author: Robert L. Brown, Justice.

text:
    Jane A. CASH and Hugh Cash v. Rodolfo Espaldon LIM and Pine Bluff Radiologists, Ltd.
    95-168
    908 S.W.2d 655
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      Hodges & Hodges, by: David Hodges, for appellants.

      Mitchell, Williams, Selig, Gates & Woodyard, by: R.T. Beard, III, for appellees.
   Robert L. Brown, Justice.

The áppellants, Jane A. Cash

and Hugh Cash, appeal from a summary judgment in favor of appellees Dr. Rodolfo Espaldón Lim and Pine Bluff Radiologists, Ltd. They contend that a genuine issue of material fact concerning causation in their medical malpractice claim remains to be resolved and that, accordingly, summary judgment was not appropriate under Ark. R. Civ. P. 56(c). We agree, and we reverse the summary judgment and remand the matter for trial.

On April 8, 1993, the Cashes filed a medical malpractice complaint against Dr. Lim and his radiology clinic, Pine Bluff Radiologists, Ltd., and others. The primary allegation was that Dr. Lim misread Jane Cash’s April 16, 1991 mammogram and failed to diagnose a malignant tumor in her right breast, which resulted in a radical modified mastectomy of her right breast a year later. In 1992, Dr. Ronald Pritchard, another radiologist with Pine Bluff Radiologists, Ltd., read the film and noticed a suspicious density in Jane Cash’s right breast. He recommended that an excision be done. Dr. Hagans, a breast surgeon in Little Rock, did the excision, and the biopsy subsequently revealed a cancerous condition. On April 29, 1992, Dr. Hagans performed the partial radical mastectomy on Cash.

After the complaint was filed, discovery ensued with the appellees taking the deposition of Dr. Hagans and the appellants taking the depositions of Dr. Lim and Dr. Aubrey Joseph, still another physician with Pine Bluff Radiologists, Ltd. Dr. Lim and his radiology clinic then moved for summary judgment. They asserted that they were entitled to summary judgment as a matter of law and that the Cashes had the burden of proving medical malpractice and causation under Ark. Code Ann. § 16-114-206 (1987). They attached as exhibits to their motion four pages from Dr. Hagans’s deposition, X-Ray Requests and Reports for Jane Cash for the years 1989 through 1992, and a discharge summary from Baptist Medical Center in Little Rock dated May 1, 1992. The Cashes responded that factual issues remained to be resolved and that § 16-114-206 of the Medical Malpractice Act was unconstitutional. The Cashes attached to their response the complete depositions of Drs. Lim, Joseph, and Hagans. They subsequently filed an affidavit by Jane Cash regarding the stress, anxiety, and financial harm occasioned by Dr. Lim’s misdiagnosis.

On November 15, 1994, the circuit court issued a letter opinion and found: (1) that neither Dr. Hagans nor anyone else could state to a reasonable degree of medical certainty that the conduct of Dr. Lim or his clinic made a difference in the outcome of Jane Cash’s condition; (2) that the Cashes have failed to demonstrate remaining justiciable issues relating to causation; and (3) causation is an element that the Cashes must prove. On December 7,1994, the court granted summary judgment to Dr. Lim and his clinic.

Turning to the issue on appeal, this court has often summarized its standards for summary judgment review:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H&C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v.
Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City ofPiggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. R 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, All U.S. 317 (1986).

Oglesby v. Baptist Medical System, 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995); see also Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 583, 851 S.W.2d 443, 446 (1993); Birchfield v. Nationwide Insur., 317 Ark. 38, 875 S.W.2d 502 (1994); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994).

Accordingly, it is the moving party who has the burden of presenting evidence to sustain a summary judgment, and all proof submitted must be viewed in the light most favorable to the opposing party. It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994); Bartlett v. Argonaut Ins. Co., 258 Ark. 221, 523 S.W.2d 385 (1975).

The matter of proximate causation is ordinarily one for the jury to resolve. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Stacks v. Arkansas Power & Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). Hence, we turn to the proof submitted by Dr. Lim and his clinic to determine whether a genuine issue of material fact surrounding causation remains. Four pages from the deposition of Dr. Hagans were attached in support of the motion. Those pages read in part;

DEFENSE COUNSEL; Doctor, do I take it from the note of April the 5th, 1993, that you do not intend to testify regarding the standard of care for a radiologist practicing that specialty in Pine Bluff, Arkansas, or a similar locality in 1991 or 1992? Is that correct?
DR. HAGANS: I think that would be correct, since I’m not a radiologist.
DEFENSE COUNSEL: Sure. I understand. Now, this lady is your patient?
DR. HAGANS: Uh-huh.
DEFENSE COUNSEL: To a reasonable degree of medical certainty or probability, do I understand that while you feel the films may have been misread, you can’t and will not state that it made any difference in the ultimate outcome? Is that correct?
DR. HAGANS: That is correct, because I don’t think anyone can say that.
DEFENSE COUNSEL: I agree with you. And when I say the ultimate outcome, I’m talking about the entire course of events.
DR. HAGANS: Yes.
DEFENSE COUNSEL: Do you have any problem with that?
DR. HAGANS: No. I think it should be stated, as I told the patient, which is how all this may have occurred, is that, of course, it’s best, if ever a patient has cancer, to remove that cancer as soon as you possibly can.
DEFENSE COUNSEL: Sure.
DR. HAGANS: In this particular case, she had something on her pictures that I think was there, you know, in days past, a year before we removed it. In retrospect, it’s very easy to say that was cancer, you know, and as I told her initially, when I first showed her the films that told me that we needed to go biopsy this, and her question to me was, what do [sic] my pictures look like last year, and I showed the pictures to her on the view box, and it’s very easy — you have these pictures here and you look at them — that this density was there, very easily seen the year before. And this is something that she and her husband could see very easily. And I told them that you can’t say that it was cancer at that point until you did a biopsy. So when we did a biopsy, then, yes, in retrospect, it was cancer.
So there had been a year there where the tumor may have been removed sooner. Would it have made a difference? Unknown, because she had such a good prognosis and has such a good prognosis at this time, that it’s unknown if that year made a difference in her. But then the standard still remains that you should take something out as soon as you can.
DEFENSE COUNSEL: I understand that. But to a reasonable degree of medical certainty or probability, you can’t state as we sit here today, even with the clarity of the retrospectroscope, that had the cancer been removed in 1991, that anything would be different?
DR. HAGANS: Absolutely.
DEFENSE COUNSEL: Okay. What is her prognosis, in your opinion, Doctor?
DR. HAGANS: It’s a little difficult to say because of the fact that she quit chemotherapy
DEFENSE COUNSEL: Yes, sir.
DR. HAGANS: You know, if we had continued the chemotherapy as planned, her prognosis would have been well over 85 percent, 90 percent, that she would not have any trouble in the future. Now, with the chemotherapy not being completed, we don’t have any real statistics to tell us, of course, you know, how much difference that’s going to make. But that, of course, makes me very concerned that she didn’t complete the therapy.

The full depositions of Drs. Lim, Joseph, and Hagans attached to the Cashes’ response and Jane Cash’s affidavit shed no additional light on the issue of causation.

The nub of this matter is whether the statements made by Dr. Hagans in his deposition establish sufficient proof of a lack of causation so as to require the Cashes to respond with countervailing proof. The salient points of Dr. Hagans’s deposition are these:

• Dr. Hagans believed that the 1991 film had been misread.
• He would not testify about the standard of care for radiology in Pine Bluff because he was not a radiologist.
• He did not believe anyone could state with a reasonable degree of medical certainty that the misreading of the film made any difference in the ultimate outcome.
• The standard is that it is best to remove a tumor as soon as you can.
• It was “unknown” whether removing the tumor sooner would have made any difference and he would not state that it would have.

We have held in the past that when the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986); Collyard v. American Home Assur. Co., 271 Ark. 228, 607 S.W.2d 666 (1980). In Wolner, the plaintiff was in the hospital for pro-static surgery, and following surgery, he rose from a chair, fell, and broke his arm. He sued the hospital and his urologist, and the circuit court granted summary judgment in favor of both. We reversed with respect to the urologist and stated that it was the responsibility of the urologist, as the moving party, to prove the requisite standard of care and that he had conformed to that standard of care before the opposing party was required to present proof of the contrary. This he failed to do.

Similarly, in Collyard v. American Home Assur. Co., supra, the issue was whether proof was sufficient to sustain summary judgment in a slip and fall case. The plaintiff (Collyard) gave a deposition in which she stated that she did not know how the water causing her fall got on the floor or how long it had been there. The defendant business (YMCA) where the plaintiff fell moved for summary judgment and attached the plaintiff’s deposition in support of the motion. The circuit court granted the motion in favor of the defendant because the plaintiff had not responded to the motion by countervailing proof. This court reversed and stated:

The appellant [Collyard] alleged negligence on the part of the YMCA. The appellee [YMCA] never controverted this allegation by affidavit or other proof. It simply offered the deposition of Collyard that she did not know how the water got there or how long it had been there. The appellee and trial judge mistakenly presumed that the burden was on Collyard to come forward with additional proof on this issue. The burden in a summary judgment proceeding is on the moving party; it cannot be shifted when there is no offer of proof on a controverted issue. The object of a summary judgment is not to try the issues but to determine if there are issues of fact. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1967).
Whether the YMCA was negligent remained a fact in issue. If appellant had offered proof that the YMCA was not negligent, then Collyard would have had to produce a counter-affidavit or proof refuting the offer. But that was not the case. The appellee based its motion only on the deposition of Collyard, the plaintiff. The allegation in the complaint remained uncontroverted and Collyard should be permitted to present other evidence on that fact.

Collyard, 271 Ark. at 229-230, 607 S.W.2d at 668.

Viewing Dr. Hagans’s testimony in the light most favorable to the Cashes, as we are required to do, we cannot say that it establishes a prima facie case of lack of causation or that it constitutes proof that would require countervailing proof from the Cashes. Dr. Hagans was admittedly not a radiologist or an oncologist but a breast surgeon in Little Rock. He stated twice that it is always best to remove cancer as soon as you can and mentioned once that this was the “standard.” In seeming conflict with this, he also stated that he could not say as a medical certainty that the misreading of the 1991 film affected Jane Cash’s outcome, or that anyone could make that statement. Though he believed the films were misread in 1991, he emphasized that he was not a radiologist and did not know the standard of care in Pine Bluff.

We conclude that Dr. Hagans’s testimony falls into the category of his not knowing one way or the other what the causative impact of misreading the 1991 film might have been. He could not be certain of the impact, but, by his own admission, this subject was outside of his area of expertise. Moreover, if anything, his testimony on causation was as favorable to the Cashes as to Dr. Lim and his clinic. In sum, Dr. Hagans’s deposition does not rise to the level of sufficient proof on the issue of causation, and, as a consequence, offsetting proof by the Cashes was not required.

Reversed and remanded.


source: Caselaw Access Project

author: Andree Layton Roaf, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Maxim Keith DANIELS v. STATE of Arkansas
    CR 94-1340
    908 S.W.2d 638
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      James Dunham, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant Maxim Keith Daniels was convicted of seven counts of commercial burglary, one count of attempted commercial burglary, and five counts of theft of property. He was sentenced to forty years imprisonment in the Arkansas Department of Correction. Daniels raises seven points on appeal; the state concedes error regarding Daniels’ decision to represent himself at trial. We reverse and remand for a new trial.

On October 17, 1993, a string of burglaries occurred on a two and one-half mile stretch of Highway 7 near Russelville. There was an attempted burglary of D & D Imports, and the Ozark Heritage Craft Center, Tropical Gardens, Arkansas Shoe Center, Kilburn’s Grocery, Carter’s Grocery, Bright’s Heating and Air, and the VFW Club were all burglarized. The appellant was apprehended while attempting to open a safe in the VFW Club. Property taken from five of the businesses was recovered in the appellant’s vehicle and his motel room.

Two of the appellant’s points on appeal concern his decision to represent himself and his conduct in that endeavor. On May 9, 1994, the day of trial, appellant’s counsel informed the trial court that the appellant either wanted to obtain other counsel or wanted to represent himself. Consequently, the appellant requested a continuance. Defense counsel stated that the appellant was concerned because a third amended information filed four days before trial added the charge of felon in possession of a firearm. The appellant also complained of other changes in the amended information, requested a “full evidentiary hearing” to learn the evidence the state would present, and expressed dissatisfaction with his counsel. The trial court determined the felon in possession charge would not be tried, and defense counsel informed the trial court he was prepared to go to trial on the case. The trial court advised the appellant that he had “shown me nothing as to why I should relieve Mr. Gibbons as your attorney” and informed the appellant that he would not grant a continuance.

The trial court then inquired several times whether the appellant wanted his attorney to represent him, and the appellant repeatedly responded he wanted time to prepare for the case. Ultimately, the appellant stated, “I want to represent myself, but I want a continuance. I haven’t had time to prepare.” The trial judge stated the continuance was denied, and he informed the appellant that if he went into the courtroom and “put on a show” the trial would go on without his presence. The appellant said, “All I want is to represent myself.”

The trial court instructed the appellant that “I think it is a mistake not having Mr. Gibbons with you there, but that’s your decision.” The appellant elected to represent himself. Subsequently, the trial court stated that “there are procedures that we are going to follow that I suppose you don’t understand in selecting a jury.” The appellant responded by stating, “That’s another thing that I need. I need time.” The trial judge concluded the case would go to trial, and he informed the appellant that his counsel would remain available.

After the jury was selected, the state called its first witness, Ray Caldwell. The following exchange then occurred:

PROSECUTOR: Would you please state your name?
WITNESS: Ray Caldwell.
MR. DANIELS: So, you’re just going to railroad me regardless.
THE COURT: You’re going to the jail if you disrupt this trial.
MR. DANIELS: I’d rather go back to the jail and y’all can have a trial and do what you’re going to do in the first place.
THE COURT: No, I’m giving you the option of sitting here and listening to this trial.
MR. DANIELS: No, send me back to the jail.
THE COURT: I will if you disrupt the trial.
MR. DANIELS: Okay. Just send me back then.
THE COURT: I’m not until you disrupt this trial. Now, we are going to proceed with it.
MR. DANIELS: Well, what do I have to do to go back there? You’re going to railroad me regardless.
MR. DANIELS: Just send me back to jail.
THE COURT: That’s your choice.
MR. DANIELS: Okay.
THE COURT: Do you want to go?
MR. DANIELS: Okay, yeah, yeah.
THE COURT: I’m not going to send you to the jail. I’m going to put you in the jury room back here and I’m going to check and see if you want to come back into the Court.
MR. DANIELS: No, I don’t, no.
THE COURT: You’re going to the jury room right now. Take him back there.
MR. DANIELS: Will someone please call federal investigators.

After the appellant was removed from the courtroom, the judge allowed the trial to proceed with appellant in the jury room; his former counsel, Mr. Gibbons, remained in the judge’s chambers.

The appellant asserts the trial court erred in excluding him from the courtroom, failing to require counsel to participate in the appellant’s absence, and failing to grant a continuance. At trial appellant did not object to his exclusion from the courtroom, nor did he ask that his counsel come back and participate in his absence. In fact, the colloquy between appellant and the trial court reflects that he asked to be sent back to the jail. He also stated, before he was removed from the courtroom, that he did not want Mr. Gibbons to even be available at the counsel table with him. However, these events transpired after appellant’s counsel was dismissed and while appellant was attempting to represent himself. The state thus concedes the trial court erred by allowing the appellant to proceed pro se without ensuring that the appellant knowingly and intelligently waived his right to counsel.

The Sixth and Fourteenth Amendments to the Constitution of the United States guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before he can be validly convicted and punished by imprisonment. Faretta v. California, 422 U.S. 806 (1975); Kincade v. State, 303 Ark. 331, 796 S.W.2d 580 (1990). It is well established that an accused may make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. Deere v. State, 301 Ark. 505, 785 S.W.2d 31 (1990). However, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Kincade v. State, supra; Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). The burden is upon the state to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989).

In Faretta v. California, supra, the United States Supreme Court stated that “[although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” (quoting Adams v. United States ex rel. McCann, 317 U.S. 269 (1942)). In Gibson v. State, 298 Ark. 43, 764 S.W.2d 617, cert. denied 491 U.S. 910 (1989), we relied upon Patterson v. Illinois, 487 U.S. 285 (1988), to conclude that the constitutional minimum for a knowing and intelligent waiver of the right to counsel requires that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel. Further, we have stated that determining whether an intelligent waiver of the right to counsel has been made depends in each case upon the particular facts and circumstances, including the background, the experience and conduct of the accused. Gibson v. State, supra. To establish a voluntary and intelligent waiver, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. Id. The judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. Id. The last requirement is especially important since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and receives no special consideration on appeal. Id.

The appellant was not represented by counsel at his trial and there is no showing on the record that he knowingly and intelligently waived this right. The trial court commented that the appellant appeared to be well versed in the law; however, no real inquiry was made. In fact, the state concedes there was no inquiry. The trial court did not explain the risks or the consequences of proceeding without counsel. See Gibson v. State, supra; Murdock v. State, 291 Ark. 8, 722 S.W.2d 268 (1986). Accordingly, we hold the trial court erred by allowing the appellant to represent himself without making a proper inquiry as required by Faretta v. California, supra.

Because we reverse and remand for a new trial, it is not necessary to address all of the appellant’s remaining arguments as they are unlikely to arise in a subsequent trial. However, we discuss two of the other points of appeal as these issues will likely arise on retrial.

The appellant asserts the use of three prior felony convictions for enhancement purposes constitutes reversible error. The appellant contends state’s exhibits one and two consist of records from Kentucky and Tennessee penal institutions, but there are no certificates by the wardens, there are no fingerprints, and there are no certified copies of the judgments of conviction. The appellant asserts state’s exhibit three purports to be a certified copy of a Kansas conviction for burglary; however, the appellant contends the certification is suspect because the seal is dated 1961 and is in a place other than the area designated for the seal. In sum, the appellant submits the state failed to establish proof of the convictions as required by Ark. Code Ann. § 5-4-504 (Repl. 1993).

Section 5-4-504(a) provides that for sentencing enhancement purposes a previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt the defendant was convicted or found guilty. Ark. Code Ann. § 5-4-504 (Repl. 1993) (emphasis added); Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). Subsection (b) of the statute provides further:

(b) The following are sufficient to support a finding of a prior conviction or finding of guilt:
(1) A certified copy of the record of a previous conviction or finding of guilt by a court of record;
(2) A certificate of the warden or other chief officer of a penal institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant as they appear in the records of his office; or
(3) A certificate of the chief custodian of the records of the United States Department of Justice, containing the names and fingerprints of the defendant as they appear in the records of his office.

We have recognized that the original commentary to the section provides: “The Commission wished to make clear the fact that the state may prove a previous felony conviction by means other than introduction of the certificates described in the statute.” Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994).

The appellant simply argues that the state failed to establish the requisite proof because it failed to comply with § 5-4-504(a) or (b)(2); there is no suggestion whatever that the proof presented did not correctly reflect the judgments in the earlier cases in which the appellant was convicted. See Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). The state sufficiently proved the three prior convictions, therefore this argument is without merit. See Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990).

The appellant also contends that Ark. Code Ann. § 16-97-101 (Supp. 1993), bifurcated sentencing procedures, does not apply to habitual offender situations and that it was error under Ark. Code Ann. § 5-4-502 (Repl. 1993) to allow testimony and argument during the sentencing phase. We have recognized that under the bifurcation structure, a criminal trial is split into separate and distinct stages, the first of which involves the finding of guilt or innocence. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Ark. Code Ann. § 16-97-101 (Supp. 1993). In the event of a finding of guilt, further proceedings are held in which evidence may be presented prior to the setting of sentence. Hill v. State, supra; § 16-97-101. Finally, Ark. Code Ann. § 16-97-104 (Supp. 1993) specifically provides: “Proof of prior convictions, both felony and misdemeanor, and proof of juvenile adjudications shall follow the procedures outlined in §§ 5-4-502 - 5-4-504.” Clearly, the bifurcated procedures outlined in Ark. Code Ann. §§ 16-97-101 - 16-97-104 (Supp. 1993) are applicable to cases involving an alleged habitual offender; appellant’s argument therefore is without merit.

Reversed and remanded for new trial.

Jesson, C.J., and Glaze, J., concur.

Tom Glaze, Justice,

concurring.

The state concedes error, pointing out that the trial court failed to ensure the appellant knowingly and intelligently waived assistance of counsel. I write to emphasize that the trial court exercised considerable patience and restraint when dealing with appellant’s obstreperous conduct on the day of trial. Appellant terminated his counsel the day of trial, and giving no sound reasons, demanded a continuance, which the trial judge denied. Appellant became uncooperative and belligerent, even to the extent that, in open court and before the prospective jury panel, he voiced he was being railroaded. Nothing substantiated such a remark.

Although the trial judge had every right to remove the appellant from the courtroom because of appellant’s disruptive conduct, the judge was still required to ensure appellant knowingly and intelligently waived counsel, once appellant terminated counsel and chose to represent himself. I wish to make it clear that, in this case, the trial judge would have been justified in denying the appellant’s continuance request, but still require the appellant to proceed with counsel, Bryant v. State, 304 Ark. 514, 803 S.W.2d 546 (1991), or even without counsel, once his sixth amendment rights were explained as described in Faretta v. California, 422 U.S. 806 (1975).

Jesson, C.J., joins this concurring opinion.


author: Andree Layton Roaf, Justice.

text:
    Bonita WITHERSPOON v. STATE of Arkansas
    CR 95-537
    909 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      Herbert T. Wright, Jr., P.A., by; Herbert T. Wright, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant Bonita Willis Witherspoon appeals her conviction for criminal contempt of court in connection with her service as a juror in the capital murder trial of Ledell Lee. She raises two points on appeal: (1) the evidence is insufficient to support the contempt of court conviction and (2) the trial court erred in allowing jurors in the Ledell Lee case to testify regarding jury deliberations. Appellant’s arguments are without merit, and we affirm.

Appellant was seated as a juror on October 3, 1994, for the capital murder trial of Ledell Lee. Judge Chris Piazza declared a mistrial on October 7, 1994, because the jury reported it was deadlocked eleven to one; appellant cast the sole vote for acquittal. On October 13, 1994, the prosecuting attorney filed a motion for contempt in which he alleged that appellant failed to disclose on the jury information sheet that she had a prior felony conviction, failed to disclose, when questioned by counsel and the court, that she possessed independent outside knowledge of the case, including familiarity with the defendant’s family and with witnesses, and failed to disclose that she had been represented in a criminal prosecution by one of Ledell Lee’s defense attorneys, Jerry Sailings. A bench trial was held on December 13, 1994, to determine whether appellant failed to disclose that she possessed independent outside knowledge of this case; the charge of failure to disclose a felony conviction was not pursued at trial. Appellant was found to be in contempt of court and sentenced to ten days imprisonment.

a. Sufficiency of the evidence.

Appellant first argues that the evidence is insufficient to support the contempt of court conviction. At the bench trial, the appellant did not question the sufficiency of the evidence. Consequently, the state asserts appellant has not preserved this issue for appeal. However, it is not necessary for a defendant to challenge the sufficiency of the evidence in a bench trial in order to raise the issue on appeal. See Strickland v State, No. CR 94-879 (November 6, 1995).

In finding the appellant to be in contempt of court, the trial court concluded that “Ms. Witherspoon has defrauded this court.” A criminal contempt citation must be based on evidence showing guilt beyond a reasonable doubt. Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986). In an appeal of a case of criminal contempt, we view the record in the light most favorable to the decision of the trial judge and sustain that decision if it is supported by substantial evidence. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). Substantial evidence is evidence of a sufficient force and character to compel a conclusion one way or another, forcing the mind to pass beyond suspicion or conjecture. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). Finally, decisions as to the credibility of the witnesses are to be made by the trier of fact. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994).

At trial, the juror information sheet which appellant signed prior to her selection as a juror was admitted. It provided: “I do solemnly swear (or affirm) that the statements contained herein are true and that I have given true and perfect answers to the above questions asked touching my qualifications to serve as a grand or petit juror, so help me God.” The oath for new jurors to which appellant was sworn was also introduced and provided: “Do you, and each of you, solemnly swear or affirm, that you will well and truly try each and all of the issues submitted to you as a juror, and a true verdict render, according to the law and the evidence, so help you God?” In addition, a partial transcript of the Ledell Lee trial was admitted. At the Ledell Lee trial, the prospective jurors were asked if anyone knew a “Hubert Anderson from Little Rock.” Appellant did not respond. The jurors were also asked: (1) if they had “read anything, seen anything or heard anything on the radio?” (2) “Is there any reason that you couldn’t give both parties to this case a fair trial?” and (3) “Anybody else know anybody? Anything that would keep you from being here?” Again, appellant did not respond. In addition, the jurors were asked during the trial whether “anybody had been compromised by anything you may have read or heard about this case? ... [H]ave any of you been talked to by a witness or something that would compromise you in any way?” Appellant never responded.

At appellant’s trial, Mr. Hubert Anderson, a private investigator, testified that he had been employed by attorneys representing Ledell Lee. Mr. Anderson stated that he knew appellant because he had dated her sister for about six years. Mr. Anderson testified he saw appellant once every three or four months, and talked with her on the morning of the jury selection for the Ledell Lee trial. Mr. Anderson also stated that he usually goes by the name “Andy,” and appellant refers to him as Andy. He further stated that he did not give appellant any information regarding the Ledell Lee case. Although Anderson was listed as a witness, he did not testify at the Ledell Lee trial.

Mr. Jerry Sailings, one of Ledell Lee’s attorneys, testified that while he was with the public defender’s office he represented appellant on a theft by receiving charge in 1991. He stated that he represented her at a plea and arraignment, September 16, 1991, and at trial, September 23, 1991. Sailings testified he did not recognize appellant when she was called as a juror in the Ledell Lee case.

An alternate juror for the Ledell Lee case testified she saw appellant in the hall talking with an individual who had been on the witness stand and with Ledell Lee’s sister. She testified that she did not hear what was said, and did not report the conversation to court personnel. One of the jurors from the Ledell Lee trial testified that appellant said her brother-in-law was a private investigator and had worked on the Ledell Lee case; the juror further stated: “It seems like she said her brother-in-law told her something about it.”

Another juror testified he saw appellant talking to someone in an office, while Ledell Lee’s sister was in the office. This juror was not sure appellant was talking to Ledell Lee’s sister, because there was a third person in the room. He also stated that after the jury retired to deliberate, appellant indicated “she knew somebody that had investigated the case the first time it was tried.” He stated “I think she said that it was her brother-in-law.” He further testified that on the second day of deliberations, the appellant read a lengthy statement to the other jurors in which she asserted that the justice system was biased and racist, and she wasn’t going to have a part in that, and that officers who participated in the Lee investigation had all been promoted. Finally, he testified that after reading her statement, appellant turned her chair away from the rest of the jurors and began to read a book out loud, which was disruptive to the deliberations.

Another juror testified that after appellant was elected jury foremen she stated that she had worked with one of the prosecutor’s witnesses, a man named McCullough, and questioned why he was at home the day of the murder, and not at work. One juror also testified that appellant stated she had a brother-in-law who worked for one of the defense attorneys, and testified that appellant said she knew the private investigator. Finally, a juror testified she saw appellant talking to a prosecution witness during the trial, and she heard appellant say “Hi. How are you doing?” to Ledell Lee’s brother.

An act is contemptuous if it interferes with the order of the court’s business or proceedings, or reflects upon the court’s integrity. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995). The inherent power to punish for contempt should never be exercised except where the necessity is plain and unavoidable if the authority of the court is to continue. Id. The court’s contempt proceedings are to preserve the power and dignity of the court, to punish for disobedience of orders, and to preserve and enforce the rights of the parties. Id. Viewing the evidence in the light most favorable to the decision of the trial judge, we hold the contempt finding is supported by substantial evidence that Ms. Witherspoon had prior knowledge of the case which prevented a fair trial.

b. Testimony of jurors.

Appellant argues that the trial court improperly allowed her fellow jurors to testify concerning statements she made during jury deliberations, contrary to the United States Supreme Court’s holding in Clark v. United States, 289 U.S. 1 (1933), that a prima facie case of juror wrongdoing must first be shown and only then will jury discussions be admissible as corroborative evidence, to supplement and confirm the case that would exist without them. We have recognized that the sanctity of jury deliberations is a fundamental precept of our adversary system. National Bank of Commerce v. HCA Health Ser., 304 Ark. 55, 800 S.W.2d 694 (1990). However, in this instance, the appellant’s argument must fail.

Although the trial court found that a prima facie case had been made from the evidence extraneous to the jury room deliberations, appellant argues that the only extraneous evidence presented was that Mr. Sailings had previously represented her, and thus the jurors could only have testified to show appellant had knowledge of this prior representation. Appellant overlooks the testimony of Hubert Anderson and the testimony of the jurors concerning appellant’s conversations with witnesses and members of the defendant’s family outside the jury room. However, more importantly, the appellant in Clark was convicted in federal district court and the rule enunciated by the Supreme Court in 1933 applied to a proceeding in federal court. We have said that the Arkansas Rules of Evidence govern proceedings in the courts of this state. Ark. R. Evid. 101; See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

Appellant also asserts the ruling in Clark is consistent with Fed. Rule Evid. 606(b); however, A.R.E. Rule 606(b) is nearly identical to the federal rule and provides:

(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. (Emphasis added.)

This rule provides that jurors may testify in an inquiry into the validity of a verdict. Of course, no verdict was reached in the instant case, but we hold that the rule should apply whether a verdict is reached or a mistrial declared. This rule establishes an extraneous information exception which allows jurors to testify that one or more members of the jury brought to a trial specific personal knowledge about the parties or controversy or acquired such knowledge from sources outside the courtroom during the trial or deliberations. Christopher B. Mueller, 3 Federal Evidence § 249 (2d. ed. 1994); see also Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 748 S.W.2d 143 (1988). This is precisely what occurred in the instant case, and the trial court properly allowed jurors to testify about the statements made by appellant during the course of the deliberations.

The conviction is affirmed.

Glaze and Corbin, JJ., concur, see Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995)(Dudley, Corbin, and Glaze, JJ., concurring).


author: Per Curiam.

text:
    Troy MAYO v. STATE of Arkansas
    CR 95-802
    908 S.W.2d 659
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      Roy C. Lewellen, for appellant.
    No response.
   Per Curiam.

Mr. Mayo, through his attorney, Roy C. Lewellen, requests permission to file a belated transcript. In Mayo v. State, 321 Ark. 566, 906 S.W.2d 285 (1995), this court denied Mr. Mayo’s Motion for Rule on the Clerk because Mr. Lewellen had not accepted full responsibility for not timely filing the transcript.

Mr. Lewellen has now filed an affidavit in which he accepts full responsibility for tendering the transcript one day after the deadline. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Bradley D. Jesson, Chief Justice.

text:
    Kimberly Ann DOUGAN v. STATE of Arkansas
    CR 95-491
    912 S.W.2d 400
    Supreme Court of Arkansas
    Opinion delivered November 13, 1995
    [Petition for rehearing denied December 18, 1995.]

      Ford & Wadley, by: Paul N. Ford, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., and Robin Carroll, Law Student Admitted to Practice Pursuant to Rule XV(E)(l)(b) of the Rules Governing Admission to the Bar, for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, Kimberly Ann Dougan, was convicted of abuse of a corpse, Ark. Code Ann. § 5-60-101 (Repl. 1993), sentenced to six years’ imprisonment, and ordered to pay a $10,000.00 fine. She raises two arguments on appeal: (1) the trial court erred in denying her motion to dismiss on the basis that the statute is unconstitutionally vague; and (2) the trial court erred in denying her motion for directed verdict because there was insufficient evidence that she had “physically mistreated” a corpse. We affirm.

Facts

On the morning February 16, 1994, the body of a baby boy was discovered in a dumpster on Highway 306 near Colt, Arkansas. Appellant Kimberly Ann Dougan and her husband Ronald Dougan owned a gray van matching the description of a vehicle that had been seen in the area early that morning. Chief Investigator Glen Ramsey of the St. Francis County Sheriff’s Office went to the Dougan residence on February 18, and spoke with Ronald, who indicated that his wife had taken the van to go to the doctor on the morning of February 16, and had returned at approximately 6:30 or 7:00 a.m. According to Ronald, there was blood inside the van and on appellant’s clothing, which his wife explained was the result of a cyst on her ovary that had ruptured.

The appellant subsequently agreed to answer questions at the St. Francis County Sheriff’s Department. After being verbally advised of her Miranda rights and signing a waiver-of-rights form, she gave a statement to the officers. The statement related that, during the early morning hours of February 16, appellant began bleeding and awakened her sixteen-year-old-daughter, Ashley Kirksey. The two left their home in the family’s gray Plymouth Voyager van and drove to the parking lot of Baptist Memorial Hospital in Forrest City. Appellant “got scared,” and, against her daughter’s wishes, refused to go into the emergency room of the hospital. At approximately 4:10 a.m., while in the van, appellant delivered a baby boy, which was born with the umbilical cord wrapped around his neck. Ashley could not get the baby to move. Appellant cut the cord with a pair of scissors and tied it off with some old yellow crochet yarn. Rather than take the baby to the emergency room door, appellant, who was afraid she would be seen or that “someone would grab me and I wouldn’t know what do to,” instructed her daughter to start driving. According to appellant, Ashley drove to a dumpster west of Colt, and appellant placed the baby and some bloody sheets in the dumpster. Appellant maintained that she did not know that she was pregnant until she gave birth to the baby in the parking lot. She explained that she did not ask her husband to go with her to the hospital because they did not get along. According to appellant, her husband was “more interested in CB’s” and constantly accused her of being unfaithful.

Following appellant’s statement, she was charged with first-degree murder. After a complete autopsy revealed that the child had been stillborn, appellant was charged with abuse of a corpse, codified at Ark. Code Ann. § 5-60-101 (Repl. 1993). The trial court denied appellant’s pretrial motion to dismiss the charges against her on the basis that the abuse of corpse statute was void for vagueness.

At trial, the State offered the testimony of James Meredith, the county coroner, who observed the “full term” baby at the scene. While he saw no evidence of trauma, it was Dr. Meredith’s opinion that the baby died of exposure and neglect, and that had the baby received any medical attention whatsoever, it would have lived.

Ashley Kirksey testified that, at 2:00 a.m. on February 16, her mother woke her up and got into bed with her. At 4:00 a.m., her mother awakened her a second time and told her that she had to go with her. Her mother got three sheets out of the linen closet and a pair of scissors from the kitchen, and told Ronnie that she and Ashley were going to the hospital. When they got into the van, her mother told her that she was in labor. When Ashley told her that they had to go to the hospital, her mother refused, stating that she was not going to keep the baby because she and Ronnie were having problems, and because she “couldn’t handle another kid.” When they arrived at the parking lot of the hospital, her mother stated that she would give the baby to the nurses after it was born. Ashley got in the back of the van with her mother “and then the baby came out and I caught it.” The umbilical cord was wrapped around the baby’s neck. When Ashley pushed on its arm, the baby .would not move or cry. Ashley asked if she could take it inside the hospital, but her mother would not allow her to do so. Ashley tied and cut off the umbilical cord. After waiting for approximately 40 to 45 minutes for the afterbirth, they drove toward Colt. At her mother’s direction, Ashley opened the sliding door to a dumpster and put the baby, sheets, and afterbirth inside.

At the close of the State’s case-in-chief, Dougan renewed her motion to dismiss on the basis that § 5-60-101 was void for vagueness. She also moved for directed verdict on the basis that there was insufficient evidence that she had “physically mistreated” the corpse under the statute. The trial court denied both motions. Dougan presented no evidence on her behalf. The jury returned a verdict finding Dougan guilty as charged. After hearing evidence during the sentencing phase, the jury recommended that Dougan be sentenced to six years’ imprisonment and assessed a $10,000 fine. The trial court entered judgment against Dougan accordingly, and she appeals.

I. Constitutionality of Ark. Code Ann. § 5-60-101

Dougan maintains that the trial court erred in denying her motion to dismiss on the grounds that the abuse of corpse statute, Ark. Code Ann. § 5-60-101 (Repl. 1993), is unconstitutionally vague. The statute provides in pertinent part as follows:

(a) A person commits abuse of a corpse if, except as authorized by law, he knowingly:
(1) Disinters, removes, dissects, or mutilates a corpse; or
(2) Physically mistreats a corpse in a manner offensive to a person of reasonable sensibilities.

Dougan was charged under subsection (a)(2) of this statute. At a pretrial hearing, Dougan moved to dismiss the charge “based on the absence of judicial decisions within the statute itself.” Particularly, Dougan argued that the statute provides no definitions for the terms “physically mistreats,” “in a manner offensive,” and “reasonable sensibilities,” and thus, the statute “fails to reasonably prescribe the conduct that is prohibited.” At the conclusion of the hearing, the trial court summarily denied Dougan’s motion to dismiss.

We set forth the procedures for determining whether a statute is unconstitutionally vague in State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992):

Our review of challenges to the constitutionality of statutes begins with the principle that statutes are presumed to be constitutional. The burden of proving a statute is unconstitutional is upon the party challenging it. If it is possible to construe a statute as constitutional, we must do so.
The norm by which we determine when a statute is void-for-vagueness is whether it lacks ascertainable standards of guilt such that persons of average intelligence must necessarily guess at its meaning and differ as to its application. The law must give fair warning in definite language of the prohibited act. In addition to fair warning, a statute is also void-for-vagueness if it is so broad that it becomes susceptible to discriminatory enforcement. Nevertheless, flexibility, rather than meticulous specificity or great exactitude, in a statute is permissible as long as its reach is clearly delineated in words of common understanding. Moreover, impossible standards of specificity are not constitutionally required, even in criminal statutes. A statute will meet constitutional muster if the language conveys sufficient warning when measured by common understanding and practice. Additionally, it is not necessary that all kinds of conduct falling within the reach of the statute be particularized and the statute will not be struck down as vague only because marginal cases could be put where doubts might arise.

309 Ark. at 424-425. (Citations omitted and emphasis added.) See also Manati v. State, 311 Ark. 17, 842 S.W.2d 845, cert. denied 113 S.Ct. 1647 (1992); heavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993); Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994).

We have not had occasion to interpret Ark. Code Ann. § 5-60-101. However, we have recognized that the common law in force at the time the statute was passed is to be taken into account in construing undefined words of the statute. Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987); citing State v. Pierson, 44 Ark. 265 (1884). In ascertaining the common law, we look not only to our own cases, but to early English cases, early writers on the common law, and cases from other states. Meadows v. State, supra; citing Ark. Stat. Ann. § 1-101 (Repl. 1976); Baker v. State, 215 Ark. 851, 223 S.W.2d 809 (1949). In Baker, the appellant kept the body of an elderly man for approximately five days after his death for the purpose of receiving and cashing his welfare check, and was prosecuted for “treating a dead body indecently” under the common law. During these five days, “[decomposition of and other ghastly conditions of the body had occurred.” Id. at 853. In rejecting Baker’s argument that she had committed no offense, we relied in part on the following authorities:

In 17 C.J. 1148, in discussing offenses against dead bodies, this appears: “At common law it was an offense to treat the dead human body indecently, and various specific offenses were recognized. Ordinarily it is a misdemeanor for one upon whom the duty is imposed of having a dead body buried to refuse or neglect to perform such duty.
Wharton’s Criminal Law, 12th Ed., Vol. II, § 1704, says: “Indecency in treatment of a dead human body is an offense at common law, as an insult to public decency. Hence it is indictable to expose such a body without proper burial;...”

Id. at 854. (Emphasis added.) Although Baker was relieved from the common law burden of providing burial for the decedent, we held that the jury was justified in finding her guilty of the common law offense of “treating a dead body indecently.”

Model Penal Code § 250.10 defines the offense of “abuse of corpse” as follows: “Except as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor.” In Comment 2, the drafters of the Model Penal Code state as follows:

[This offense] covers one “who treats a corpse in a way that he knows would outrage ordinary family sensibilities.” This phrasing includes sexual indecency but is not so limited. It also reaches physical abuse, mutilation, gross neglect, or any other sort of outrageous treatment of a corpse. The overreaching purpose is to protect against outrage to the feelings of friends and family of the deceased . . .
The distinguishing features of the Model Code offense are the generality and comprehensiveness with which the proscribed conduct is defined. Section 250.10 covers any conduct that would “outrage ordinary family sensibilities.” This formulation is sufficiently broad to preclude gaps in coverage and yet sufficiently precise in its statement of the ultimate question to provide a meaningful standard of decision. Any possible problems of indeterminacy and lack of notice to the actor are resolved by the requirement of knowledge with respect to the outrageous character of his conduct. Thus, the person who is not aware that his acts would offend family sensibilities does not commit an offense under this section, even though precisely that reaction obtains. Of course, the actor’s idiosyncratic view of what is outrageous does not matter. The standard is objective; it does not vary either to exculpate on the basis of the actor’s unusual callousness or to condemn for outraging an excessively delicate relative of the deceased.

Model Penal Code § 250.10, Comment 2 (1980). The drafters depict the Arkansas, statute as “a generic approach to defining the proscribed conduct but limit[ing] the offense to physical mistreatment that would be offensive or outrageous to ordinary sensibilities.” Id.

At least two states have upheld similar statutes against void-for-vagueness challenges. Ohio Revised Code Annotated (Anderson) § 2927.01(B) provides that “no person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities.” A violation of this provision constitutes “gross abuse of a corpse” and is a felony offense. In State v. Glover, 479 N.E.2d 901 (Ohio App. 1984), the Ohio Court of Appeals reversed a trial court’s pretrial dismissal of an indictment against Glover for gross abuse of a corpse on the basis that the statute was unconstitutionally vague. In Glover, the Ohio Court of Appeals determined that “[t]he words, ‘treat,’ ‘human corpse,’ ‘way,’ ‘outrages,’ and ‘sensibilities,’ are commonly understood by persons of common intelligence.” 479 N.E.2d at 904, citing Webster’s New International Dictionary (2 Ed. 1954) 2699, 597, 2890, 1734, and 2279. In recognizing that, in the area of obscenity, courts have consistently approved legislation that required a factfinder to apply contemporary community standards, the Glover court concluded that the Ohio statute was not unconstitutionally vague. Id.; see also State v. Gardner, 582 N.E.2d 1014 (Ohio App. 6 Dist. 1989).

Pennsylvania’s abuse of corpse statute, like Ohio’s statute, closely follows the Model Penal Code approach. See 18 Penn. Stat. Ann. § 5510. In Commonwealth v. Smith, 567 A.2d 1070 (Pa. Super. 1989), alloc. den. 585 A.2d 468 (Pa. 1991), the Pennsylvania Superior Court considered the issue of “whether a person who knowingly leaves a corpse to rot, without making proper arrangements for a proper burial has ‘treat[ed] a corpse in a way that [s]he knows would outrage ordinary family sensibilities.’ ” 567 A.2d at 1073. Smith, a habitual user of cocaine, had a history of neglecting her three-year-old daughter, who died of malnutrition. The decomposed and mummified body of the girl was found in a kneeling position at the foot of her bed with her head laying over her folded hands on the bed. The door of the room had been locked from the outside by means of a rope that was tied to the outside of the door and attached to another doorknob. Smith said she concealed her daughter’s corpse because she was “afraid and confused.” Id. The Pennsylvania Court of Appeals, noting that “the purpose of drafting the statute in a very broad and general language was to insure that offenses such as concealing a corpse came within the purview of the statute,” affirmed Smith’s conviction for abuse of corpse. Id. In so holding, the Smith court reasoned that by concealing the corpse, Smith allowed it to be eaten by rodents and become mummified, and that her conduct constituted an outrage to ordinary family sensibilities. Id. See also John S. Herbrand, Annotation, Validity, Construction, and Application of Statutes Making it a Criminal Offense to Mistreat or Wrongfully Dispose of Dead Body, 81 A.L.R.3d 1071 (Supp. 1995).

In sum, we cannot conclude that our statute is unconstitutionally vague, as it conveys fair and sufficient warning when measured by common understanding. Particularly, the words “physically” and “mistreats” are commonly understood. The word “physical” is defined as “of or relating to the body,” and the term “mistreat” as “to treat badly: abuse.” See Webster’s Ninth New Collegiate Dictionary 760, 887 (1988). As recognized by the drafters of the Model Penal Code offense, any possible problems of indeterminacy and lack of notice to Dougan and others similarly charged are resolved by the requirement of knowledge with respect to the outrageous character of her conduct. Moreover, our position is supported by decisions upholding the Model Penal Code offense, which is written more broadly than § 5-60-101. For these reasons, we reject Dougan’s argument that the statute is unconstitutionally vague.

II. Sufficiency of the evidence

For her second assignment of error, Dougan asserts that the State’s evidence was insufficient to establish that she “physically mistreat[ed]” the corpse of her stillborn child within the purview of Ark. Code Ann. § 5-60-101(a)(2) (Repl. 1993). At the close of the State’s case in chief, Dougan moved for a directed verdict on the basis that the State failed to produce evidence of any physical harm to the child. She further argued that she was not charged with improper disposal of a body or improper burial. The State responded that the placing of a corpse in the dumpster constituted physical mistreatment of that corpse. The trial court denied the motion.

Prior to the enactment of the Arkansas Criminal Code in 1975, the Commentary to Ark. Stat. Ann. § 49-2921 (Repl. 1977), provided as follows:

This section is designed to cover not only sexual assaults on dead human bodies but also lesser forms of mishandling, abúse, or even neglect. Its former statutory counterpart was found in old Ark. Stat. Ann § 41-3701 (removal of body from grave), 41-3702 (purchasing body), 41-3703 (Repl. 1964) (opening grave). The primary purpose of the section is to protect the feelings of family of the deceased person.

(Emphasis added.) In light of this Commentary, we believe that the legislature intended that § 5-60-101 cover Dougan’s placement of her baby’s corpse in a dumpster, as such an act constitutes a form of mishandling, abuse, or neglect. In light of the evidence presented, we cannot agree that there was insufficient proof from which the jury could have concluded that Dougan’s conduct amounted to physical mistreatment of a corpse in a manner offensive to a person of reasonable sensibilities.

Affirmed.


author: David Newbern, Justice.

text:
    Barbara PATTERSON, Administratrix of the Estate of Catherine Patterson v. Donald B. ODELL, Jr.; Donald B. Odell, Sr.; Ida J. Odell; and Eric T. Vollmer
    95-245
    909 S.W.2d 648
    Supreme Court of Arkansas
    Opinion delivered November 13, 1995
    [Petition for rehearing denied December 18, 1995.]

      The Rose Law Firm, A Professional Association, for appellant.

      Anderson & Kilpatrick, by; Michael E. Aud, for appellees.

      Laser, Wilson, Bufford & Watts, P.A., by: Brian Allen Brown, for appellee Eric T. Vollmer.

      Glaze, J., not participating.

   David Newbern, Justice.

Barbara Patterson, the appellant, brought this wrongful death action as personal representative of her daughter, Catherine Patterson, who was killed in a 1987 automobile collision. Catherine Patterson was a passenger in a car which belonged to appellees Donald B. Odell, Sr., and Ida J. Odell. The Odell’s car was being driven by their son, appellee Donald B. Odell, Jr., when it collided with one driven by appellee Eric T. Vollmer. Catherine Patterson died from a head injury received in the crash. Negligence on the part of each driver was alleged. A jury returned a verdict in favor of the drivers, and a judgment was entered in their favor.

Barbara Patterson contends the Trial Court erred by granting a motion in limine to prohibit introduction of evidence that both drivers pleaded nolo contendere to the charge of negligent homicide resulting from the collision. She also asserts error in failure to grant a new trial on the ground that the verdict was contrary to the preponderance of the evidence. We affirm the judgment.

The Odell vehicle in which Catherine Patterson was a passenger was a 1970 Volkswagen “Bug.” A light mist was falling as Mr. Odell drove east on Lee Avenue. Mr. Vollmer was driving south on Elm Street. Mr. Vollmer stopped at the intersection of Lee and Elm which is designed so that a vehicle southbound on Elm must turn west, or right, onto Lee and travel a short distance before making a left hand turn to continue south on Elm. When Mr. Vollmer crossed the intersection, his Toyota was struck by Mr. Odell’s Volkswagen.

Mr. Odell and Mr. Vollmer moved in limine to suppress any evidence concerning their nolo contendere pleas to criminal charges of negligent homicide resulting from the accident. The motion was granted, thus the Trial Court refused to allow Officer Verkler, the investigating officer, to testify as to what occurred in municipal court. Ms. Patterson submitted to the Trial Court that, if allowed, she would have produced testimony from Officer Verkler that Mr. Odell and Mr. Vollmer were present in court and pleaded nolo contendere to the charge of negligent homicide. Although no formal proffer of Officer Verkler’s testimony was made, it is clear that the substance of the testimony excluded was apparent and was made known to the Trial Court. See Ark. R. Evid. 103(a)(2); Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983).

Ms. Patterson produced testimony from Officer Howard, an expert in accident reconstruction, who examined the scene at the time of the accident. He estimated that the impact speed of Mr. Odell’s vehicle was 59 miles per hour and that Mr. Vollmer’s speed was 23 miles per hour. He also testified that a person could see from the intersection approximately 151 feet west (the direction from which the Odell vehicle came) of the intersection and that Mr. Odell and Mr. Vollmer should have been able to see each other in time to avoid the accident if each had maintained a proper lookout. Officer Howard added that the view of the intersection from the stop sign on Elm was obscured by foliage.

Mr. Vollmer, who is blind in his right eye, testified he was very familiar with the intersection and that he stopped at the stop sign and then rolled forward slowly so that he could see down the street. He said he turned his head further to the right to compensate for his blindness and that he did not know why he had not seen the Odell vehicle. He said he did not think Mr. Odell was at fault for the accident. Mr. Odell, who was rendered unconscious in the accident, testified he had no recollection of it and could not remember how fast he was driving. He stated he did not feel he was responsible for the accident.

Mr. Bentley, an accident reconstruction expert, testified for the defense. He opined that the impact speed was probably between 33 and 37 miles per hour for the Odell vehicle and 11 to 13 miles per hour for the Vollmer vehicle. He stated that the basis for his opinion was a drag coefficient which was lower than Officer Howard’s and the results of crash tests which showed that there would have been far more extensive damage to the Volkswagen than that which it sustained had it been going nearly 60 miles per hour. Mr. Bentley disagreed with the drag coefficient used by Officer Howard to estimate the point of impact speed because he believed it failed to take into account the polished surface of the road, the wet conditions, and the weight of all three passengers in the Odell vehicle. He also said Officer Howard confused a skid mark, which is helpful in determining impact speed, with a yaw mark which is not helpful. Finally, Mr. Bentley stated that the accident was unavoidable.

1. Exclusion of the nolo contendere pleas

It is important to realize at the outset of this discussion that it does not involve admissibility of any conviction which may have been based upon the pleas of nolo contendere. The negligent homicide charges were brought pursuant to Ark. Code Ann. § 27-50-307 (Repl. 1994), and Ark. Code Ann. § 27-50-804 (Repl. 1994), which provide that “No record of . . . the conviction of any person for any violation of this subtitle shall be admissible as evidence in any court in any civil action.” Both statutes are contained in subtitle 4 entitled “Motor Vehicular Traffic.” There was no attempt to introduce a conviction record, so the question is whether the pleas alone may be introduced.

No doubt a conviction based on a plea of nolo contendere with respect to other than a traffic offense may be admissible in a subsequent criminal trial, see Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993); Lewis v. State, 258 Ark. 242, 523 S.W.2d 920 (1975), and a plea of guilty may be admissible as a statement against interest in a subsequent civil case MFA Mut. Ins. Co. v. Dixon, 243 F.Supp. 806 (W.D. Ark. 1965), but those cases do not answer the question here.

Ms. Patterson bases her argument largely on the wording of Ark. R. Evid. 410 which provides:

Withdrawn pleas and offers. — Evidence of a plea later withdrawn, of guilty, or admission of the charge, or nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.

Ms. Patterson argues that the rule, by its plain language taken from the Uniform Rules of Evidence, only applies to suppression of a plea of nolo contendere if it is later withdrawn. She then submits that, as the rules do not specifically address a nolo contendere plea which is not withdrawn, it is admissible in the same manner as a guilty plea. Obviously, the language of rule 410 does not “authorize” in so many words the admission of a nolo contendere plea. The rule does no more than disallow withdrawn pleas. Ms. Patterson’s argument thus must be based upon an implication rather than a direct statement in the rule.

The argument is buttressed by Ms. Patterson’s citations to the federal and other state rules which, unlike the original uniform rule 410 which we have retained, have been altered to provide that a withdrawn plea of guilty is inadmissible as is a plea of nolo contendere, whether or not withdrawn. Her contention is that the failure to make the change in the Arkansas rule indicates an intent on the part of the drafters that a nolo contendere plea be admissible. She points out that in some other states which have left the language as we have it here there is to be found an expression of intent that nolo contendere pleas be admissible. See, e.g., Rhode Island Rule of Evidence 410 and Advisory Committee Notes (1994). She does not suggest that there is any such expression in the law of Arkansas.

Ms. Patterson especially wanted the plea of Mr. Odell entered in order to impeach his statement that he felt no responsibility for the accident. We assume she also feels that the plea of Mr. Vollmer amounted to some sort of statement with respect to whether he was guilty of negligence. She contends the pleas were admissible in accordance with Ark. R. Evid. 613 which deals with a “prior inconsistent statement,” and Rule 801(d)(2) concerning an “admission” of a party opponent. These contentions require consideration of the nature of a plea of nolo contendere.

Generally, a plea of guilty in open court is admissible as a declaration against interest. Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). “A plea of guilty for traffic violation for the identical traffic mishap is certainly a declaration against interest and such plea of guilty is as admissible as any other declaration against interest in any other case.” Harbor v. Campbell, 235 Ark. 492, 360 S.W.2d 758 (1962).

We have been cited to no Arkansas authority which defines or describes the effect of a nolo contendere plea, and we have found none. Black’s Law Dictionary, p. 591 (5th ed. 1979), defines and describes it as follows:

Latin phrase meaning “I will not contest it”: a plea in a criminal case which has a similar legal effect as pleading guilty. Hudson v. U.S. 272 U.S. 451 ... Type of plea which may be entered with leave of court to a criminal complaint or indictment by which the defendant does not admit or deny the charges, though a fine or sentence may be imposed pursuant to it. The principal difference between a plea of guilty and a plea of nolo contendere is that the latter may not be used against the defendant in a civil action based upon the same acts.
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The history of the plea of nolo contendere is recited in Hudson v. U.S., 272 U.S. 451 (1926), where the Supreme Court, in an obiter dictum, stated, “Like the implied confession, this plea does not create an estoppel [of the defendant to plead and prove his innocence in a civil action], but, like the plea of guilty, it is an admission of guilt for the purposes of the case. [Emphasis supplied.]”

The Trial Court stated his reasons for granting the motion in limine as follows:

First of all, I found no precedent for [allowing evidence of a plea of nolo contendere] in the state. Secondly, the attorney who wanted to offer that testimony, it took him several pages in his brief to explain the nature of a nolo contendere plea in Arkansas and all that it entails, and I believe, in order to let that in, you have to allow all of the testimony on both sides about what a nolo contendere entails and what it doesn’t, and I don’t want to add to the trial by putting all that extra in ... .

The decision on the motion is subject to two interpretations. The implied reference to confusing the jury and undue delay suggest perhaps the Trial Court intended the ruling to be pursuant to Ark. R. Evid. 403 which provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

On the other hand, it may have been the Trial Court’s intention to hold that evidence of a plea of nolo contendere is inadmissible because it would require additional evidence as it simply has no meaning. The plea may, of course, be entered because an accused who does not wish to admit guilt wants to avoid the financial and emotional expenditures attendant upon a criminal trial and is thus willing to accept punishment. That is the traditional view, as expressed in the Hudson case and in others such as U.S. v. Morrow, 537 F.2d 120 (5th Cir. 1976), in which it was held, quoting Mickler v. Fahs, 243 F.2d 515 (5th Cir. 1957):

A plea of nolo contendere is a mere statement of unwillingness to contest and no more. It is not receivable in another proceeding as evidence of guilt.... The same reasons which make the evidence of a plea of nolo contendere inadmissible as an admission will exclude it in a jury trial when offered for the purposes of impeachment.

See also People v. Daiboch, 265 N.Y. 125, 191 N.E. 859 (1934); Dalweld Co. v. Westinghouse Elec. Corp., 252 F.Supp. 939 (S.D.N.Y. 1966).

Other older cases, not based on a codified rule of evidence, seem to say only that one who has pleaded nolo contendere is not estopped thereby from proving his or her innocence in a related civil proceeding, an allusion found in the quotation from the Hudson case, supra. State v. Bridgett, 210 A.2d 182 (Conn. App. 1965); Kravis v. Hock, 136 N.J.L. 161, 54 A.2d 778 (1947). Presumably such a holding would admit evidence of the plea but permit explanation of it, thus adding an element to the civil proceeding which could have a distracting if not highly prejudicial effect.

We prefer the rule which excludes evidence of the plea altogether. While the Trial Court’s ruling may have been on the basis of Rule 403 rather than on the basis of inadmissibility of the evidence, we are at liberty to affirm for a reason different from the one he expressed. Hubbard v. The Shores Group Inc., 313 Ark. 498, 855 S.W.2d 924 (1993); Summers Chevrolet Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992).

2. The new trial motion

When a motion for a new trial is made on the ground that the verdict is clearly contrary to the preponderance of the evidence, Ark. R. Civ. P. 59(a)(6), we affirm if the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible in accordance with the proof. First Marine Ins. Co. v. Booth, 317 Ark. 91, 876 S.W.2d 255 (1994); Gilbert v. Shine, 314 Ark. 486, 863 S.W.2d 314 (1993).

Essentially, Ms. Patterson contends that there was not sufficient evidence to support the jury verdict because the accident could not have happened if both drivers were free of negligence. She contends Mr. Vollmer was negligent for failing to see Mr. Odell, and failing to yield the right of way, or that Mr. Odell was negligent for speeding and failing to keep a proper lookout. She relies primarily on the testimony of her expert witness, much of whose testimony was contradicted by the expert produced by the defense. It is within the province of the jury to believe or disbelieve the testimony of any witness, Hodges v. Jet Asphalt, 305 Ark. 466, 808 S.W.2d 775 (1991); Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989), and the rebuttal evidence was substantial.

Affirmed.

Brown and Roaf, J.J., concur.

Glaze, J., not participating.