author: Robert L. Brown, Justice. Donald L. Corbin, Justice,

text:
    Kendall DILLON v. STATE of Arkansas
    CR 92-58
    844 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993

      Harold W. Madden and Tom F. Donovan, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Kendall Dillon, raises sixteen points in his appeal from a conviction for rape and a sentence of thirty-three years. Three points concern prosecutorial misconduct in the cross-examination of two defense witnesses and of Dillon himself. We agree that the cumulative effect of statements made by the prosecutor in the cross-examination was prejudicial to Dillon and denied him a fair trial. We, therefore, reverse and remand the case for a new trial.

FACTS

On November 19,1990, Kendall Dillon, who at the time was a Pulaski County Deputy Sheriff, was charged with the crime of rape. The charge resulted from an incident that occurred at about 5:00 a.m. on October 10,1990, when Dillon, who was in his patrol car, stopped Tammy Falcone, an employee of the Checkmate Club, near McCain Mall in North Little Rock. According to Falcone’s testimony, Dillon called in her license and tag numbers and informed her that a warrant had been issued for her arrest for hot checks. He instructed her to follow him to her car. She obeyed, and followed him to Sherwood, where they parked in a lot near Kiehl Avenue. Dillon ordered her into his car and then drove her to a secluded gravel road.

Falcone offered Dillon her tip money if he would let her go, but he replied that he wanted her, not her money. She told him that she wanted to go home to her children, but Dillon began playing with her hair, kissing her, fondling her breasts, and inserting his fingers in her vagina. Falcone testified that she feared she would die if she attempted to get away. When a car passed by, Dillon stopped. He then returned her to her car and warned her not to tell anyone.

Two days later, on October 12,1990, Dillon stopped Brenda Kaup, according to her testimony at trial, and instructed her to raise her brassiere and pull down her pants and panties while she sat in his patrol car. No criminal charges were filed in connection with that incident, but Kaup sued Dillon in federal district court. Kaup’s testimony was admitted at Dillon’s trial.

Dillon was convicted and sentenced after a three-day trial.

I. PROSECUTORIAL MISCONDUCT

Dillon points to several instances of prejudicial statements made by the prosecutor at trial, none of which was supported by proof.

The first was in the form of a question on cross-examination to Lieutenant Mike Adams of the Pulaski County Sheriffs Department under whom Dillon worked:

PROSECUTOR: Were you aware of any complaints against Mr. Dillon about his treatment of women, particularly threatening to plant drugs on them in exchange for sex?
DEFENSE COUNSEL: Your Honor, I object to that characterization; it is a leading statement.
THE COURT: Don’t lead your witness, Ms. Ferrell. You may rephrase the question.
DEFENSE COUNSEL: Your Honor, may I approach the bench?
THE COURT: Please do.
(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)
DEFENSE COUNSEL: Your Honor, that question was leading. The allegation was made from specific acts, and I would —
THE COURT: I sustained your objection to the leading.
DEFENSE COUNSEL: And it was rude of Ms. Ferrell because of the specific act that was implied.
PROSECUTOR: He opened the door by saying that he did a good job and how he arrested these women in performance of his duties is relevant to how he would do his job.
DEFENSE COUNSEL: Not to that kind of question, Your Honor. He didn’t open any door, and I do move for a mistrial.
THE COURT: Denied.
DEFENSE COUNSEL: And I ask for the Court to instruct the jury. The question was improper and they’re to disregard it.
THE COURT: I’m not going to over-emphasize it, but. . . I’m going to sustain your objection to the leading question.

Without any proof to support the insinuation, the prosecutor forged the distinct impression in the minds of the jurors that complaints against Dillon existed for threatening to plant drugs on women in exchange for sex.

The second improper comment occurred in the prosecutor’s cross-examination of Chief Deputy Jerry Bradley of the Faulkner County Sheriffs Department:

PROSECUTOR: Well, were you aware of whether — Were you aware that the defendant resigned from the Conway Police Force?
BRADLEY: Yes.
PROSECUTOR: So you are aware of why he resigned from the Conway Police Force?
BRADLEY: I have no direct knowledge of why he resigned.
PROSECUTOR: You have no direct knowledge?
BRADLEY: No.
PROSECUTOR: You have no direct knowledge, but you are aware that it’s because he forced sex on —
DEFENSE COUNSEL: Your Honor, I want to object to her making any statement of —
THE COURT: Now, just a minute. If he doesn’t know why, doesn’t have any direct knowledge of it, then that’s it.
PROSECUTOR: Are you also aware that he resigned from the Morrilton Police Force?
BRADLEY: Yes, Ma’am.
PROSECUTOR: So you’re aware of why he resigned there, as well, aren’t you?
BRADLEY: No.
PROSECUTOR: And are you aware —
BRADLEY: I have no direct knowledge of why he resigned from any department. He also worked for Mayflower at one time, but I —
PROSECUTOR: And you know he resigned from Mayflower?
BRADLEY: Yes.
PROSECUTOR: And you know he resigned from UCA?
BRADLEY: I’m sorry. I don’t ever remember him working for UCA.
PROSECUTOR: As a security at UCA?
BRADLEY: No, I don’t. I don’t remember that.
PROSECUTOR: So you’re aware that he resigned from Mayflower, that he resigned from Conway, he resigned from Morrilton, and now you’re aware that he resigned from the Pulaski County Sheriffs Department. Is that correct?
BRADLEY: I didn’t know he had resigned from Pulaski County. I didn’t know what his involvement there was.
PROSECUTOR: And are you aware that these were all forced resignations?
DEFENSE COUNSEL: Your Honor, I want to object to that. And at this time, Your Honor, may I approach the bench?
(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)
DEFENSE COUNSEL: Your Honor, the witness has testified that he had no direct knowledge. She is asking, “Are you aware that he was forced to resign?” He’s already said he had no direct knowledge. At this time, I’d move for a mistrial. She has prejudiced us before this jury
THE COURT: But —
DEFENSE COUNSEL: — and it’s totally prejudicial, after he said that he had no direct knowledge of it.
THE COURT: How much more do you want him to say about it?
PROSECUTOR: I elicited of him — but this is my last question of this witness.
DEFENSE COUNSEL: It’s one too many, Your Honor.
THE COURT: I’m not going to order a mistrial at this point, but don’t do that any more.
PROSECUTOR: Okay, no, Your Honor.
THE COURT: You’re that close to it.
PROSECUTOR: I don’t dare.
DEFENSE COUNSEL: And, Your Honor, at this time, we’d ask —
THE COURT: Your motion is denied.
DEFENSE COUNSEL: But — Now, I understand that, but I have one more, and I ask that the jury be instructed to disregard that question.
(THEN, in the hearing of the jury.)
THE COURT: All right. Ladies and gentlemen of the jury, you’ll disregard that last question which was asked by Ms. Ferrell. Let’s move along. Any other questions of Chief Deputy Bradley?
PROSECUTOR: No, Your Honor.

Here, the prosecutor adroitly presented a mandated resignation due to “forced sex” in Faulkner County and then suggested “forced resignations” or suspensions in four other law enforcement agencies, including the Pulaski County Sheriffs Department and one security position at the University of Central Arkansas. Again, no proof was presented by the state to substantiate these implications of the most serious order. It is evident that the trial judge was alarmed by this strategy, and he told the prosecutor that she was “that close” to a mistrial.

The prosecutor next cross-examined Dillon on his suspensions from various law enforcement agencies:

PROSECUTOR: And you testified on direct that you’ve been a police officer with the Pulaski County Sheriffs Department for seven and a half years. Right?
APPELLANT: Yes.
PROSECUTOR: And that you left the Narcotics Division when you were promoted. Correct?
APPELLANT: Yes.
PROSECUTOR: But during that seven and a half years, that wasn’t the first time you were suspended, was it?
APPELLANT: No.
PROSECUTOR: You’d been suspended before for taking a woman to —
DEFENSE COUNSEL: Your Honor, I want to object.
THE COURT: You may ask him if he has been suspended and then ask him what for. If it goes to truthfulness, I’ll allow it.
PROSECUTOR: Okay.
(THEN, in the hearing of the jury.)
PROSECUTOR: Have you been suspended before?
APPELLANT: Yes.
PROSECUTOR: What was it for?
DEFENSE COUNSEL: Your Honor, at this time, I’d like to state that unless it has do with truthfulness or untruthfulness, I would object to the question.
THE COURT: Well, you see, I don’t know.
DEFENSE COUNSEL: Well, then no proper foundation has been laid for the question.
THE COURT: Overruled. Go ahead.
PROSECUTOR: What was it for?
APPELLANT: I’d have to refer to the letter of suspension. I believe it was for not remaining quiet in school and misuse of a department vehicle.
PROSECUTOR: Misuse of a department vehicle? What did you misuse it for?
DEFENSE COUNSEL: Your Honor, I object. That has nothing to do with truthfulness or untruthfulness.
(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)
THE COURT: Do you have proof as to what he’s been suspended for?
PROSECUTOR: Yes, I do.
THE COURT: Well, ask him those specific questions that deal with truthfulness or untruthfulness, and using a vehicle improperly would not go to that. I’ll just give you a little hint.
PROSECUTOR: Okay.
In an in camera conference with trial counsel, the prosecutor indicated that she wished to ask two more questions about alleged prevarications by Dillon but did not intend to back up the questions with witnesses. A discussion then followed:
THE COURT: Aren’t those questions sort of like do you still beat your wife?
PROSECUTOR: Your Honor, they are prior incidences of —
THE COURT: (Interposing) Well, that is fine if you can back those up and prove them, then that is proper, but just to ask them and have no proof of it is not only improper, it is not fair. Is that the only two other questions you have left?
PROSECUTOR: Yes.
THE COURT: Okay. Let’s don’t ask those. And you can go back and finish up with something else if you like.
PROSECUTOR: Okay.

When error accumulates in a criminal case, this court has recognized that the impact may be prejudicial, and we have reversed a decision by the trial court. Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978). We considered a motion to suppress a search warrant in Harris and concluded that the warrant should have been suppressed as defective. The municipal court did not adequately specify on the warrant the place to be searched. Also, the judicial officer made no finding whether it was a daytime or nighttime search (the warrant may have been served as early as 5:00 a.m.), and no receipt for the items seized was given the defendant. The trial court noted “pretty much of a total disregard for the rules” but refused to find prejudice. We reversed due to the “accumulation of error,” saying:

It might be that alone the discrepancies in this case would not amount to prejudicial error. However, when considered together, we must conclude that the almost total disregard for the Rules cannot be ignored. What it all comes down to is where do we draw the line? We draw the line here. The State has not demonstrated that a reasonably good faith effort was made to comply with the Rules. The evidence is, in fact, to the contrary.

264 Ark. at 395, 572 S.W.2d at 391.

A second case from a foreign jurisdiction approximates the case at bar and offers additional justification for reversal. See State v. Soares, 815 P.2d 428 (Hawaii 1991). The offense at issue in Soares was the robbery of a convenience store. The appellants were convicted and, on appeal, urged prosecutorial misconduct. The Hawaii Supreme Court agreed and reversed and remanded, giving as part of its reasoning the following:

We have repeatedly stated that “[t]he duty of the prosecution is to seek justice, to exercise the highest good faith in the interest of the public and to avoid even the appearance of unfair advantage over the accused.” [Citing authority.] In this case, the record contains numerous examples of the prosecutor’s disregard for appellants’ right to a fair trial. For example, during jury selection, the prosecutor asked a prospective juror her feelings about someone who did something wrong but did not have adequate counselling in his or her “formative years.” After Soares’ counsel objected and asked the court to instruct the prospective jurors not to infer from any of the attorneys’ questions that anyone had done anything wrong, the prosecutor remarked, “if nobody has done anything wrong, we wouldn’t be here.”
Further examples of the prosecutor’s misconduct include the prosecutor’s repeated attempts to introduce evidence previously excluded by motion in limine, numerous “speaking objections,” and leading questions.
Although no single instance of prosecutorial misconduct substantially prejudiced appellants’ right to a fair trial, we find that the cumulative weight of the prosecutor’s improper conduct was so prejudicial as to deny appellants a fair trial. [Citing authority.]

815 P.2d at 430-431.

In the present case, the prosecutor crafted a mosaic of a defendant who 1) had planted drugs on women in exchange for sex; 2) had resigned from the Conway Police Department because he had forced sex on someone; 3) had been forced to resign from four other law enforcement agencies and one security job, apparently for the same reason; and 4) had been suspended from the Pulaski County Sheriffs Department for “taking a woman,” the implication in light of the charge and the other insinuations being that the woman was taken for sex.

As in Soares, the prosecutor’s accumulated remarks in this case combined to deny Dillon a fair trial. One comment built on the next until the jury could readily have believed that Dillon had been fired repeatedly from law enforcement positions because he forced sex on women. Yet the prosecutor offered no evidence that any one of these accusations was true. The net result was guilt by insinuation.

We cannot say that the prosecutor’s comments, overly zealous as they were, did not taint the jury’s decision and, indeed, we conclude exactly to the contrary. Our system of criminal justice is founded on the twin cornerstones of fairness and proof beyond a reasonable doubt. Here, the appellant was subjected to an onslaught of accusations which he had no way of defending against because the accusations were unsubstantiated. The prejudice to his case was palpable.

II. POINTS ON RETRIAL

There are several points that may well reoccur in a second trial.

On cross-examination, the State was allowed to use a transcript to inquire into whether Dillon had told the truth while testifying under oath in a court proceeding on October 26, 1984. In the earlier trial, the appellant declared that he had not made any specific promises to the defendant in that case; later, however, a tape was played in which it was clear that he had indeed made promises.

The appellant contends that this cross-examination violated A.R.E. 608(b), which bans, in general terms, proof of “[s]pecific instances of the conduct of a witness” by extrinsic evidence. But the Rule leaves to the court’s discretion the decision whether to permit inquiry concerning those instances that concern a witness’s “character for truthfulness or untruthfulness.”

Reference to a transcript of a prior proceeding involving the witness for the purpose of impeaching that same witness in the current trial is not the kind of extrinsic evidence prohibited by Rule 608(b). See 1 J.W. Strong, McCormick on Evidence, § 41, at p. 141 (4th Ed. 1992). We have also held that the credibility of a witness may be attacked, under Rule 608, under the following conditions: “1) the question must be asked in good faith, 2) the probative value must outweigh its prejudicial effect, and 3) the prior conduct must relate to the witnesses] truthfulness.” Mackey v. State, 279 Ark. 307, 316, 651 S.W.2d 82, 86 (1983).

Here, the prosecutor merely inquired into the past episode, and nothing in the record suggests that the question was not asked in good faith. The probative value of the query was high, given the critical need for the jury to evaluate the credibility of Dillon versus that of Tammy Falcone. No prejudice resulted to Dillon because the question elicited nothing about other sexual offenses. The point of the inquiry on cross-examination was to explore Dillon’s propensity for truthfulness. Accordingly, the questioning was permissible.

Dillon also objected to the testimony of Lieutenant Mike Adams concerning what Dillon told him about what happened when he pulled Falcone over to run a “warrant check.” This was improper, the appellant urges, because he had not received his Miranda warnings. However, at the time Dillon spoke with Adams, he was not “in custody” or “under arrest.” Hence, the Miranda requirement was not operative. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). Moreover, the appellant never sought a Denno hearing prior to trial as provided for by Ark. Code Ann. § 16-89-107(b)(1) (1987).

The circuit court allowed Brenda Kaup, Dillon’s purported victim on October 12, 1990, to testify under A.R.E. 404(b) because her testimony 'was evidence that Dillon followed a particular plan, or modus operandi, with Tammy Falcone. Dillon’s plan, as revealed by Kaup’s testimony, was consistent with the circumstances depicted in Falcone’s testimony. According to the respective testimony, both women were unaccompanied when they were pulled over. Both women were accused of crossing the center line, and both were ordered to get into the patrol car. Both women had family out of town: Falcone’s husband was in Saudi Arabia, and Kaup’s family lived out of state. In Kaup’s case, she stated that Dillon threatened to take her in for DWI but said perhaps he could work something out. At that point he obliged her to expose herself to him under the pretext of searching for drugs. He then released her and followed her to her babysitter’s house.

We have held that modus operandi evidence is admissible in rape cases to prove a common plan. Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971). This situation fits squarely within that holding.

Finally, “serious physical injury” is not an element of the crime of rape, and the circuit court correctly refused the appellant’s proffered modified version of AMCI 1803.

Reversed and remanded.

Hays, Glaze, and Corbin, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. Today, this court has determined that three improper questions by the prosecution amounts to prosecutorial misconduct and results in accumulation of error necessitating reversal. This, in spite of the fact that accumulation of error was not raised by appellant as a ground for reversal. Let us examine and discuss the sequence of the objections to the issues raised within the framework of this three day trial.

The first instance of alleged prosecutorial misconduct arose early in the trial when the prosecutor asked Lt. Mike Adams “ [w] ere you aware of any complaints against Mr. Dillon about his treatment of women, particularly threatening, to plant drugs on them in exchange for sex?” This was the prosecution’s first attempt to elicit testimony from a witnesses about improper behavior by appellant toward other women. Appellant objected to the question on the basis it was leading and asked for a mistrial. The court sustained appellant’s objection, but denied his motion for a mistrial. Upon denial of his motion for a mistrial, appellant asked that the jury be admonished to ignore the question. The court refused to instruct the jury to disregard the question saying “I’m not going to over-emphasize it, but... I’m going to sustain your objection to the leading question.” Appellant contends a mistrial should have been granted, but if a mistrial was not necessary, the trial court should have admonished the jury to disregard the question. Appellee argues appellant suffered no prejudice because the witness never answered the question and the instruction by the court at the end of the trial to the jury that “arguments, statements and remarks made by attorneys are not evidence and are to be disregarded if they have no basis in the evidence” cured any possible prejudice.

We have stated many times that the trial court has wide latitude of discretion in granting or denying a motion for mistrial and we will not reverse the decision of the trial court except for an abuse of discretion or manifest prejudice to the complaining party. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). I fail to find that the trial court abused its discretion in failing to grant a mistrial nor do I believe the denial of a mistrial resulted in manifest prejudice to appellant. The question was never answered by the witness and there was, therefore, no evidence before the jury about appellant threatening to plant drugs on women in exchange for sex. See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).

However, the refusal of the trial court to admonish the jury to disregard the question is a separate issue. Trial courts have wide discretion in evidentiary questions. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). In denying appellant’s requested admonition, the trial court said “I’m not going to overemphasize it, but. . . I’m going jto sustain your objection to the leading question.” While the requested admonishment should undoubtedly have been given, thfe failure to give the admonishment is not reversible error in this instance. We have held that it may be proper not to give an instruction because it may call undue attention to the evidence. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). Additionally, appellant objected at trial only on the basis the question was leading, not that the question was prejudicial. Bussard, 295 Ark. 72, 747 S.W.2d 71. The question was not answered, the trial court sustained the objection, and appellant did not inform the trial court that he wanted the admonition because the question was prejudicial. This was also the prosecuting attorney’s first attempt to elicit this improper information. Under these circumstances, I cannot say the trial court abused its discretion in not giving the requested admonition to the jury.

On cross-examination, the prosecutor asked Chief Deputy Jerry Bradley whether he was aware why appellant had resigned from the Conway Police Force. The witness replied he had no direct knowledge of why he resigned. The prosecutor then asked “[y]ou have no direct knowledge, but you are aware that it’s because he forced sex on — ” at which point appellant objected. The trial court sustained the objection. The prosecutor then continued to question the witness about whether he knew if appellant had resigned from other police departments and whether he knew the reasons for these resignations. The witness admitted knowing appellant had resigned from two other police departments, but did not know the reasons and did not know of appellant’s resignation from yet two other police departments. The prosecutor’s last question to the-witness was “[a]nd are you aware that these were all forced resignations?” Appellant objected to this question, a bench conference was held where appellant moved for a mistrial, which was denied, but the prosecutor was reprimanded and instructed not to “do that anymore. . . . You’re that close to it.” Appellant then asked for and received an instruction to the jury to disregard the question.

Appellant argues the entire line of questioning was improper and prejudicial because it put appellant in the position of defending other sexual crimes or acts other than the one at hand. At trial, appellant did not object on this basis and only objected on the basis that the witness had no direct knowledge of the reason for appellant’s resignation and asking the witness about the reason prejudiced appellant. Since appellant did not argue that the entire line of questioning was improper below, we should not consider this argument on appeal. Bussard, 295 Ark. 72, 747 S.W.2d 71.

In any case, a mistrial is only to be granted where any possible prejudice cannot be removed by an admonition to the jury. Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). Additionally, “we have held, with rare exceptions, that an admonition to the jury to disregard improper, and even prejudicial matters cures such mistakes.” Lackey v. State, 283 Ark. 150, 154, 671 S.W.2d 757, 759 (1984) (Hays, J., dissenting). The trial court has wide latitude of discretion in granting or denying a motion for mistrial and we do not reverse the decision of the trial court except for an abuse of discretion or manifest prejudice to the complaining party. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). I fail to see an abuse of discretion or manifest prejudice in this instance.

Appellant objected to the prosecution asking appellant about his prior suspension from the Pulaski County Sheriffs Department on the basis that it did not go to truthfulness and no foundation had been laid. On appeal, appellant argues the failure of the prosecutor “to demonstrate that the ‘bad acts’ about which she inquired were probative of truthfulness” prior to asking the question constituted prejudicial error. The following sets out the prosecution’s conduct and appellant’s objections in this area:

[PROSECUTION]: [Y]ou testified on direct that you’ve been a police officer with the Pulaski County Sheriffs Department for seven and a half years. Right?
[APPELLANT]: Yes.
[PROSECUTION]: But during that seven and a half years, that wasn’t the first time you were suspended, was it?
[APPELLANT]: No.
[PROSECUTION]: You’d been suspended before for taking a woman to —
[APPELLANT’S COUNSEL]: Your Honor, I want to object.
(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)
[APPELLANT’S COUNSEL]: Your Honor, she may ask him if he was suspended, but she may not bring up this other. It has nothing to do with truthfulness or untruthfulness
which is what those rules require before she could do any cross examining about this.
[PROSECUTION]: Your Honor, under the Rule, it says we can cross examine him about acting as a police officer for seven and a half years. If he feels it’s not relevant to this case, we can contribute this to the witness’ credibility. In opening he said, I will prove it because he has worked for long standing as a police officer. That’s an exact quote from the opening statements, I believe. It places his own character into issue seven and a half years later, when we
THE COURT: You may ask him if he has been suspended and then ask him what for. If it goes to truthfulness, I’ll allow it.
[PROSECUTION]: Okay.
(THEN, in the hearing of the jury.)
[PROSECUTION] CONTINUING: Have you been suspended before?
[APPELLANT]: Yes.
[PROSECUTION]: What was it for?
[APPELLANT’S ATTORNEY]: Your Honor, at this time, I’d like to state that unless it has [to] do with truthfulness or untruthfulness, I would object to the question.
THE COURT: Well, you see, I don’t know.
[APPELLANT’S ATTORNEY]: Well, then no proper foundation has been laid for the question.
THE COURT: Overruled. Go ahead.
[PROSECUTION] CONTINUING: What was it for?
[APPELLANT]: I’d have to refer to the letter of suspension. I believe it was for not remaining quiet in school and misuse of a department vehicle.
[PROSECUTION]: Misuse of a department vehicle? What did you misuse it for?
[APPELLANT’S COUNSEL]: Your Honor, I object. That has nothing to do with truthfulness or untruthfulness.
(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)
THE COURT: Do you have proof as to what he’s been suspended for?
[PROSECUTION]: Yes, I do.
THE COURT: Well, ask him those specific questions that deal with truthfulness or untruthfulness, and using a vehicle improperly would not go to that. I’ll just give you a little hint.
(THEN, in the hearing of the jury.)
[PROSECUTION]: Your Honor, may we approach?
THE COURT: Do you think we could work some of these things out if we’d take about a ten minute break so that you don’t have to continue coming up, back and forth? The jury and I would like to get through with this trial sometime. Let’s take about a ten minute break, ladies and gentlemen, and be back at five after 2:00.
(THEREUPON, Court was in recess until 2:05 p.m. during which time the following proceedings took place, in chambers:)
THE COURT: All right. Let’s see if we can work out what you want to ask so that you don’t have to have every question you ask have an objection to it and coming up to the bench.
[PROSECUTION]: Yes, Your Honor, I will be glad to do that. I have two more questions. One is, do you remember telling Lisa Craig Short’s parents that you did not know where she was when, in fact, she was in your hotel room?
THE COURT: How are you going to prove that... if he says no? Aren’t you stuck with that then and are you going to bring the girl and her parents in to testify to that?
[PROSECUTION]: No, Your Honor. First of all, I don’t believe he has opened the door on direct examination for me to do that. I do have the material from the Conway Police Department that details it, Ms. Craig’s statements. Also, Ms. Craig is .in the audience, but I would not call her as a witness.
THE COURT: Then you propose to ask that question? Are you going to object to that?
[APPELLANT’S ATTORNEY]: When she asks it, Your Honor, I will make a motion for a mistrial.
THE COURT: I probably will grant it if you ask that question. All right. What is your next question?
[PROSECUTION]: The other question will probably be in the same vein. I just want to make sure, did he instruct a twelve year old to deceive her parents as to where she was.
THE COURT: Aren’t those questions sort of like do you still beat your wife?
[PROSECUTION]: Your Honor, they are prior incidences of —
THE COURT: (Interposing) Well, that is fine if you can back those up and prove them, then that is proper, but just to ask them and have no proof of it is not only improper, it is not fair. Is that the only two other questions you have left?
[PROSECUTION]: Yes.
THE COURT: Okay. Let’s don’t ask those.

On appeal, appellant argues the failure of the prosecutor “to demonstrate that the ‘bad acts’ about which she inquired were probative of truthfulness” before she asked appellant why he had been suspended constituted prejudicial error. Questions about specific instances of a witness’s prior conduct are permissible on cross-examination if they relate to truthfulness. Ark. R. Evid. 608(b).

In interpreting Rule 608 we have adopted a three-fold test of admissibility: 1) the question must be asked in good faith, 2) the probative value must outweigh its prejudicial effect, and 3) the prior conduct must relate to the witness’ truthfulness.

Mackey v. State, 279 Ark. 307, 315-16, 651 S.W.2d 82, 86 (1983). This entire colloquy indicates that the prosecutor did not ask the question in good faith. The trial judge told the prosecutor she could ask those questions which related to truthfulness. The prosecutor knew the prior instances of bad conduct by appellant which she was attempting to introduce did not relate to appellant’s truthfulness. With this knowledge, she asked the improper questions. It is error to ask questions which are not probative of truthfulness. Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980). However, we do not reverse for error without a showing of prejudice. Hamm v. State, 304 Ark. 214, 800 S.W.2d 711 (1990). Appellant contends it is “clear” he was prejudiced. I do not agree. The question whether appellant was “suspended for taking a woman to —” was not answered. Appellant’s objection to the question was sustained. Appellant did not ask for an admonition to the jury to disregard the question. Since appellant did not request an admonition, which would have cured any potential prejudice, he cannot now complain that he was prejudiced by the question being asked. Appellant’s answer that he was suspended for “not remaining quiet in school and misuse of a department vehicle” is not prejudicial. It is not probative of truthfulness, as the trial judge noted, but it does not prejudice appellant. Since there has not been a showing of prejudice, I would not reverse.

The majority cites as authority for its decision Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978), in which we found a motion to suppress a search warrant was erroneously denied. We concluded that even though none of the errors in the search warrant, standing alone, would require suppression, the pervasiveness of the errors contained in the search warrant necessitated suppression. The Harris case is simply not applicable to the case at bar. The majority also relies on State v. Soares, 815 P.2d 428 (Hawaii 1991), which was reversed because of numerous instances of prosecutorial misconduct, none of which, standing alone would have required reversal. There, the prosecutorial misconduct began during voir dire and permeated the trial. This Hawaiian case does not “approximate[] the case at bar” as the majority concludes. The case at bar involved only three instances of a prosecutor attempting to elicit improper testimony from the witnesses over a three day trial. While I agree with the majority that the prosecutor was overzealous and this conduct was improper, I think it falls short of prosecutorial misconduct.

In closing, I note that the cases in which we have reversed for cumulative error involved much more egregious instances of improper conduct and the issue of cumulative error was specifically raised on appeal. In Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), we reversed where there were 28 objections by appellant to leading questions, appellee was admonished repeatedly by the trial judge and the objections were repeatedly sustained, but appellee’s conduct was not stopped. Appellant in Chapman even asked that the testimony be stricken because of the excessive use of leading questions, but the trial judge determined that striking the testimony was too harsh a sanction. In Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988), we said ten instances of leading questions during a lengthy trial with an evident attempt by counsel for the state to comply with the judge’s directive to avoid leading questions did not require reversal. In this case, there were only three instances of improper questions presented for our consideration during a three day trial, there is no indication the trial judge was unable to control the prosecutor’s actions, and the issue of cumulative error was not raised by appellant either below or on appeal.

Hays and Glaze, JJ., join in this dissent.


source: Caselaw Access Project

author: Robert L. Brown, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Odessa YOUNG v. Larry JOHNSON
    92-691
    845 S.W.2d 509
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993

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

      Thompson, Hendrix, Harvey, Johnson & Mitchell, by: Michael G. McLaren, L. Mitchell Glasgow, and Roderick Runnells, for appellee.
   Robert L. Brown, Justice.

Appellant Odessa Young raises as her sole issue on appeal that the circuit court erred in submitting the issue of her alleged contributory negligence to the jury because there was no evidence of her negligence presented at trial. We agree that prejudicial error was committed, and we reverse the judgment and remand the matter for a new trial.

On February 13,1989, Odessa Young was driving her 1982 Lincoln Town Car south on Ferris Mountain Road, a single-lane road near Fordyce in Dallas County. It had been raining, and there were puddles on the road. The time was about 9:40 p.m. A friend, John Allen, was a passenger in her car. At the same time, Larry Johnson was driving a U-haul truck north on the same road. Shortly after Young rounded a curve in the road, she and Johnson collided. Johnson described the accident in these terms:

Well, I turned in and like they said it had been raining, and was real muddy and slushy and I never recognized the headlights on their car. As I approached the curve, right before I approached the curve I was smoking a cigarette. I had just lit the cigarette and I dropped it and looked down to pick the cigarette up and bang, I had run into them folks car.

Young sustained back and neck injuries and was taken to the Dallas County Hospital where she remained for four days. Allen was also taken to that hospital where he was treated for injuries to his right knee and hip. Young’s car burned and was a total loss.

Young and Allen subsequently filed a negligence action against Johnson, and Johnson alleged contributory negligence on the part of Young. The case was tried before a jury. Young testified that he medical bills came to $13,279.69. She further testified that her car was worth about $8,000 before the accident and was a total loss.

Kyle Smith, who was then employed by the Dallas County Sheriffs Department, testified for Young and Allen that he prepared the accident report. He stated that Young’s car was damaged on the left front side and that the left front bumper of Johnson’s truck was also damaged. He further testified that Ferris Mountain Road is a one-lane road but is wide enough for two vehicles.

John Allen testified that he and Young were traveling down the hill when they collided with Johnson’s truck. He said that when Young saw the headlights from Johnson’s truck, she slowed down and pulled over to the right side of the road as far as she could. Allen stated they were in a ditch when Johnson hit them.

Young testified that when she saw Johnson’s lights in the distance, she slowed down and got to her side of the road. She said that she was on her side of the road when Johnson hit her. She stated that the cause of the accident was Johnson’s driving on her side of the road.

Larry Johnson testified, as quoted above, that he was looking for a cigarette which he had dropped when he hit Young’s car. He said that he did not see Young’s car until he hit it.

After Johnson testified, Young and Allen moved for a directed verdict on the issue of Young’s contributory negligence. They argued that there was no proof that Young had been negligent; therefore, there was no issue of her negligence to submit to the jury. The defense countered that there was some proof that Young was negligent because she testified that she saw Johnson’s headlights when he was some distance away. The circuit court conceded that proof of negligence on Young’s part was “very slim” but nevertheless denied plaintiffs’ motion for directed verdict.

The circuit court then instructed the jury on the law and included AMI 206 to the effect that the defendant Johnson was contending that the plaintiff Young was negligent, and he had the burden of proof on this point. The court also gave AMI 305 on the duty of both parties to exercise ordinary care and AMI 2109 on the comparative negligence of the parties. Closing arguments ensued, and after the jury retired to reach its verdict, counsel for Young and Allen made a record on their objections to the three AMI instructions on grounds that the instructions submitted the issue of Young’s contributory negligence to the jury. The circuit court overruled the objection and stated that there was “some evidence, however small, of the negligence of Ms. Young” for the jury to consider.

The jury returned a general verdict in favor of Young and Allen, awarding Young $7,500.00 and Allen $1,000.00, although Allefi had only claimed $600 in medical expenses. Young then filed a motion for a new trial, contending that it was error to instruct the jury on her contributory negligence and that the award of $7,500.00 was contrary to the preponderance of the evidence. The motion for a new trial was not ruled on within thirty days of filing, and, accordingly, was deemed denied. Young filed a timely notice of appeal from both the judgment and the denial of her motion for a new trial.

Odessa Young’s primary argument on appeal is that the circuit court erred in not directing a verdict in her favor regarding her negligence. She also alludes to the court’s instructions relating to her negligence and the claimed prejudice that resulted. Young, however, did not object to the instructions given until after the jury had retired. Objections to instructions must be made either before or at the time the jury instructions are given. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990). Waiting to object until after the jury has been instructed on the law and has retired is untimely, for it gives the circuit court no opportunity to react to the instructions at issue or to amend them. See Sims v. State, 286 Ark. 476, 695 S.W.2d 376 (1985). Because the objections were untimely, we will not consider the disputed instructions. Young’s failure to object to the comparative fault instructions, however, is not essential for our consideration of the court’s denial of her motion for directed verdict.

In general, we have been extremely reluctant to affirm a directed verdict on behalf of the plaintiff. On two occasions, we have quoted with approval the following statement from the Eighth Circuit Court of Appeals which describes our rationale against directing verdicts in the plaintiff’s favor:

Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.

Untied States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542, 547 (8th Cir. 1958); quoted with approval Morton v. American Med. Int’l, Inc., 286 Ark. 88, 90, 689 S.W.2d 535, 537 (1985); Spink v. Mourton, 235 Ark. 919, 922, 362 S.W.2d 665, 667 (1962). Thus, we are loath to direct a verdict in favor of the party who has the burden of proof because the jury may disbelieve the credibility of such proof.

Here, however, that is not the case. With respect to Young’s negligence, the defendant Johnson had the burden of proof. See AMI 206; see also Hill Constr. Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987). If he did not satisfy the burden, a directed verdict in favor of Young was appropriate. See Kinco, Inc. v. Schueck, 283 Ark. 72, 671 S.W.2d 178 (1984). In Kinco, we stated the test for a trial court’s ruling on a motion for directed verdict:

The test for the trial court in ruling on a motion for a directed verdict by either party is to take that view of the evidence that is most favorable to the non-moving party and give it its highest probative value, taking into account all reasonable inferences deducible from it; after viewing the evidence in this manner, the trial court should: (1) grant the motion only if the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside, or (2) deny the motion if there is substantial evidence to support a jury verdict for the non-moving party. Farm Bur. Mut. Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Id.

291 Ark. at 283, 671 S.W.2d at 180-181; see also Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987).

In the case before us, the circuit court denied Young’s motion for directed verdict. Under the test cited in Kinco, we first view the evidence of Young’s negligence, if any, and give it its highest probative value. The question then becomes: was there substantial evidence of Young’s negligence to support denial of the motion? or, alternatively, should the court have granted the motion because of the insubstantial evidence? We conclude that the circuit court was in error and that the motion should have been granted.

Johnson did not see Young’s vehicle. He had dropped a cigarette, and when he looked up, he crashed into Young’s car. Allen and Young testified that when she saw Johnson’s headlights, she slowed down and moved as far to the right as possible. Allen said that Young was in the ditch when Johnson hit her. Investigator Kyle Smith testified that the left front side of Young’s car was damaged and the left front bumper of Johnson’s truck had been hit, which supports the testimony that Young’s car had pulled over to the right.

Johnson argues that there was evidence that enabled the jury to make the determination it did because of photographs of the road referred to by investigator Kyle Smith. But unlike the situation in East Texas Motor Freight Lines, Inc. v. Dennis, 214 Ark. 87, 215 S.W.2d 145 (1948), where truck tracks crossing the center line were the issue, there is no hint from Smith’s presentation that the photographs supported Young’s negligence.

In sum, the evidence indicates that Young took reasonable precautions by pulling over to the right when she saw Johnson’s headlights. The jury, of course, was free to disbelieve the testimony of Young and Allen. But even giving the remaining evidence presented, such as Larry Johnson’s testimony, its highest probative value, there is nothing to suggest Young’s negligence. We hold that any conclusion that Young was negligent under these facts is highly speculative and conjectural and, thus, not substantial. See Williams v. Smart, supra; Kinco, Inc. v. Schueck Steel, Inc., supra.

The circuit court, therefore, erred in not directing the jury to enter a verdict for Young on the issue of her negligence. Our holding, though, does not equate to a directed verdict in favor of Young on the issue of Johnson’s negligence. For Young to prevail, it was still essential for her to present her case on Johnson’s fault to the jury for its consideration, and the jury was then free to believe or disbelieve the proof presented. Conceivably, based on that proof the jury could have 1) found Johnson negligent and awarded Young damages; 2) found Johnson negligent and refused Young a damage award; or 3) found Johnson not negligent and entered a defendant’s verdict.

It could reasonably be contended that though the circuit court might have erred in refusing to direct a verdict on Young’s negligence, this error was cured by the jury’s verdict for Young. We cannot say, though, that the court’s refusal to take Young’s negligence from the jury did not have a prejudicial impact on the damages awarded to her. Cf. Little Rock Elec. Contrs., Inc. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). In Okonite, a general verdict was returned, and we could not determine whether the error in giving a comparative fault instruction was harmless. As in Okonite, here the jury returned a general verdict. From the verdict form, we cannot say that the failure to direct a verdict on Young’s negligence was harmless.

We, accordingly, hold that the circuit court erred in not granting a directed verdict in favor of Young on the issue of her negligence, and we remand for a new trial.

Reversed and remanded.

FIays, Glaze, and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. Plaintiff-appellant obtained a general jury verdict in the amount of $7,500, but she moved for a new trial on grounds that (1) there was no evidence of negligence on her part and (2) the jury assessed too small a recovery. After plaintiffs motion was deemed denied, she filed this appeal where she argues the trial court erred in submitting the question of her comparative negligence to the jury.

On appeal, plaintiff does not argue the motion for new trial. Instead, she argues that the defendant failed to present substantial evidence to support his defense below that plaintiff was at fault, and as a consequence, the trial court erred in overruling plaintiffs motion for directed verdict and in instructing the jury on plaintiffs comparative negligence. She suggests this error caused the jury to reduce her award to the $7,500 verdict.

As the majority court points out, the defendant raised the defense that the plaintiff was negligent, and he had the burden of proof on this issue. The trial judge ruled the defendant met his burden.

The following evidence was presented at trial. Both parties were driving their vehicles at night on a one-lane road, each traveling from opposite directions. The parties were negotiating a curve when the collision occurred. Plaintiff said that she had seen defendant’s headlights from a distance before entering the curve, and had slowed down. The defendant said that, because he had dropped a cigarette and had taken a “split second” to look down to pick it up, he saw plaintiffs car lights only when his U-Haul truck hit plaintiff s four-door Lincoln Town Car. Damage appeared on the left front of both vehicles. Plaintiff and her passenger testified plaintiff had pulled her car to the right into a ditch so as to avoid the defendant’s truck. The investigating officer said that the road was wide enough for both vehicles to pass each other at that point in the road. He also testified that there was no evidence the defendant had been speeding or driving “wild.”

In requesting a directed verdict, plaintiff argued there was no proof that she had been negligent. Defendant countered by saying plaintiff admitted having seen defendant’s lights in the distance. Based on this fact combined with the investigating officer’s testimony, the trial judge denied plaintiff’s directed verdict motion. The trial judge ruled that the jury could find that plaintiff may not have had proper control of her car or was not abiding by the rules of the road at the time of the accident.

We pointed out in Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986), how rare and difficult it is before a verdict can be directed in a plaintiff’s behalf. In fact, my research reveals no cases involving claims of negligence where a plaintiff’s request for directed verdict has been sustained. The Barger court did cite two examples where a plaintiff’s directed verdict was upheld, Plunkett v. Winchester, 98 Ark. 160, 135 S.W. 860 (1911), and Arkansas Real Estate Co., Inc. v. Fullerton, 232 Ark. 713, 339 S.W.2d 947 (1960), but in these cases, the defendants admitted facts in their pleadings and proof showing the plaintiffs to be entitled to the relief sought, and there was no question left for the jury to decide. Here, such is not the case. In fact, plaintiff’s case was fully contested and, after hearing all the evidence, the trial court concluded plaintiff’s motion for directed verdict should be denied.

A recent example where this court reversed the granting of a directed verdict in the plaintiff’s behalf was in Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). There, the defendant died prior to trial, and no evidence was offered in his behalf. However, the defendant had filed an answer denying the plaintiff’s allegations of negligence. In reversing the trial court’s directed verdict for plaintiff, we held that, where the allegations of the [plaintiff’s] petition are denied by the answer and the plaintiff offers oral evidence tending to support those allegations, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence.

Because plaintiff here sought a directed verdict, part of the formula for our review is the rule that, only when the proof is so clear, convincing and irrefutable that no other conclusion can be reached by reasonable men should the issue be taken from the jury and decided by the court. Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962). In Barger, this court said the following when explaining why it affirmed the trial court’s rejection of the plaintiff’s motion for directed verdict:

The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition. In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached. 289 Ark. at 255-56, 711 S.W.2d at 775.

Here, the jury could have believed or disbelieved all or any part of the evidence each party presented. See also Weber v. Bailey, 302 Ark. 175, 787 S.W.2d 690. In view of the above facts and law, I am of the opinion the trial court correctly denied plaintiff’s directed verdict.

Hays and Corbin, JJ., join this dissent.


author: Robert H. Dudley, Justice.

text:
    L. D. GIBSON v. CITY OF TRUMANN, Arkansas and Mayor David Gossett
    92-474
    845 S.W.2d 515
    Supreme Court of Arkansas
    Opinion delivered January 25, 1993

      L.D. Gibson, pro se.

      John Bartlett, for appellees.
   Robert H. Dudley, Justice.

Trumann is a city of the first class that has the mayor-council form of government. The council is composed of ten aldermen. In 1992, five of the aldermen voted in favor of an appropriation ordinance for the city’s fiscal year, and five voted against it. The mayor broke the tie by casting his vote in favor of the ordinance and declared that the ordinance was adopted. Appellant, L.D. Gibson, filed this suit for declaratory judgment and sought to have the mayor’s vote declared void, the ordinance declared invalid, and an injunction against any expenditures pursuant to the ordinance. The chancellor ruled that the mayor’s vote was authorized by statute and that the ordinance was therefore validly adopted. We affirm the ruling.

Act 1 of 1875 was a comprehensive act providing for the establishment of municipal governments within this State. Section 51 of Act 1, in the material part, provided: “The Mayor shall be ex-officio President of the Council and shall preside at its meetings during the term for which he shall have been elected, and in case of a tie he shall have the casting vote.” In 1981, the General Assembly passed an act which provides for a mayor’s vote at times other than a tie. In the material part it provides that the mayor “shall have a vote when the Mayor’s vote is needed to pass any ordinance, by-law, resolution, order or motion.” Ark. Code Ann. § 14-43-501 (b)(1)(B) (1987).

In order to pass any type of ordinance, a majority of the “whole number of members elected to the council” is required. Ark. Code Ann. § 14-55-203 (1987). The parties agree this language would include the mayor since he is an ex officio member of the council. However, in order to pass an ordinance for the appropriation of money “the concurrence of a majority of the aldermen of any municipal corporation” is required. Ark. Code Ann. § 15-55-204 (1987) (emphasis added). The appellant seizes upon the difference in the language of the two statutes and contends that since the mayor is not an alderman, he cannot vote on appropriation ordinances and that the General Assembly, by the 1981 amendment, did not intend to give the mayor a vote as an alderman on appropriation ordinances.

The primary goal in the interpretation of statutes is to determine and then give effect to the intent of the General Assembly. Sanders v. State, 310 Ark. 630, 839 S.W.2d 518 (1992). In interpreting statutes we give words their usual and ordinary meaning. Bob Cole Bail Bonds, Inc. v. Howard, 307 Ark. 242, 819 S.W.2d 684 (1991). Under the 1875 act the mayor was limited to voting “in case of a tie.” The 1981 act, codified as Ark. Code Ann. § 14-43-501 (b)(1)(B) (1987), expanded the occasions on which the mayor can vote to “when the Mayor’s vote is needed” to pass “¿my” type of ordinance. (Emphasis added.) By giving the words of the 1981 act their usual and ordinary meaning, it becomes obvious that the General Assembly intended for the 1981 act, Ark. Code Ann. § 14-43-501 (b)(1)(B) (1987), to amend section 51 of Act 1 of 1875 to allow the mayor to vote whenever his vote is needed to pass any type of ordinance. Section 1 of the 1981 act expressly provides that it amends “Arkansas Statute 19-1910 (4th to 7 th sentences in part of Section 51 of Act 1 of 1875),” and section 2 of the same act repeals “all laws and parts of laws in conflict with this Act.” It is without question that the General Assembly had the authority to amend its earlier act and to repeal any laws in conflict with the new act.

The appellant argues that even though the 1981 act, Ark. Code Ann. § 14-43-501, amends Section 51 of Act 1 of 1875, it does not expressly repeal Ark. Code Ann. § 15-55-204 (1987), which requires a “majority of the aldermen” to pass an appropriation ordinance. Again, we must give the words their ordinarily and usually accepted meaning. The 1981 act allows the mayor to vote whenever his vote is needed to pass any type of ordinance. The words “when the Mayor’s vote is needed” are not limited and would apply any time the mayor’s vote is needed, and likewise, the words “any ordinance” are not limited and would apply to any type of ordinance, including an appropriations ordinance. We have no hesitancy in holding that the 1981 act repealed that part of the 1875 act that required a majority of the “aldermen.”

The appellant contends that the foregoing construction of the 1981 act is inconsistent with our case of Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984). In that case we were not deciding whether a 1981 statute could amend a section of an 1875 statute. Rather, we were construing the language of Amendment 7 to the Constitution of Arkansas. The amendment provides in part: “No measure approved by a vote of the people shall be amended or repealed ... by any City Council, except upon a yea and nay vote on roll call of two-thirds of all the members elected to . . . the City Council.” (Emphasis added.)

In Younts we construed the amendment to mean just what it says, a vote of two-thirds of all the members elected to the city council is necessary to amend a measure approved by a vote of the people. In this case we are not construing that amendment or that language, but rather whether the 1981 statute was intended to amend a section of the 1875 statute and to repeal by implication another part.

In sum, the 1875 act provided, “in case of a tie he shall have the casting vote.” The 1981 amendment provides the mayor “shall have a vote when the Mayor’s vote is needed to pass any ordinance.” The chancellor correctly ruled that the mayor could break the five-to-five tie vote to pass the appropriation ordinance.

Affirmed.


author: David Newbern, Justice. Tom Glaze, Justice, Robert L. Brown, Justice,

text:
    Betty D. TULLOCK v. Gareth ECK, M.D., et al.
    92-340
    845 S.W.2d 517
    Supreme Court of Arkansas
    Opinion delivered January 25, 1993
    [Rehearing denied March 1, 1993.]

      F. Lewis Steenken and Miller, Nash, Wiener, Hager & Carlsen, by: William H. Walters, for appellant.

      Davis, Cox & Wright, by: Kelly Carithers, for appellee.
   David Newbern, Justice.

This is a medical malpractice case. The appellant, Betty Tullock, sued the appellee, Dr. Gareth Eck, along with another physician and the medical center in which they work. Ms. Tullock contended Dr. Eck negligently prescribed estrogen on November 30,1987, and that her taking of the drug contributed to her advanced state of breast cancer diagnosed in March 1990. Dr. Eck was awarded summary judgment on the ground that the two-year statute of limitations had expired. Ms. Tullock argued that her taking the medication prescribed by Dr. Eck constituted a continuous course of treatment and the last allegedly negligent act occurred when she finished taking the medication in May 1989, less than two years before suit was filed. The summary judgment order has been properly certified as final pursuit to Ark. R. Civ. P. 54 (b). We agree with the Trial Court’s conclusion that the continuous treatment doctrine did not toll the statute of limitations, and thus summary judgment in favor of Dr. Eck was proper.

Affidavits, discovery documents, pleadings, and exhibits revealed these facts. Dr. Eck performed gall bladder surgery on Ms. Tullock November 2, 1987. On November 10, 1987, Ms. Tullock, in the course of a post-operative examination, reported to Dr. Eck a mass in her breast. Dr. Eck recommended a mammogram and biopsy, and a mammogram was performed. The mammogram report confirmed the mass but did not show the presence of cancerous cells.

According to Dr. Eck, when Ms. Tullock returned for a second post-operative visit November 30, 1987, he informed her that the mammogram was essentially negative but repeated that a biopsy of the mass was indicated. Ms. Tullock declined to have a biopsy and denies having been fully informed of the risks and alternatives concerning her choice with respect to a biopsy in 1987.

A subsequent post-operative visit was scheduled for December 14,1987. Dr. Eck states it was his intention to discuss further with Ms. Tullock the need for a biopsy at that meeting. His office records show that Ms. Tullock called to cancel the appointment and did not reschedule it. While Ms. Tullock acknowledges she was to return, she states she did not do so because she had been told her gall bladder situation was healed, and she had been led to believe the breast mass was benign.

At the November 30,1987, visit Dr. Eck wrote a prescription for Ms. Tullock for the drug Premarin, an estrogen supplement, which Ms. Tullock filled that day. Hospital records compiled subsequently when Ms. Tullock underwent a mastectomy showed she had been taking estrogen since 1973. Dr. Eck’s prescription permitted refills for one year. She refilled the prescription on June 9, 1988, and November 10, 1988, thus providing sufficient medication to last into May 1989, well within the two years of the filing of this suit on December 11,1990. A pharmacist called Dr. Eck’s office for authorization of an additional refill on May 9, 1989, and it was refused.

In June 1989 Ms. Tullock visited another doctor who did not perform diagnostic treatment on the breast mass but continued her estrogen therapy. The same doctor diagnosed a malignant infiltrating ductal cell breast cancer in March 1990. Ms. Tullock’s next direct contact with Dr. Eck occurred on March 30, 1990, when after that diagnosis, she returned to him for the biopsy.

In the process of treatment, the cancer was found to be estrogen dependent, and Ms. Tullock argued that Dr. Eck’s prescription of estrogen in the face of the undiagnosed mass presenting at the time of the examination was negligence. She alleged Dr. Eck was also negligent in his acts and omissions related to the diagnosis and treatment of her cancer, thus contributing to the loss of an opportunity for a cure and significantly shortening her life expectancy.

1. Summary Judgment

a. Standard of review

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.

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56(c). While there might well have been disputed issues of negligence had this case gone to trial, the only issue with which we are concerned is whether the statute of limitations was tolled by continuous treatment. As to the latter, there is no factual dispute. The question is thus whether Dr. Eck was entitled to judgment as a matter of law.

b. Statute of limitations

If a physician is negligent in treating a patient but the patient continues to be treated by the physician for the condition which was the object of the negligent act or treatment, the patient should not be required to interrupt the treatment to bring suit against the physician because a statute of limitations is about to run. That is the most often stated rationale for the “continuous treatment doctrine” which tolls the statute of limitations until treatment is discontinued. See, e.g., Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Rountree v. Hunsucker, 833 S.W.2d 103 (Tex. 1992).

We have found no authority to support the conclusion that a patient’s continued ingestion of medicine prescribed by a physician is enough to establish an on-going course of treatment for the purpose of applying the continuous treatment doctrine. We find only authority suggesting the contrary. See, Fleishman v. Richardson-Merrill, Inc., 226 A.2d 843 (N.J. Super. 1967); Parrott v. Rand, 511 N.Y.S.2d 57 (A.D.2 Dept. 1987); Bernardo v. Ayerest Laboratories, 470 N.Y.S.2d 395 (A.D.1 Dept. 1984) and Millbaugh v. Gilmore, 30 Ohio St.2d 319, 285 N.E.2d 19 (1972); Rountree v. Hunsucker, supra.

All of these cases from other jurisdictions are distinguishable, some of them very significantly so. None of them is precisely like the case before us now combining (1) the allegedly negligent prescription of a drug which allegedly directly caused injury with (2).a very strict statute of limitations limiting action to two years from the date of a wrongful “act complained of and no other time.” We have found no case just like this one where the question is whether the final “treatment” (“act”) occurred the date the prescription was issued by the physician or the last time the medicine was taken by the patient under the aegis of that prescription. We thus find it necessary to go our own way, looking to the Arkansas statute and the two cases in which we have applied the continuous treatment doctrine in conjunction with it.

The statute is Ark. Code Ann. § 16-114-203 (1987). Here are its relevant words:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. . . .

Ms. Tullock argues that the actions of Dr. Eck in failing to biopsy the mass, prescribing estrogen, and failing to provide the requisite follow-up care fall within the continuous treatment doctrine. We recognized and applied the doctrine first in Lane v. Lane, supra., and again in Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303 (1990).

In the Lane case, narcotic injections given by Dr. Lane to Ms. Lane, his wife, over a long period of time resulted in scarring and drug addiction. Dr. Lane pleaded the statute of limitations, and the Trial Court refused to bar the claim though the initial injurious behavior occurred more than two years before suit was filed. We affirmed, quoting a description of the continuous treatment doctrine from 1 D. Louisell and H. Williams, Medical Malpractice, § 13.08 (1982)(footnotes omitted), as follows:

[I]f the treatment by the doctor is a continuing course and the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.

That description has two fundamental elements. There must be “treatment,” which “is a continuing course.” That requirement is stated conjunctively with the second element, “the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care.” Without the former element, it might be thought that a physician’s omission of treatment where there is a duty of care could toll the statute of limitations on the basis of continuation of negligence or tortious conduct. We were very careful, however, not to adopt, and to point out that we had specifically rejected, the so-called “continuing tort” theory of tolling the statute of limitations as inconsistent with the General Assembly’s intent in stating that limitations begin to run “the date of the wrongful act complained of and no other time.”

“Continuous treatment” is distinguishable from “continuing tort.” The cases in which we rejected the continuing tort doctrine are Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986); Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); and Williams v. Edmondson, 257 Ark. 837, 250 S.W.2d 260 (1975). See also Note, Torts — Limitations on Actions — Arkansas Adopts Continuous Treatment Rule to Toll State of Limitations in Medical Malpractice Actions, 11 U.A.L.R. L. J. 405 (1989).

In the Owen and Treat cases the appellants argued that a single negligent act of a physician, a misdiagnosis for example, was a continuing wrong and the statute of limitations would not begin to run until the error was discovered, on the premise that the effect of the wrong was continuous. We declined to adopt that theory, holding the cause of action to accrue at the time of the wrongful act. We said to hold otherwise would, in effect, apply the “discovery of injury rule” to our malpractice statute of limitations, which would change the time of the accrual of a cause of action from the time of the act to the date of discovery of the injury. We declined to reach such a result which would have been directly contrary to the legislative intent plainly expressed that the limitation begins to run from the “date of the wrongful act complained of and no other time.”

In contrast to the so-called continuing tort theory, based on a single negligent act with on-going injury, the continuous treatment doctrine becomes relevant when the medical negligence consists of a negligent act, followed by a continuing course of treatment for the malady which was the object of the negligent treatment or act. That obviously occurred in the Lane case.

In Taylor v. Phillips, supra, the issue was somewhat closer. Dr. Phillips had allegedly been negligent in applying a metal brace to Mr. Taylor’s broken jaw more than two years before suit was filed. The brace was not removed until within two years of the filing. Mr. Taylor last consulted Dr. Phillips about his condition on November 4 or 5, 1987. He returned to Dr. Phillips’s office, however, December 8, 1987, and was seen by Dr. Phillips’s partner, Dr. Modelevsky. On December 9,1987, Dr. Modelevsky consulted with Dr. Phillips, and they agreed on further surgery involving a bone graft. Suit was filed October 18, 1989. The majority opinion stated that the two-year period began running December 9, 1987. The opinion stated this was “clearly ... a continuing course of treatment.”

Dr. Eck’s allegedly negligent conduct (act) occurred November 30, 1987, when he wrote the prescription. Unlike Ms. Lane and Mr. Taylor, Ms. Tullock had no further contact, direct or indirect, with the doctor with respect to the condition of her breast until the cancer diagnosis had been made by another physician and she returned to Dr. Eck for a biopsy March 30, 1990, more than two years after the alleged negligence occurred. She does not allege any negligence occurred on the occasion of the biopsy or thereafter.

If we were free to adopt the continuing tort theory we might hold that Dr. Eck was not entitled to summary judgment as a matter of law. As we explained in the Lane case, however, we feel constrained by the statute in that respect, and if the public policy thus expressed is to be altered, it is up to the General Assembly to do it. The continuous treatment doctrine does not apply in the circumstances of this case, and thus we must affirm the Trial Court’s decision on that point.

c. Constitutionality

Ms. Tullock argues for the first time on appeal that the malpractice limitation is unconstitutional as applied in this case. This argument was not raised before the Trial Court ruled on the motion for summary judgment. It is thus waived under the well-settled rule that even constitutional arguments are waived on appeal unless raised at trial. Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991).

Affirmed.

Glaze and Brown, JJ., dissent.

Tom Glaze, Justice,

dissenting. I respectfully dissent. The negligence attributed to Dr. Eck occurred on November 30,1987, when he prescribed estrogen for Ms. Tullock, although by Tullock’s story, Dr. Eck knew at the time that Tullock had a mass in her breast, she had not had a biopsy and she had not been informed of the risks with respect to not having a biopsy. When Tullock saw a different doctor in June of 1989, she discovered that the mass in her breast was malignant and that the cancer was estrogen dependent. She filed suit against Dr. Eck in December of 1990, which was about three years, one month after Dr. Eck’s purported negligence in November of 1987. The statute of limitations for medical malpractice is two years.

Obviously, Dr. Eck’s negligence, if any, is barred by the two-year limitation provision unless the facts show Tullock was under Dr. Eck’s continued treatment. Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303 (1990); Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). Under such facts, the statute of limitations is tolled until treatment is discontinued.

The facts must be viewed in Ms. Tullock’s favor. See Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). In the circumstances of this case, the issue becomes whether Ms. Tullock’s continued ingestion of estrogen prescribed by Dr. Eck was continuous-physician treatment which tolled the two-year limitation provision. If so, her suit is timely since she continued taking estrogen until Dr. Eck refused to authorize further refills in June of 1989 when Tullock’s prescription expired. On November 30, 1987, Dr. Eck had given Tullock a prescription for estrogen which was refillable in quantities sufficient to provide treatment for at least a year and four months. Tullock obtained those refills on June 9,1988, and November 10, 1988.1 submit Dr. Eck’s treatment of Tullock terminated in June 1989, when he refused further medicinal care of Tullock or, for that matter, any type medical care of her.

Stedman’s Medical Dictionary, Fifth Lawyers’ Edition, defines the term treat as “to manage a disease by medicinal, surgical, or other measures; to care for a patient medically or surgically.” And treatment is defined in Stedman’s as “medical or surgical management of a patient.” In the instant case, Tullock could not have received estrogen without Dr. Eck’s authorization. Obviously, in managing Tullock’s health and medicinal needs, Dr. Eck exercised his discretion to give her estrogen but later he chose to take that medication from her by refusing any further refills.

The majority opinion cites no cases in point. For example, the case of Bernado v. Ayerest Laboratories, 470 N.Y.S.2d 395 (A.D. 1 Dept. 1984), held the continuous treatment doctrine did not apply, but there, the patient undertook self treatment by continuing use of a drug prescribed many years before — long after the prescribing doctor had discontinued treatment. No self treatment exists here. Tullock’s position is that she never left Dr. Eck’s care. In fact, she had returned to him after her malignancy was diagnosed so Dr. Eck would perform the surgery. An insight as to her continuing treatment by Dr. Eck is Eck’s office manager’s testimony which indicated that Tullock was a returning patient in March 1990, her file had not been purged and the file was coded as a “periodic reexamination.” One physician, Dr. Paul Blaylock, averred that, in his opinion, Dr. Eck’s relationship did not end until April 1990, or at least until July 1989 when her prescription for estrogen ran out. In further support of her position, Tullock said that she did not go to any other doctor for estrogen or treatment of any kind until she saw a Dr. Johnson when her cancer was diagnosed. At the minimum, the proof here unquestionably raises a material fact issue as to whether Dr. Eck continued his treatment of Tullock to July 1989 or to April 1990. Either date would make timely the complaint Tullock filed in December 1990.

The majority opinion also mentions Millbaugh v. Gilmore, 285 N.E.2d 19 (Ohio 1972), where the court held the continuing course of treatment doctrine did not apply where the patient secured a refill of a prescription without the knowledge of the physician and after the physician-patient relationship had ended. Clearly, that is not the situation here.

The other cases cited by the majority are likewise distinguishable. In fact, the rationale related in Rowntree v. Hunsucker, 833 S.W.2d 103 (Tex. 1992), seems more to support Tullock’s, not Dr. Eck’s, position. In Rowntree, the doctor prescribed Sectrol as a medication for Hunsucker’s hypertension. After some visits to the doctor and getting refills, the doctor gave Hunsucker a prescription for Sectrol for a six-month period. About eight months later, she suffered a stroke. The Texas Supreme Court stated the controlling issue for limitation purposes was whether Hunsucker’s taking medication on a prescription that the doctor agreed to refill constitutes “a course of treatment” absent any other concomitant medical care, e.g., office visits or related diagnostic services. The Texas court rejected the doctor’s assertion that his last examination of a patient was the triggering event for the statute of limitations in a medical malpractice suit. The court concluded instead that there are some situations in which the statute would run from the date of the last drug treatment, if the course of that treatment is the direct cause of the injury. Because Hunsucker failed to allege the drug prescribed by the doctor actually caused Hunsucker harm, it declined to use the last drug treatment to toll the statute.

Here, Tullock’s drug treatment ended sometime after March of 1989, and before she sought to renew her prescription in June 1989. In either case, she had two years to bring suit — which she did — to allege that the estrogen she took could have caused the growth of a malignancy she now experiences. In this respect, Tullock specifically alleges here medical condition required a continuous course of monitoring and treatment, but her breast cancer was an estrogen-dependent tumor worsened by Dr. Eck’s treatment with estrogen medication. Dr. Blaylock opined the estrogen medication probably aggravated Tullock’s underlying medical condition.

In my view, this case has many factual determinations yet to be decided. Dr. Eck’s management of Ms. Tullock’s medicinal needs and health care clearly, in my estimation, constitute continuing treatment. That being so, I would reverse this cause and return it for further proceedings.

Robert L. Brown, Justice,

dissenting. This is a case of summary judgment granted on the basis that Dr. Eck’s alleged negligence occurred more than two years prior to the filing of Betty Tullock’s complaint. The majority affirms the summary judgment. I disagree.

The facts are that Dr. Eck was aware of a lump in Betty Tullock’s breast and recommended a mammogram in November 1987. On November 30, 1987, Dr. Eck wrote a prescription for the drug premarin, an estrogen supplement. Tullock refilled the prescription twice in 1988, pursuant to Dr. Eck’s authorization, the last time being November 10, 1988. We can assume for purposes of the motion that she continued taking premarin after refilling the prescription a second time.

Dr. Eck was negligent in prescribing premarin for a patient with a mass in her breast. In March 1990, Tullock was found to have breast cancer which was estrogen-dependent. She filed her complaint against Dr. Eck for medical malpractice on December 11, 1990.

The majority correctly quotes the limitation statute for medical malpractice that “The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.” Ark. Code Ann. § 16-114-203 (1987). A wrongful act, however, and specifically a negligent act, can be an act of commission or omission. National Fire Ins. Co. v. Yellow Cab Co., 205 Ark. 953, 171 S.W.2d 927 (1943). For purpose of summary judgment, we must assume that a negligent act was committed, not only by the prescription but by the failure to cancel the prescription or to advise Tullock of the formidable consequences of estrogen ingestion in her condition.

This is not a case of self-prescription by Tullock over an extended period of time. It is a case where the doctor, with knowledge of the patient’s condition, negligently prescribed an estrogen supplement for that patient and then negligently failed to stop the prescription.

It was the failure to terminate the prescription that tolls the statute of limitations; that act of omission occurred within two years of filing the complaint. At least, a material question of fact is involved here regarding the failure to terminate the prescription, and reasonable minds could differ as to when Tullock’s cause of action accrued. See McGuire v. Ortho Pharmaceutical Corp., 60 Ohio App. 3rd 54, 573 N.E.2d 199 (1989) (reversed summary judgment where statute of limitations applied to complaint of vision loss due to medication). I would reverse the summary judgment on the basis that this material question of fact has not been resolved.


author: Tom Glaze, Justice.

text:
    James ODUM v. STATE of Arkansas
    CR 92-839
    845 S.W.2d 524
    Supreme Court of Arkansas
    Opinion delivered January 25, 1993
    [Rehearing denied March 1, 1993.]

      McArthur & Finkelstein, by: William C. McArthur, for appellant.

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

      Holt, C.J., not participating.

   Tom Glaze, Justice.

Amy Coy’s body was discovered near De Vails Bluff, and appellant was later arrested and charged with capital murder. Appellant appeals from his conviction of first degree murder and his forty-year sentence. He raises five points of error, but none have merit. Therefore, we affirm.

The state’s case against the appellant consisted almost entirely of testimony from Sylvia Proffitt. Proffitt testified she told the police she had witnessed the appellant shoot Coy and afterwards she helped him hide her body. Proffitt further related that she explained to the police that she and Coy had worked as prostitutes for the appellant, and that appellant had a fight with Coy and shot her. Because Proffitt was afraid the appellant would shoot her, she said she helped the appellant dispose of Coy’s body. Proffitt was not charged with any crime. During the investigation, the police found traces of blood on a pair of jeans identified as belonging to the appellant, on a black sweater belonging to Proffitt, and in the house where Proffitt said the murder occurred. However, the police were unable to positively identify the blood as belonging to the victim.

In his first issue on appeal, the appellant argues that the trial court erred in not ruling that Proffitt was an accomplice as a matter of law. We do not address the merits of this argument, because the appellant did not request such a ruling below. Instead, at appellant’s attorney’s request, the trial judge gave the accomplice jury instruction over the prosecutor’s objection. Because appellant received the only relief he requested, he has no basis upon which to raise the issue on appeal. Sweat v. State, 307 Ark 406, 820 S.W.2d 459 (1991). Likewise, we need not address the appellant’s second argument that there was insufficient evidence to corroborate Proffitt’s testimony, because corroboration is only necessary if Proffitt had been found to be an accomplice.

We can also summarily dismiss the appellant’s third issue that the trial court erred in instructing the jury on first degree murder. This court has repeatedly held that when one is charged with capital felony murder, the judge must also instruct the jury on first degree murder. See Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990); Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

Relying on United States v. Standefer, 948 F.2d 426 (8th Cir. 1991), the appellant next argues that the trial court erred in failing to dismiss the case on the basis of double jeopardy. Appellant submits his first trial ended in a mistrial because of improper questioning by the prosecutor, and in Standefer, the federal court held that when governmental misconduct was intended to goad the defendant into moving for a mistrial, a defendant can raise the bar of double jeopardy to a second trial. The appellant here, however, has failed to make any of the first trial a part of the record in this appeal. Thus, we are unable to review the governmental misconduct to determine whether it rises to the level required in Standefer. As this court has stated numerous times, it is the appellant’s burden to produce a record exhibiting prejudicial error. See, e.g., Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).

In his final issue, the appellant argues that the trial court erred in denying his motion to dismiss on speedy trial grounds. Under A.R.Cr.P. Rule 28.2(c), when a defendant is to be retried following a mistrial, the twelve-month period for trial shall commence running from the date of mistrial. Appellant argues that because the mistrial resulted from the prosecutor’s actions, this rule should not apply and the speedy trial time period should commence at the time of his arrest. From the plain reading of Rule 28.2(c), there is no such exception nor does the appellant cite the court to any authority supporting his argument.

Applying Rule 28.2(c) to the present facts, a mistrial was declared in the appellant’s first trial on November 22, 1991, and appellant’s second trial began on April 1,1992. The appellant was retried within five months from the time of his first trial, clearly well within the twelve month speedy trial period. In sum, we find no merit in the appellant’s argument.

For the reasons stated above, we affirm.

Holt, C.J., not participating.