that Mr. Littlejohn allegedly owed him. Mr. Leaks testified that he took a gun along to confront the victim because he was fearful of Mr. Littlejohn. According to Mr. Leaks, the victim had previously cut him with a razor blade. Mr. Leaks also admitted that he and several other people had been drinking together earlier that day. Mr. Leaks testified that when he confronted Mr. Litdejohn, the victim grabbed his hand, slapped him in the face, and then came toward him and appeared to be trying to get something out of his pocket. Mr. Leaks became fearful, reached in his own pocket, pulled out the .38 caliber handgun, and then shot Mr. Littlejohn in the chest. Mr. Leaks immediately left the house after the shooting.

Mr. Leaks’s nephew, who was in the back bedroom, testified that the victim came into his bedroom and told him that Mr. Leaks had shot him. Mr. Litdejohn then collapsed on the bed and died. Although Mr. Leaks initially denied any knowledge of the shooting to the police, he later admitted that he shot the victim after the police recovered the gun used in the shooting from a car owned by Mr. Leaks’s girlfriend. Mr. Leaks, however, testified that he shot the victim because he feared for his life and did not intend to kill him. The jury was given instructions on the elements of first and second-degree murder.

For his first point on appeal, Mr. Leaks argues that the trial court erred in limiting his cross-examination of a State’s witness, Bennie Smith, about her relationship with another State’s witness, George Cheatham. Ms. Smith testified that she had been given permission by the victim to do laundry at the house on the night of the shooting, but had left prior to Mr. Leaks’s arrival. She also testified that at one time she had heard Mr. Leaks say that his girlfriend had cut him. Ms. Smith had also testified on direct examination that she had dated Mr. Cheatham, who was Mr. Leaks’s roommate at the time of the murder.

On cross-examination, Ms. Smith stated that “I guess I have a problem with George Cheatham.” When Mr. Leaks’s counsel asked her what the problem was, the State objected based on relevancy. Mr. Leaks’s counsel argued that the question went to Ms. Smith’s credibility, at which point the trial court sustained the State’s objection.

Mr. Leaks contends that the trial court abused its discretion in not allowing a complete cross-examination of Ms. Smith, thereby denying the jurors potentially vital information regarding her credibility and potential bias. However, we are precluded from addressing the merits of this issue because Mr. Leaks failed to proffer the excluded testimony.

To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so we can review the decision, unless the substance of the evidence is apparent from the context. Ark. R. Evid. 103(a)(2); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). In the instant case, Mr. Leaks made no proffer of what Ms. Smith’s excluded testimony would have been, and we cannot tell what the specifics of that testimony would have been from the context of the questions. Furthermore, absent a proffer of the excluded evidence, we have no way of knowing whether Mr. Leaks was prejudiced by the challenged ruling. Tauber, supra. Accordingly, this argument is not preserved for our review.

For his second point on appeal, Mr. Leaks argues that the trial court erred in overriding his objection to certain remarks made by the prosecutor during closing argument. This assignment of error arises out of the following argument and objection that occurred during the prosecutor’s closing argument:

PROSECUTOR: You know, Mr. Littlejohn or Mr. Leaks, He’s a lucky man. He’s already been given a break when he wasn’t charged with the premeditated killing of Mr. Littlejohn. If you kill someone with a premeditated and deliberate purpose of doing so, if you think about it and plan on it and deliberate on it, that’s one of the differences between murder in the first degree and capital murder. But, the decision was made right or wrong not to charge him with capital murder and not to seek the death penalty. We charged him with murder in the first degree. So, he’s, he’s already been given a break in that regard.
Defense Counsel: I’m going to have to object to that fine of argument. He’s arguing that this is a capital murder case and through the good graces of the Prosecuting Attorney’s Office, they have not charged him with that, that’s highly improper.
PROSECUTOR: Judge, he was arguing and representing in his opening comments that the Defendant ought to be charged or convicted of something lesser than what he’s charged with, that he ought to be convicted of murder in the second degree. He’s asking the jury or representing to the jury that they ought to give him a break. I’m telling the jury now after the evidence has been presented why the evidence justifies not giving him any more breaks.
The COURT: Objection overruled.

After, the jury retired to the jury room to deliberate, Mr. Leaks’s attorney made a motion for a mistrial based on the prosecutor’s remarks. The prosecutor responded that the motion was untimely, and the trial court denied the motion for mistrial without further comment.

Mr. Leaks contends that it was improper for the prosecutor to include matters in his closing argument that were outside the charges and the evidence in this case. In response, the State asserts that we are precluded from addressing this argument on appeal, because Mr. Leaks failed to request any further relief after his objection was overruled by the trial court. Thus, we must first determine whether the argument was preserved for our review.

The State cites Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996) in support of its argument that Mr. Leaks was required to request relief in the form of an admonishment or a motion for mistrial. Our holding in Puckett, however, is inapposite. In that case, the trial court gave a limiting instruction to the jury after the defendant objected to the prosecutor’s closing argument. Under such circumstances, we have consistendy held that there was no abuse of discretion by the trial court when the defendant faded to request any further relief after the trial court gave a limiting instruction to the jury. See Puckett v. State, supra; Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993); Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988). In other words, where the trial court has afforded some relief, it is incumbent on the defendant to ask for further relief in order to preserve the issue.

In contrast, the defendant’s objection to the prosecutor’s closing argument in this case was overruled by the trial court. Although not cited by the State in its brief, we addressed a similar situation in Smith v. State, 302 Ark. 459, 790 S.W.2d 435 (1990), where the prosecutor suggested in closing argument that “the defendant has subpoena power just like the State does. If they wanted those people here they could have subpoenaed them. They did not do so.” Id. The defendant in Smith, supra, objected to the prosecutor’s statement on the basis that a defendant does not have to prove his innocence. After the trial court overruled the objection, the defendant made no further motion for relief, either in the. form of a request for a mistrial, a striking of the statement, or a limiting instruction. Id. We then made the following holding: “In the absence of a proper request for, and a denial of, specific relief sought by the appellant, we decline to hold that the ruling of the trial court to the appellant’s general objection was reversible error.” Id. (citing Jurney v. State, 298 Ark. 91, 766 S.W.2d 61 (1989).

This holding in Smith v. State, supra, seems to suggest that even though the trial court has overruled an objection to the prosecutor’s closing arguments, the defendant must still request further relief in order to preserve the issue for appellate review. We relied upon Jurney v. State, supra, as authority for that holding. However, a reading of Jurney indicates that the circumstances in that case are not similar to those presented in Smith:

Finally, the appellant argues that the victim should not have been allowed to testify about his prior violent acts. When asked if this was the first time the appellant had been violent to her and her husband, the victim said no, he had pulled a knife on her before and hurt her father several times. An objection was sustained.
When asked why she left town shordy after the incident, the victim replied that she feared her son would get out of jail and hurt her and her husband. Again, the objection was sustained.
The appellant got the relief requested. Since he did not ask for either an admonition or a mistrial, we find no error. Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987).

Jurney v. State, supra. (Emphasis added.) Simply stated, the objection was sustained in Jurney, while in Smith it was overruled.

When an objection to a statement during closing argument is sustained, an appellant has been given all the relief requested; consequently, there is no basis to raise the issue on appeal unless the appellant requests an admonition to the jury or a mistrial. Jurney v. State, supra; Brown v. State, 316 Ark. 729, 875 S.W.2d 828 (1994); Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983). Whereas, when an objection to the prosecutor’s closing argument is overruled by the trial court, an appellant has been given none of the relief requested. Rather, the trial court has ruled that no misconduct has occurred. To require a request for further relief at that point in order to preserve the issue for review would serve no purpose. Once the trial court rejects a claim of improper argument, there is no reason for it to consider a request for further relief.

For these reasons, we must conclude that the steps required for preservation of error when a trial court sustains an objection to closing argument should not govern the preservation of error when a trial court overrules a similar objection. Thus, the citation to Jurney v. State, supra, does not support the purported holding in Smith v. State, supra. Moreover, the absence of a request for further relief has not precluded this court from addressing the merits of similar arguments in other cases where an objection to closing argument has been overruled by the trial court. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Catlett v. State, 321 Ark. 1, 900 S.W.2d 523 (1995); Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982).

We, therefore, hold that an objection to remarks made during closing argument is sufficient to preserve the argument for review when the objection is clearly overruled by the trial court. Any suggestion to the contrary in Smith, supra, is not supported by our case law. We further hold that the closing argument issue presented in this case has been preserved for our review. Mr. Leaks promptly objected to the prosecutor’s closing argument, and the trial court overruled his objection. We now address the merits of Mr. Leaks’s second point on appeal.

We have stated many times that the trial court is given broad discretion to control counsel in closing arguments, and we do not interfere with that discretion absent a manifest abuse of discretion. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). Closing remarks that require reversal are rare and require an appeal to the jurors’ passions. Lee v. State, supra; Mills v. State, supra. Furthermore, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor’s remarks. Noel v. State, supra; Bullock v. State, 317 Ark 204, 876 S.W.2d 579 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

We have also repeatedly stated the rule that closing arguments must be confined to questions in issue, the evidence introduced during trial, and all reasonable inferences and deductions which can be drawn therefrom. Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993); Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990). It is the trial court’s duty to maintain control of the trial and to prohibit counsel from making improper arguments. Peebles v. State, 305 Ark. 338, 808 S.W.2d 331 (1991) (citing Walker v. State, 138 Ark. 517, 212 S.W. 319 (1919)).

In this case, Mr. Leaks challenges the propriety of the prosecutor telling the jury during closing argument that Mr. Leaks had already been given a break by the State’s decision to charge him with first-degree murder instead of capital murder. As previously mentioned, Mr. Leaks argues that the prosecutor’s reference to capital murder was improper because it was outside the charges and evidence in this case. We agree.

We have previously dealt with the propriety of a prosecutor’s reference in closing argument to an offense that is outside of the record. For example, in Simmons & Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961), the prosecutor told the jury that the defendant had previously raped a girl other than the prosecutrix. Because there was “no evidence in the record which provides, under any logical analysis, a foundation for the prosecuting attorney’s statement to the jury,” we held that the prosecutor’s highly improper and prejudicial closing argument warranted reversal of the conviction. Id. Similarly, in Miller v. State, 120 Ark. 492, 179 S.W. 1001 (1915), the prosecutor implied in the closing argument that the defendant, who was charged with theft of a horse, was also guilty of insurance fraud. In reversing the conviction, we concluded that the trial court erred in sanctioning this improper and prejudicial argument. Id. Likewise, in Todd v. State, 202 Ark. 287, 150 S.W. 46 (1941), the prosecutor told the jury not to worry about the defendant having to work out a fine on the county farm because she would “sell enough whisky to pay off the fine.” Id. This court, in reversing the conviction, held that the prosecutor’s remarks were highly improper and prejudicial because the charge of assault and battery against the defendant did not involve the sale of liquor. Id.

We noted in Simmons & Flippo v. State, supra, that many of the policies which underlie the rules prohibiting the introduction of evidence of other offenses also apply with equal force to the problem of a prosecutor’s reference to an offense not supported by the record:

Basically, the rule rests upon the spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations. Our theory is simply that a finding of guilty should rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. . . . Much of the fundamental protection thus afforded the accused would be rendered ineffective if the prosecuting attorney were allowed to place before the jury indirectly by argument that which could not be introduced as evidence.

Id. (citations omitted; emphasis added). In this case, the exact offense for which Mr. Leaks was being tried was first-degree murder. Whether or not the evidence supported a charge of capital murder was not at issue.

We also observed in Simmons & Flippo v. State, supra, that the prosecutor acts in a quasi judicial capacity and that it is the prosecutor’s duty to use all fair, honorable, reasonable, and lawful means to secure the conviction of the guilty in a fair and impartial trial:

Nothing should tempt him to appeal to prejudices, to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man. The forms of law should never be prostituted to such a purpose.

Id. (citing Holder v. State, 58 Ark. 473 (1894); emphasis added.) The only law applicable to the evidence in this case was that which related to the charge of first-degree murder and to the lesser-included offense of second-degree murder. Thus, the element of premeditation that relates solely to capital murder was not applicable to the evidence in Mr. Leaks’s case.

In a case involving an argument that closely parallels the one made by the prosecutor in this case, the Tennessee Supreme Court reversed the appellant’s conviction for assault with intent to kill and remanded the case for new trial because the prosecutor suggested that the appellant intended to rape the victim, when the case was prosecuted on the theory that his purpose was to commit a robbery. Vines v. State, 231 S.W.2d 332 (Tenn. 1950). The trial court allowed the argument over the appellant’s objection. Id. In reversing, the Tennessee Supreme Court stated:

We think the foregoing argument by the State’s counsel justifies a reversal of this case. The defendant was not on trial for attempted rape. On the contrary, the State had put him on trial upon an indictment charging an assault to commit murder, the theory-being that his purpose was robbery. The State’s counsel clearly asked the jury to give consideration to the theory of attempted rape, and not robbery, referring to the defendant as “this human fiend . . . .” The court should have admonished counsel that he had no way to argue a theory that was wholly foreign to the indictment in order to secure a conviction, and that the language used was highly improper. While it is the duty of the State’s counsel to prosecute all offenders with the utmost vigor, he is never driven to the necessity of indulging in such intemperate language to influence the jury’s decision.

Id. (citation omitted). Likewise, other jurisdictions have held that similar arguments made by the defense are improper. In State v. Dickson, 691 S.W.2d 334 (Mo. App. 1985), the Missouri Court of Appeals, in affirming a conviction for capital murder, held that the trial court properly sustained the State’s objection to appellant’s closing arguments. After the State suggested in its closing that the appellant had a “sexual purpose” in the attack on the victim, appellant’s counsel attempted to argue that the killing was a felony murder rather than capital murder. Id. However, the jury was instructed only on capital murder, murder in the second degree, and manslaughter. Id. The court stated:

It is thus evident that if appellant’s lawyer, at the time of the prosecutor’s objection was intending to argue to the jury that a killing during an attempted rape would constitute “felony-murder,” such an argument would have been outside of the instruction. While counsel may argue facts as they pertain to the law declared in the instructions of the court, it is improper for counsel to argue questions of law not within the issues or inconsistent with the instructions of the court, or to present false issues. Whether appellant, on the evidence before the jury, was guilty of “felony-murder” was not an issue for the jury to decide.

Id. (citations omitted). See also United States v. Quinn, 467 F. 2d 624 (8th Cir. 1972) (trial court upheld in prohibiting defense counsel from arguing that he should have been charged with another crime rather than the crime with which he was charged).

Flere, the prosecutor clearly went beyond the charges and the evidence in this case when he argued to the jury that Mr. Leaks had been given a break because he was not charged with capital murder. We, therefore, hold that the prosecutor’s remarks were highly improper and the trial court clearly abused its discretion in failing to sustain Mr. Leaks’s objection on that ground.

The State argues that Mr. Leaks was not prejudiced by the prosecutor’s improper remarks because, as an habitual offender, he did not receive the maximum sentence for first-degree murder, and because the trial court instructed the jury that comments by counsel were not evidence. We disagree.

A trial court’s failure to sustain a proper objection to argument of matters outside the record is serious error and gives the appearance that the improper argument has not only the sanction but the endorsement of the court. Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988) (citing Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976)). We have also stated that we will always reverse a case where counsel goes beyond the record to state matters that are prejudicial to the opposing party unless the trial court, by its ruling, has removed the prejudice. Id.

The jury in this case was instructed by the trial court on the elements of first-degree murder and second-degree murder. They were also advised by the prosecutor, with the tacit approval of the trial court, that the evidence could have supported a charge of capital murder with a maximum penalty of death. The prejudicial effect of the prosecutor’s remarks concerning the applicable law would not have been removed by the trial court’s instruction that counsel’s arguments were not evidence. That same jury instruction informs the jury that arguments by counsel are made only to help them understand “the evidence and applicable law.” AMCI 2d 101(e). (Emphasis added.) Mr. Leaks did not receive the maximum sentence for first-degree murder. However, the forty-year sentence imposed by the jury did exceed by ten years the maximum he could have received for second-degree murder, as an habitual offender. Ark. Code Ann. § 5-4-501 (a) (Repl. 1997). Under these circumstances, we cannot say that Mr. Leaks was not prejudiced by the prosecutor’s highly improper remarks.

Finally, we have carefully considered the record in an effort to determine whether the trial court’s error was harmless due to overwhelming evidence of guilt. While the evidence of Mr. Leaks’s guilt may have been overwhelming, the question at issue in this case was whether he was guilty of first-degree murder or the lesser-included offense of second-degree murder. Mr. Leaks was entitled to a fair deliberation by the jury on those two offenses. Based on this record, we cannot say that the prosecutor’s improper suggestion of a third and more serious charge, capital murder, did not result in jury deliberations that included not only the charged offense of first-degree murder and the lesser-included offense of second-degree murder, but also a third uncharged offense of capital murder, thereby causing the deliberations to be skewed in favor of first-degree murder. We, therefore, hold that the trial court’s error in fading to sustain Mr. Leaks’s objection to the prosecutor’s highly improper remarks was not harmless. For these reasons, the judgment of the trial court is reversed and the case remanded for a new trial.

Reversed and remanded.

       Mr. Leaks’ motion for mistrial was untimely. A motion for mistrial must be made at the time the objectionable statement is made, rather than waiting until the end of the State’s argument. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997). Furthermore, a motion for mistrial based on improper argument is untimely when it is made after closing arguments and out of the presence of the jury. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).