author: Robert H. Dudley, Justice.

text:
    Ralph BUSSARD v. STATE of Arkansas
    CR 89-87
    778 S.W.2d 213
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      Sullivan, Emmons & Kissee, by: Larry Dean Kissee-, and Mark Johnson, for appellant.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Bussard was previously convicted of capital murder. We reversed and remanded. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988). He was tried a second time. Again he was convicted of capital murder. He again appeals. There is no merit in any of his five (5) points of appeal and, accordingly, we affirm.

I.

Appellant first argues that the evidence was insufficient to convict him of capital murder. The essential facts are as follows. Arthur Garner and his wife, Florence, operated the Motorport Motel near Hardy. Mrs. Garner testified that on August 28, 1981, around 1:00 to 2:00 a.m., they were asleep in their bedroom, which was next to the motel office, when someone rang the office doorbell. Mr. Garner got up, put on his clothes, and picked up a pistol which was beside a cigar box containing petty cash. He went to a window and asked what was wanted. Mrs. Garner did not hear the response. Mr. Garner then opened the office door. Mrs. Garner heard a shuffling sound and someone whispered, “Shut up, shut up.” Immediately thereafter, Mr. Garner was pushed off balance and fell against a chest of drawers back in the bedroom. Mrs. Garner started to get her purse which was on the foot of the bed. By this time Mr. Garner came over by the bed near Mrs. Garner. Someone ran into the bedroom and pointed something at them that looked like a pistol. Mrs. Garner was grabbed by the arm and pulled across the bed and then onto the floor. A man in the bedroom said, “Turn the light on, turn the light on.” Another, who was in the office, answered, “It won’t go on.”

Mr. Garner said, “You can have the money.” There was one shot immediately followed by several shots, a pause, and one final shot. Mrs. Garner next heard the sound of people around the bed, people whose actions she described as, “looking for things,” and someone said, “Let’s get out of here.” They left. Although she had been shot twice, Mrs. Garner called the police. They found Mr. Garner shot to death, lying face down in the doorway with a small handgun under his body. The cigar box containing petty cash was missing.

Early that morning Dorothy Hudson, the appellant’s sister, received a call informing her that her brother had been shot. Later, her brother and two other men came to her home in Springfield, Missouri. One of the other men had been shot in the throat and her brother had wounds about his chest. She took her brother into her home. She later called an ambulance to have him taken to St. Johns Hospital in Springfield. At St. Johns, a bullet was removed from his back. That bullet was given to the police. A firearms examiner testified that the bullet had been fired from the handgun which was found underneath Mr. Garner.

A person commits' capital murder if, alone or with others, he commits or attempts to commit robbery or burglary or other specified felonies, and in the course of one of those felonies, causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-101.

Here, the fact that Arthur Garner was shot to death is not in dispute. The evidence concerning the bullet which was removed from the appellant constituted substantial evidence of appellant’s participation in the murder. One need not take an active part in a murder to be convicted of such if the accused accompanied the person or persons who actually committed the murder and assisted in such commission. Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979). The evidence concerning the missing cigar box containing petty cash was substantial evidence of the underlying felony of robbery. See Ark. Code Ann. § 5-12-102 (1987). The circumstantial evidence that the intruders entered the Garners’ bedroom for the purpose of committing robbery is substantial evidence of the underlying felony of burglary. See Ark. Code Ann. § 5-39-201 (1987). Thus, the evidence was sufficient to support the conviction for capital felony murder.

II.

Appellant next argues that the trial court erred in admitting into evidence the prior recorded testimony of a witness. His argument sub-divides the point into two issues: (a) whether the State established the unavailability of the witness, and (b) whether the appellant was denied his Sixth Amendment right to confront the witness.

II. (a)

Dorothy Hudson, the appellant’s sister, testified for the State at the first trial. The State also wanted her as a witness for the second trial. She lived in Springfield, Missouri. The State attempted to subpoena the witness under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases. Ark. Code Ann. §§ 16-43-402 to -409. To that end, an Arkansas subpoena was issued and forwarded to the State of Missouri, along with the witness fees. The Circuit Court of Green County, Missouri, held two hearings on the matter. The witness appeared personally at the first hearing, and by attorney at the second. The Missouri court ordered her to appear in Arkansas at the designated time and place. However, the subpoena had not been returned by the trial date.

The general rules concerning unavailable witnesses are not confusing. The definition of “unavailability as a witness” specifically includes situations in which the declarant is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A.R.E. Rule 804(a)(5). In addition, the burden of proving the unavailability of the witness is on the party who offers the prior testimony. Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986). A trial judge has some discretion in deciding if a good faith effort was made and whether a witness cannot be procured by process or other “reasonable means.” Spears v. State Farm Fire & Cas. Ins., 291 Ark. 465, 725 S.W.2d 835 (1987). A higher standard of proof of unavailability is required in criminal cases than in civil cases. See Spears, supra.

The trial court correctly ruled that the State had met its burden of proving unavailability. The witness, who is the accused’s sister, was out of state. She would not voluntarily attend the trial. The uniform act to secure out-of-state witnesses was followed in a timely manner. The foreign court ordered the witness to appear. The fact that the subpoena had not yet been returned from Missouri is of no significance since the trial judge had the foreign court’s ruling ordering the witness to attend.

Under this sub-issue, appellant also argues that Ark. Code Ann. § 16-44-202 requires the State to establish unavailability prior to trial, rather than at trial. The cited statute is not applicable to the case at bar as it deals with the taking of depositions in a criminal case. Here, the State did not want to take a deposition; instead it sought to use prior recorded testimony.

Also under this sub-issue, appellant contends that Dorothy Hudson’s motion to quash the subpoena was denied at a hearing held without notice to her or her attorney. First, there is nothing in the record to support the allegation that neither Hudson nor her attorney had notice of the hearing. Second, the subpoena was one requiring her attendance on August 15,1988. That trial date was continued, and Hudson’s attorney was present at the subsequent hearing on October 5, 1988, when the Missouri court ordered Hudson to appear as a witness in appellant’s trial on October 25, 1988, the date the trial was actually held.

Further, appellant does not make a convincing argument about how the denial of Hudson’s motion to quash a subpoena for an earlier trial date affects her unavailability for the October trial. Nor does he cite any authority, and there is no obvious merit in the argument. Accordingly, we affirm on the point. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

II. (b)

Appellant also contends under this point that A.R.E. Rule 804(b)(1), the hearsay exception for former testimony, as applied in this case, denied him his Sixth Amendment right to confrontation. His initial premise in the argument is that in his first appeal we held that the State violated his right to discover the name of Dorothy Hudson as a witness. That premise is in error. We did not make such a holding. No mention is made of witness Hudson. Even so, we must address the rest of the argument. The crux of it is that the State did not disclose Hudson’s name prior to trial as one of its witnesses, the trial court only gave appellant’s attorney ten (10) minutes to interview Mrs. Hudson, and, as a result, he was denied effective cross-examination. The record on the allegation is threadbare.

BY MR. JOHNSON: [Defense Attorney]
We also object as she was surprise witness in the first trial.
BY MR. KISSEE: [Defense Attorney]
Yes, we did not have, you gave us ten minutes if I remember right to talk to her and we didn’t have . . .
BY THE COURT:
Oh, I gave you all the time in the world.
BY MR. STALLCUP: [Prosecuting Attorney] Whatever was . . .
BY MR. KISSEE:
Well, you would have given us more.
BY THE COURT:
I certainly would have.
BY MR. KISSEE:
Yes.
BY THE COURT:
Thank you.

“The Supreme Court has repeatedly indicated that while the Confrontation Clause and the hearsay doctrine protect ‘similar values,’ the two are not ‘congruent.’ So while it is true . . . that many statements receivable under the hearsay doctrine also clear the hurdle of the Confrontation Clause, it is likewise true that occasionally statements receivable under the hearsay doctrine must be excluded because of the Confrontation Clause. . . .”D. Louisell&C. Mueller, Federal Evidence % 418 at p. 130-131.

Accordingly, the questions become (1) whether, under Rule 804(b)(1), appellant had sufficient opportunity at the first trial to develop the testimony of the witness by cross-examination, and, if he did, (2) whether he was nonetheless denied his Sixth Amendment right to confront the witness against him by the witness’s absence from the second trial.

II. (b)(1)

From the meager record, we conclude that even if the name of the witness was not disclosed prior to the first trial, the trial court allowed the appellant’s attorney ten (10) minutes to interview the witness, and would have allowed more time if it had been requested. Further, and more importantly, appellant has not suggested any areas of cross-examination which he was unable to develop because of short notice at the first trial. He had the interview at the first trial, he had the opportunity to cross-examine at the first trial, and he has had the interval of time between the first and second trials; yet, he has failed to show any area of cross-examination he would have addressed at the first trial had he been given more notice. In short, appellant had sufficient opportunity at the first trial to develop cross-examination; thus, A.R.E. Rule 804(b)(1) was satisfied.

II. (b)(2)

The Sixth Amendment Confrontation Clause was also satisfied. The following quote from Ohio v. Roberts, 448 U.S. 56 (1980) is particularly applicable:

The Court has applied this “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” Mattox v. United States, 156 U.S., at 244. This reflects the truism that “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” Califor nia v. Green, 399 U.S., at 155, and “stem from the same roots,” Dutton v. Evans, 400 U.S. 74, 86 (1970). It also responds to the need for certainty in the workaday world of conducting criminal trials.
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

See also, Bourjaily v. United States, 483 U.S. 171 at 182-83 (1987).

Here, the evidence comes within an acknowledged hearsay exception, the “former testimony” exception. Thus, reliability is presumed. Further, appellant had ample opportunity to cross-examine the declarant at the first trial, and he has not shown how short notice hindered that opportunity to cross-examine. The testimony had sufficient “indicia of reliability” to satisfy the Confrontation Clause.

III.

Appellant alternatively argues that if witness Hudson’s prior testimony is properly admissible, then the trial court erred in the first trial by overruling his hearsay objections to witness Hudson’s testimony about appellant having a fight with a person named Baby Bob. The argument is without merit.

Appellant argued the point on his first appeal, and we held against him. He now makes the same argument about the same testimony in the second appeal. The doctrine of law of the case prevents an issue raised on first appeal from being raised on a second appeal, unless the evidence materially varies between the two appeals. Hickerson v. State, 286 Ark. 450, 693 S.W.2d 58 (1985). Here, there is no difference in the testimony of witness Hudson between the first and second appeals, since her prior recorded testimony was used at the second trial.

IV.

Next, the appellant argues that the trial court erred in denying his motion for a change of venue. This argument is also without merit. Appellant presented the affidavits of two residents which recited their opinions that the appellant could not receive a fair trial in Sharp County. To establish a need for a change of venue, the appellant was obligated to show that the minds of the residents of Sharp County were so prejudiced against him that he could not receive a fair and impartial trial in that county. Ark. Code Ann. §§ 16-88-201 and -204 (1987). Affidavits, such as those at bar, which cite little or nothing beyond an affiant’s own convictions that a fair trial is not possible, are insufficient to satisfy Ark. Code Ann. §§ 16-88-201 and -204. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1988). Further, there can be no error in the denial of a change of venue if the transcription of the jury selection process shows that an impartial jury was selected. Berry v. State, 290 Ark. 223, 235, 718 S.W.2d 447 (1986). Voir dire of the jury provides adequate safeguards against pretrial publicity. Orsini v. State, 281 Ark. 348, 356, 665 S.W.2d 245 (1984).

Here, of the 52 potential jurors, 13 were excused because of their opinions based on personal knowledge or pre-trial publicity. The remainder of the jurors stated that they had not arrived at any preliminary opinions and could give the appellant a fair trial. The appellant did not have a right to a jury that was totally ignorant of the crime. Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983).

The decision of the trial court to deny a motion to change venue will be upheld unless it is shown that the court abused its discretion. O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). Here, the trial court did not abuse its discretion in denying the motion for a change of venue.

V.

In his last assignment of error, the appellant contends that the trial court erred in sentencing him to life without parole. The argument is based upon the fact that he was also charged with being subject to the habitual offender act. From that, he argues that life is the maximum sentence for an habitual offender.

The appellant was charged with and convicted of capital murder. Ark. Code Ann. § 5-10-101(c) provides that “capital murder is punishable by death or life imprisonment without parole. . . .” Thus, appellant received an appropriate punishment for the crime of which he was convicted. The habitual offender statute was not applicable when appellant was found guilty of capital murder. It would have been applicable only if the appellant had been found guilty of a lesser included offense.

VI.

Where, as here, the appellant has been sentenced to life without parole, we make our own examination of the record for merits, if any, of all other objections made at trial. Rule 11(f) of the Rules of the Supreme Court and Court of Appeals. We find no reversible error in the rulings on those objections.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jesse WILFORD v. STATE of Arkansas
    CR 89-111
    777 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      William R. Simpson, Jr., Public Defender, and Thomas B. Devine III, Deputy Public Defender, by: Jerry J. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Kelly A. Procter, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Jesse Wilford, was convicted of three counts of aggravated robbery and one count of rape. He argues that the evidence was not sufficient to support his conviction on one of the aggravated robbery charges. We affirm the judgment of conviction.

On October 8,1988, three young women, Tammy, Angelia, and Cháncela, attended a concert at the State Fair in Little Rock. When they were returning to their car later that night, they were approached by two males, one of whom was subsequently identified as appellant. Appellant pulled a pistol, held it to Tammy’s chest, and demanded her wallet. She told him she did not have a wallet, but offered him all the change that she had in her pocket. He then waved the pistol at Cháncela and Tammy. Cháncela reached in her pocket and gave the second man all of her money. The second man then came around behind Angelia and stuck his hands in her jean pockets. He then began to undress Angelia and subsequently raped her while appellant held the gun on Tammy and Cháncela.

Appellant concedes that there was sufficient evidence to support his convictions for the rape of Angelia, and for aggravated robbery with respect to Tammy and Cháncela. He argues, however, that there was not sufficient evidence to support his conviction for aggravated robbery with respect to Angelia.

On appeal, we review the evidence in the light most favorable to the appellee, and the judgment will be affirmed if there is substantial evidence to support the verdict. Taylor v. State, 296 Ark. 89, 752 S.W.2d 2 (1988). A person commits aggravated robbery if he commits robbery and is armed with a deadly weapon. Ark. Code Ann. § 5-12-103 (1987). A person commits robbery if, with the purpose of committing a theft, he employs or threatens to employ immediate physical force upon another. Ark. Code Ann. §§ 5-12-102 & 5-36-103 (1987). Intent or purpose to commit a crime is a state of mind which must be inferred from the circumstances because it is not ordinarily capable of proof by direct evidence. Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188 (1986). A person is criminally liable for the conduct of another person when he is an accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402 (1987). A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he aids or attempts to aid the other person in committing it. Ark. Code Ann. § 5-2-403 (1987).

Here, there was substantial evidence that the three (3) women were together when the appellant and an accomplice approached them. Appellant pulled a pistol, held the pistol to Tammy’s chest, and demanded money. He then waved the pistol at Angelia and Cháncela. Cháncela handed over her money. Meanwhile, the accomplice stuck his hands in Angelia’s pockets. The evidence is sufficient to support a conviction for aggravated robbery of Angelia.

Affirmed.


author: Steele Hays, Justice.

text:
    Thomas W. DUPREE, et al. v. TWIN CITY BANK
    89-123
    777 S.W.2d 856
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      Lesly W. Mattingly, for appellants.

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Frank S. Hamlin and Christopher O. Parker, for appellee.
   Steele Hays, Justice.

In this appeal from a grant of summary judgment, the primary question is whether the trial court properly found the statute of limitations had run.

Prior to 1983, Twin City Bank, the appellee, had made land development loans to the appellants, Thomas Dupree, et al. Upon default by the appellants, the appellee commenced foreclosure proceedings. At some point during the foreclosure proceedings, apparently in December 1983, there was an alleged oral agreement between the bank and appellants to the effect that appellants would not contest the foreclosures, would seek buyers and third party financing to assure repayment of all sums owed to the bank, and upon the sale of the properties to these new buyers, the bank would forego deficiency judgments against the appellants. Appellants contended that they kept their end of the agreement but the bank refused to release them from its judgment liens.

On April 1, 1988, appellants filed a complaint alleging constructive fraud, duress, misrepresentation and bad-faith breach of contract, but few facts of the case were given. An amended complaint was filed on June 3,1988, giving more of the circumstances that led up to appellants’ cause of action. The pleading included the following allegation:

That it was specifically agreed and understood that the loans for the purchase of the property that was subject to the foreclosure proceedings would be closed by either the Defendant or [another bank], and in any event, the plaintiffs would be absolved of all responsibility under the foreclosure judgments through the closing of the loans regardless of who financed the purchase of said properties. . . .That as of July 10,1984, the defendant had been paid in full for all of the foreclosure judgments mentioned herein against the plaintiffs and that on October 31,1984, plaintiffs mailed to defendant three orders seeking its approval which would satisfy said judgments in full . ; that defendant failed and neglected to approve said orders or to satisfy any of the judgments it held against the plaintiffs in accordance with the agreement between the parties hereto. [Our emphasis].

The appellee filed a motion to dismiss and a hearing was held on September 19, 1988. The trial court treated the motion to dismiss as a motion for summary judgment and dismissed the case with prejudice on the basis of the statute of limitations.

It is not entirely clear what cause of action was being pleaded by appellants — whether it was breach of contract or some manner of fraud or misrepresentation. It is not necessary to reach that question, however, as the statute for both oral contracts and fraud is three years. Ark. Code Ann. § 16-56-106 (1987); Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988). Nor is there a difference in the triggering event for the accrual of the cause of action, discussed infra.

The appellants argue that even if their cause of action is in tort, there is an underlying cause of action in breach of contract and under the circumstances of this case, the contract was not breached until April 4, 1985.

On March 26,1985, appellants wrote the bank, asserting the bank’s failure to abide by the agreement and demanding performance or suit would be filed. The bank responded on April 4, 1985, and refused, denying that all conditions precedent to its performance had occurred. Appellants argue that there is no breach of contract until there is an unequivocal statement by the party committing the breach, such as the statement by the bank in its April 4th letter, citing to Rice v. McKinley, 267 Ark. 659, 590 S.W.2d 305 (1979), and Ingram Lumber v. Ingersoll, 93 Ark. 447, 125 S.W. 139 (1910). We do not think that to be a correct statement of the law.

First, neither of the cases cited by appellants supports their proposition. Rice was only addressing what facts supported a finding that a party was ready to perform. Similarly, Ingram found that an unequivocal statement by a party constituted a breach. Neither case examined whether an unequivocal statement is a prerequisite for a breach.

Second, the law is settled on the time the statute of limitations runs for either fraud or breach of contract. Generally, for breach of contract, “[t]he true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion.” 51 Am. Jur. 2d, Limitation of Actions § 107 (1970). As we stated on the question of statute of limitations for contracts, a cause of action “accrues the moment the right to commence an action comes into existence.” Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969). And if the right of action depends upon some contingency or a condition precedent, the cause of action accrues and the statute of limitations begins to run when the contingency occurs or the condition precedent is complied with. Rice v. McKinley, supra.

As to fraud or misrepresentation, mere ignorance of one’s rights does not prevent the running of the statute of limitations or laches, unless such ignorance is due to fraudulent concealment or misrepresentation on the part of those invoking the benefit of the statute. Landman v. Fincher, 196 Ark. 609, 119 S.W.2d 609 (1938). While an action for fraud must be brought within three years from the date the cause of action accrues, the fraud does suspend the running of the statute of limitations and the suspension remains in effect until the party having the cause of action discovered the fraud or should have discovered it by the exercise of reasonable diligence. Talbot v. Jansen, supra.

Here, there is no question that the statute of limitations had run at the time appellants filed their complaint on April 1, 1988, under either cause of action. It is affirmed by the language in appellants’ complaint. After appellants mailed the orders to appellee for approval on October 31, 1984, the appellee had “failed and neglected to approve said orders ... in accordance with the agreement between the parties. . . .” The cause of action for breach of contract accrued when performance by the bank was due, and for misrepresentation, when appellants discovered or should have discovered performance was not forthcoming. In either case that was a reasonable time after October 31,1984. Thus the ruling by the trial court that appellants’ cause of action was barred when the complaint was filed on April 1, 1988, is not clearly erroneous.

On November 21, 1988, after the September 19th hearing and the trial court’s ruling, appellants filed a second amended complaint. They alleged that as of their letter of March 26,1985, they still had a good-faith belief that appellee intended to perform and it was only on receiving appellee’s April 4th reply that they learned otherwise. The trial court refused to consider the second amended complaint because the case had already been adjudicated and the appellants contend this was error, citing to ARCP Rule 15, “Amended and Supplemental Pleadings.” We find no error.

While the language of ARCP Rule 15 clearly encourages liberal amendments of pleadings, as we noted in Kay v. Economy Fire & Casualty Co., 284 Ark. 11, 678 S.W.2d 365 (1984), we also recognized that at the same time the trial court is given broad discretion to determine whether an amendment should be allowed to stand and only abuse of that discretion will require reversal.

Here, there was no reason offered by appellants for the delay in bringing the second amended complaint eight months after the first complaint and almost three months after the adjudication of the case on its merits. Amendments made after judgment are not on the same footing as those made prior to judgment. See Shinn v. 1st National Bank of Hope, 279 Ark. 774, 606 S.W.2d 154 (1980). We cannot conclude that the trial court’s discretion was abused in this instance.

AFFIRMED.

       An order dismissing the complaint was not entered at that time as the appellee filed a motion for fees and costs to be assessed against the appellants which the court wanted to consider before handing down its order. The order was entered on January 23, 1989.

       There is no need to address the point but we note that the test for the statute of limitations for fraud is not a subjective one, i.e., when the fraud was discovered or should have been discovered, Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988).


author: David Newbern, Justice.

text:
    Marion KAY, Executrix of the Estate of J.D. Kay, Deceased v. Peggy MARTIN
    89-140
    777 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      McMillan, Turner & McCorkle, for appellant.

      Lane, Muse, Arman & Pullen, for appellee.
   David Newbern, Justice.

Marion Kay, executrix, appeals from a judgment in favor of Peggy Martin for personal injury against the estate of J.D. Kay. The claim arose from an automobile collision. Mr. Kay’s estate contends it had to accept a juror it did not want because its last remaining peremptory challenge was used to excuse a juror who should have been excused for cause. It is also argued that a list of medical expenses incurred by Ms. Martin should not have been admitted into evidence because it was not shown that they were necessary. We affirm because we find the estate did not use all its peremptory challenges and because the court did not abuse its discretion in admitting the evidence.

1. The jury

During voir dire of the jury panel several jurors stated they had been represented or were related to persons who had been represented by the law firm of which Ms. Martin’s lawyer was a member. The court declined to excuse for cause Ms. Hrvatin who stated her husband had been represented by the firm in an insurance settlement ten years earlier. The estate excused Ms. Hrvatin peremptorily as it did Ms. Garrett for whose family the firm had handled a probate matter. The estate thus had one additional peremptory challenge.

The estate asked that Ms. Davis, whose father was being represented by Ms. Martin’s lawyer’s law firm on a social security claim, be excused for cause. The estate’s abstract of the record shows the court said, “I’m going to strike Ms. Davis.” The abstract also shows counsel for the estate said, “I want to note for the record that, because of the Court’s refusal to strike Ms. Hrvatin, I was obliged to use one of my peremptories which I would have used on the other Lane, Muse, Arman & Pullen clients. Now I am stuck with two of them on the panel.”

The estate’s abstract does not demonstrate that all of its peremptory challenges were used. The record shows that the court said, “I am going to strike Ms. Davis for cause. . . .’’Only Ms. Hrvatin and Ms. Garrett were struck peremptorily by the estate.

We decline to examine the merits of a claim that the court should have excused a juror for cause if all of the peremptory challenges of the party making the claim were not exercised. Rickett v. Hayes, 256 Ark. 893, 511 S.W.2d 187 (1974); Mason v. Loving, 251 Ark. 356, 473 S.W.2d 169 (1971).

2. The evidence

Ms. Martin’s Exhibit 4. was a list of medical expenses she incurred after the date of the collision. Attached to the list were the bills listed, totaling $9,109.90. Ms. Martin testified that each of the bills was related to the accident she said was caused by Mr. Kay. When Ms. Martin’s counsel asked that Exhibit 4. be admitted into evidence, counsel for the estate objected on the ground that there had been no showing that the expenses represented were reasonable and necessary. The court withheld its decision on admitting the exhibit until after listening to the recording of the deposition of Ms. Martin’s treating physician, Dr. Allen Gocio.

In his deposition, Dr. Gocio spoke of treatment of Ms. Martin antedating the treatment resulting from the accident. He stated that her earlier back and neck problems had been resolved prior to the date of the accident. He saw her the day after the accident and performed tests revealing a cervical strain. Her condition did not improve. She underwent physical therapy but again did not improve, and spinal surgery was performed which resulted in significant improvement, but she still had “mechanical neck pain and severe headaches.” She was not allowed to work and was placed on pain medication. The remainder of Dr. Gocio’s deposition detailed subsequent treatment including therapy and medication. He referred to a brain aneurysm she suffered which he felt was unrelated to the accident. He stated his charges of $2,900 were all related to Ms. Martin’s cervical condition.

After hearing the deposition testimony of Dr. Gocio, the court admitted Ms. Martin’s Exhibit 4. over the estate’s objection that there had been no showing that the bills, other than Dr. Gocio’s $2,900 charge, were reasonable and necessary. The court stated it would be for the jury to decide. The jury returned a general verdict of $38,000 in Ms. Martin’s favor.

When a plaintiff in a personal injury case seeks to recover medical expenses they must be shown to have been reasonable and necessary. In Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1985), we discussed the requirement and held that medical testimony was not necessary to prove reasonableness and necessity. The trial judge was said to have discretion in deciding whether the testimony of a non-expert witness, such as the injured party, is sufficient to form a foundation for admitting evidence of the expenses incurred.

The estate cites Henry v. Landreth, 254 Ark. 483, 494 S.W.2d 114 (1973), in support of its argument that the expenses detailed in Exhibit 4. were not shown to have been necessary. In the Henry case, the plaintiff had suffered an injury unrelated to the one upon which the claim was based and presented medical bills in a “bundle.” In that case the appellant suggested that the plaintiff had not sustained her burden of showing that each of the bills was made necessary or caused by the incident for which she sought recovery. We did not rule on the issue.

Here, Ms. Martin carefully went over each of the bills in Exhibit 4. with her counsel in her direct testimony at the end of which she testified that all were incurred as a result of injuries sustained in the collision. Unlike the evidence in the Henry case, it was thus not a “bundle” of bills without individualized explanations, and we hold that Ms. Martin’s testimony in conjunction with the testimony of Dr. Gocio was sufficient for us to say that the court did not abuse its discretion in admitting the evidence.

Affirmed.


author: Tom Glaze, Justice.

text:
    Betty DYE v. WAL-MART STORES, INC.
    89-137

      777 S.W.2d 861
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      Hardin, Jesson & Dawson, by: /. Leslie Evitts III, for appellant.

      Martin, Vater, Karr & Hutchinson, by: W. Asa Hutchinson, for appellee.
   Tom Glaze, Justice.

This is a slip and fall case in which the trial court granted appellee’s motion for a directed verdict. Appellant’s only issue on appeal is that the evidence was sufficient for her case to be submitted to the jury. We disagree and therefore affirm.

On October 22,1986, sometime between 9:15 a.m. and 9:30 a.m., appellant went to appellee’s place of business to purchase medication. It had been raining for an extended period of time that morning. Appellant entered the glassed-in foyer area of the store and wiped the water from the soles of her tennis shoes on floor mats. Upon going through a second set of glass doors and entering the main part of the store, appellant slipped and fell, sustaining severe injuries. She contends she slipped because appellee failed to provide a second set of floor mats in front of the second set of doors.

This court has stated that the mere fact that a patron slips and falls in a store does not give rise to an inference of negligence. Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989); Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986). The law is settled that the appellee owes the invitee the duty to use ordinary care to maintain the premises in a reasonably safe condition. Johnson, 299 Ark. 399, 771 S.W.2d 782; AMI Civil 3rd, 1105. To prevail in a slip and fall case, the appellant must show that appellee violated this duty by proving either (1) that the presence of a substance upon the floor was the result of the negligence on the part of the appellee or (2) that the substance has been on the floor for such a length of time that the appellee’s employees knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Id.; see also Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987); Willmon, 289 Ark. 14, 708 S.W.2d 623. In the present case the trial judge ruled that the appellant failed to introduce evidence which would satisfy either prong of the above-stated test. We agree.

In viewing the record in the light most favorable to the appellant, the record reflects the following events: (1) appellant went to the store within thirty minutes after it opened for business on a rainy day; (2) she wiped rain off her tennis shoes on the floor mats placed immediately inside the entrance and enclosed foyer of the store; (3) she was aware no mats appeared inside the main part of the store at the second entranceway but noticed no substance on the floor at any time; and (4) after her fall, she noticed no water or any other substance on her clothing. In sum, appellant not only failed to show appellee knew or reasonably should have known of the presence of a foreign substance on its floor and failed to remove it, she offered no proof that any substance whatsoever was present at the time and place she fell. The trial court’s decision to grant appellee’s motion for directed verdict was correct.

We affirm.


text:
    Garland T. HEARNE and Lois Hearne, His Wife v. Paul Edward McADOO and Doris E. McAdoo, His Wife, and Donald Ray Samples and Teresa Kay Samples, His Wife, and Jim Walter Homes, Inc.
    89-142
    777 S.W.2d 863
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      Webb & Doerpinghaus, by: Charles J. Doerpinghaus, Jr.; and Fred Briner, for appellant.

      Gruber Law Firm, by: Wayne A. Gruber, for appellee.
   Tom Glaze, Justice.

This case is certified to this court on the premise that it involves the construction of a deed. We do not reach the merits raised in the appeal because the chancellor’s order fails to comply with ARCP Rule 54(b).

Appellants, Garland and Lois Hearne, initiated this suit to remove the cloud on their title to 22.47 acres located in Saline County. The property in question was involved in a number of transfers over the past fifty years, including a tax sale which is in issue in this appeal. Other issues raised by appellants center on their claim that Garland and his father, J. G. Hearne, had an agreement that a family member, by paying taxes and upkeep expenses, could live on the property. Garland’s sister, Leska Marie McAdoo and her husband, C.O., lived on the property until they died — Leska Marie died in 1985. Appellees, Paul and Doris McAdoo, claim title to this disputed land by a September 28,1983 deed from Paul’s mother, Leska Marie McAdoo. Leska McAdoo also conveyed one acre of the property to her granddaughter and her husband, appellees Don and Teresa Samples. The Samples mortgaged their one acre apparently in connection with improvements made by appellee Jim Walter Homes, Inc. (Walter Homes). Walter Homes filed its action to foreclose on the one acre tract, and that foreclosure action was consolidated with the Hearnes’ quiet title suit.

Although the chancellor decided that the appellees, Paul and Doris McAdoo, had established their claim to the property by adverse possession, the claims raised regarding the foreclosure action remain unresolved. In fact, the chancellor stated that he retained jurisdiction of the case to adjudicate the right of Walter Homes pending the receipt of a survey of the premises involved in the foreclosure.

Under ARCP Rule 54(b), when multiple parties are involved in an action, the lower court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. The chancellor made no such express determination here, and in fact clearly indicated that a portion of the case had not been adjudicated. Inasmuch as the chancellor’s order did not comply with Rule 54(b), no final judgment has been entered and no appeal may be taken. See, e.g., 3-W Lumber Co. v. Housing Authority for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985).

For the reasons stated above, the appeal is dismissed.


author: Per Curiam.

text:
    Elizabeth Gammon BROWN v. STATE of Arkansas
    RC 89-47
    777 S.W.2d 585
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      William Lee Fergus, for movant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

William Lee Fergus, Elizabeth Gammon Brown’s attorney, has filed a motion on behalf of Brown for rule on clerk. For the reasons stated below, we remand to the trial court for further proceedings.

An order for judgment and commitment was entered in Mississippi County Circuit Court against the appellant, Elizabeth Gammon Brown, on April 17, 1989. Notice of appeal was filed on April 25,1989, and an order extending the time to file the record until September 1, 1989, was entered on June 26, 1989. The record was received by the clerk of this court on September 5, 1989, and the clerk refused to docket the appeal because the record was not timely filed pursuant to Ark. R. App. P. 5.

Ark. R. App. P. 5 provides that the record on appeal shall be filed with the clerk of this court within ninety days of the notice of appeal unless the trial court grants an extension. It is the responsibility of the attorney to transmit the record on appeal to the clerk of this court for filing and docketing. Lewis v. State, 295 Ark. 165, 747 S.W.2d 91 (1988).

In support of Brown’s motion for rule on clerk, counsel alleges, without admitting fault, that he was prevented from meeting his resppnsibility for filing a timely record in that the circuit clerk has been instructed by the circuit judges “to not turn over the transcripts in any criminal cases to defense attorneys appealing them, but to take care of mailing the transcripts themselves.” This allegation, if true, may provide good cause to grant Brown’s motion without the usual requirement that counsel admit fault for the late filing. Accordingly, we remand to the trial court for a determination as to whether the actions of the court or its circuit clerk prevented counsel from discharging his duty to transmit the record on appeal to the clerk of this court.

Remanded.


author: Per Curiam. John I. Purtle, Justice,

text:
    George W. KNIGHT v. ALLSTATE INSURANCE CO.
    RC 89-41
    779 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      Dan J. Kroha, for appellant.

      Wright, Lindsey & Jennings, by: Alston Jennings, Jr., for appellee.
   Per Curiam.

Motion for rule on the clerk to lodge transcript is denied.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. The opinions of this court have, for the past several years, reflected the contention of the petitioner for a rule on the clerk. A timely post-judgment motion was filed. It was taken under consideration, following a hearing, within 30 days from the time it was filed, but the judgment was entered more than 30 days after the motion had been filed.

The 1988 Amendment to Rule 4(c), A.R.C.P., deleted the language which formerly provided that if the motion for post-judgment relief was taken under consideration or set for a hearing within 30 days from the filing of such motion, the time for filing notice of appeal was tolled until the trial court rendered an opinion.

All lawyers should be aware of the change in the appellate procedure. Prior opinions are misleading on this issue.


author: Darrell Hickman, Justice.

text:
    MID-SOUTH BEVERAGES, INC. v. FORREST CITY GROCERY CO., INC.
    89-23
    778 S.W.2d 218
    Supreme Court of Arkansas
    Opinion delivered October 23, 1989
    [Rehearing denied November 20, 1989.]

      Daggett, Van Dover, Donovan & Cahoon, by: Robert W. Donovan, for appellant.

      Sharpe, Beavers & Routon, for appellee.
   Darrell Hickman, Justice.

The question is whether the complaint filed by the appellant stated a cause of action for the tort of interference with a contractual relationship or business expectancy. The chancellor ruled it did not and dismissed the complaint with prejudice. We reverse his decision and remand for further proceedings.

The elements of the tort of interference are: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Walt Bennett Ford v. Pulaski County Spl. School Dist., 274 Ark. 208, 624 S.W.2d 426 (1981).

The complaint alleged: (1) Mid-South has an exclusive agreement with Pepsico to bottle and distribute its beverages in a certain geographic territory; (2) Forrest City Grocery (FCG) had sold and distributed Pepsi within Mid-South’s territory; (3) Mid-South’s customers were being induced to sever their business relationships with Mid-South and instead make purchases from FCG, causing loss of business to Mid-South; and (4) FCG acted wilfully, knowing its acts interfered with Mid-South’s contractual relationships and with its customers. The trial judge premised his decision on the fact there was no contractual relationship between Mid-South and FCG.

In reviewing a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintilf. It is improper for the trial judge to look beyond the complaint to decide a motion to dismiss. Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989).

Using this standard of review, the complaint stated a cause of action. No contractual relationship had to exist between these parties. The chancellor dismissed the complaint with prejudice under ARCP Rule 12(b)(6). Even if grounds existed, the complaint should not have been dismissed with prejudice.

Reversed and remanded.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    The CRAWFORD/SEBASTIAN COUNTY SCAN v. Carolyn KELLY
    89-149
    778 S.W.2d 219
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      James B. Barnhill, Deputy Counsel, Office of Chief Counsel, Department of Human Services, for appellant.

      Gant & Gant, for appellee.
   Jack Holt, Jr., Chief Justice.

The issue in this appeal is what standard of review a court should utilize when reviewing a determination by the Department of Human Services on the issue of whether an alleged child abuser’s name should be expunged from the State Central Registry. Jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c).

On February 17,1988, the appellant, the Crawford/Sebastian County SCAN (SCAN) received an anonymous report of child abuse allegedly perpetrated by the appellee, Carolyn Kelly, against her nine-year-old son. During an investigative interview on the same day with Amy Evans, an evaluator employed by SCAN, Kelly admitted spanking her son with a belt on February 13, 1988, for wearing his white tennis shoes hunting. She also admitted that the spanking caused bruises but stated that her son bruised easily. She asserted that she had left marks in the past and would continue to do so in the future, that she “sees nothing wrong” with doing so, and that “a child can’t get a spanking without leaving bruises.”

The evaluator observed and photographed the child’s bruises, which included two purple horizontal bruises on his lower right buttock, one above his upper right buttock, a large blister-like bruise on his back left thigh, and a red bruise across his left shin. The child told her that the bruises resulted from a spanking he received on February 13,1988. According to the evaluator, the child exhibited undue fear of his mother and step-father and indicated that the spanking was not an isolated incident. Based upon this information, the evaluator determined that child abuse was substantiated by the facts, i.e., that there was some credible evidence that child abuse had occurred. See Department of Human Services, Services Program Policy Manual § 1823.9 (1988). She recommended lay therapy and parenting classes. She then made a written report of her investigation to the State Central Registry as required by Ark. Code Ann. § 12-12-508 (1987).

Kelly contested the determination of the evaluator, seeking to expunge her name from the State Central Registry pursuant to Ark. Code Ann. § 12-12-516 (1987). An administrative hearing was held at the Crawford County office of the Department of Human Services. The Department determined that there was some credible evidence to substantiate child abuse based upon the admission by Carolyn Kelly that she spanked her son with a belt on February 13, 1988, which resulted in bruises being left; and the photographs of the bruises taken on February 17,1988, and other photographs of the bruises taken on February 26,1988. It concluded that no amendment to or change in the State Central Registry was required.

Thereafter, Kelly filed a petition in circuit court asking that the findings of the Department be set aside and that her name be removed from State Central Registry. After reviewing the record of the administrative hearing, the court found that the decision of the Department was not supported by substantial evidence and ordered the Department of Human Services to strike the name of Carolyn Kelly from its registry. From this order, SCAN appeals.

For reversal, SCAN contends that the trial court erred in applying the substantial evidence rule in that the correct standard of review is the “some credible evidence” test. We agree.

As a general rule, a circuit court’s review of actions of an administrative agency is limited to a determination of whether there is substantial evidence in the record to support the agency’s decision. Ark. Real Estate Commission v. Harrison, 266 Ark. 339, 585 S.W.2d 34 (1979). See also Ark. Dept. of Human Services v. Simes, 281 Ark. 81, 661 S.W.2d 378 (1983). However, our code provisions concerning child abuse reporting establish a different standard where the issue being reviewed is whether an alleged child abuser’s name should be expunged from the State Central Registry.

Ark. Code Ann. § 12-12-508(f) (1987) provides that “[t]he department shall make a written report or case summary [of the investigation of child abuse], together with services offered and accepted, to the State Central Registry----” Ark. Code Ann. § 12-12-516(a) (1987) states that “[u]nless an investigation of a report conducted pursuant to this subchapter determines that there is some credible evidence of alleged abuse, sexual abuse, or neglect, all information identifying the subject of the report shall be expunged from the central registry forthwith.” [Emphasis added.] Ark. Code Ann. § 12-12-516(d) provides in pertinent part as follows:

At any time subsequent to the completion of the investigation, but in no event later than ninety (90) days after receipt of a report, a subject of the report may request the commissioner to amend, seal, or expunge the record of the report. If the commissioner refuses or does not act within a reasonable time, but in no event later than thirty (30) days after the request, the subject shall have the right to a fair hearing to determine whether the record of the report in the central registry should be amended or expunged on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this subchapter. The appropriate local child protection agency shall be given fair notice of the hearing. The burden, in such a hearing, shall be on the department and the appropriate local child protection services. In such hearings, the fact that there was a finding of child abuse, sexual abuse, or neglect shall be presumptive evidence that the report was substantiated.

Under Ark. Code Ann. § 12-12-516, the apposite question is whether there is some credible evidence of alleged child abuse to support the maintenance of appellee’s name in the State Central Registry, not whether there is substantial evidence of such abuse. Accordingly, we reverse and remand for an appropriate determination by the trial court.

Reversed and remanded.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Whenever the state usurps the role of the family in matters relating to the rearing and disciplining of children, it has gone too far. Whenever an agency of the state is allowed to substitute its judgment and actions for those of the parents, something is amiss. May we expect that soon children will be taken by the state and trained and controlled without interference by parents and family? After all, most parents do not have a “Service Program Policy Manual” and are therefore not prepared for “parenting” in a manner consistent with the edicts of state agencies as interpreted by their employees.

The mother spanked her child because he disobeyed her instructions against wearing his new white shoes into the woods. The child admitted disobeying his mother; moreover, he admitted punishment was justified. He surely should not have been rewarded for his disobedience. In Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985), we noted that “children must generally obey their parents and have their consent in legal matters.” As it stands now, the parent will be publicly labeled as an abuser of her child in the “State Central Registry,” with an enduring scarlet “A” before her name.

The trial judge observed and heard the witnesses as they were presented and was therefore in a much better position than this court to evaluate the testimony. The child was, no doubt, whipped too hard — however, given the circumstances in this case, the degree of severity was obviously a subjective matter best entrusted to the trial court’s judgment.

Nothing indicates that the same thing had happened before or that it would happen again. The mother readily admitted she would use corporal punishment in the future if warranted. She was shocked, as most people would be, to find that SCAN could invade her home without a warrant and brand her as a child abuser for all the world to see.

An employee of SCAN, a state agency, heard a rumor that the child had been whipped — not beaten — and went into the home, partially undressed the child, took pictures of his buttocks, and filed the photos in the public records. While in this case there was some basis for the rumor, the next time things may be different. A spiteful person or a gossip could wreak havoc in any home in any neighborhood simply by phoning SCAN and whispering rumors of abuse or neglect.

Child abuse is indeed a grave problem and must be eliminated so far as humanly possible. However, the eradication of this evil should not be used as the ostensible justification for the invasion of the home and the destruction of the parent-child bond. We have criminal statutes that may be invoked to bring real child abusers to justice.

If SCAN has actual information of child abuse, it should furnish it to the prosecuting attorney or other law enforcement agencies. Not only does SCAN refuse to abide by rules and guidelines concerning law enforcement, it has now set up its own judicial system — an administrative review body consisting of persons selected by SCAN. The outcome presumably will be consistent.

The general rule with respect to the parent-child relationship is that the family is an autonomous entity under the direction and discipline of the parents. 59 Am. Jur. 2d, Parent and Child, § 10. Further, as this court observed in Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979): “[T]here remains no lingering doubt . . . that the rights of parents to the care, custody and upbringing of their children are the subject of constitutional protection on both due process and equal protection standards.”

Certainly, parental authority concerning a child’s welfare is subject to state restriction and regulation. 59 Am. Jur. 2d, Parent and Child, §11. Nevertheless, undue state interference in the natural rights of parents to the custody and control of their children must not be permitted under the laudable pretext of preventing child abuse.


author:
Jack Holt, Jr., Chief Justice. John I. Purtle, Justice, David Newbern, Justice, Darrell Hickman, Justice,
      Tom Glaze, Justice,

text:
    STATE of Arkansas v. Gary D. TIPTON
    CR 89-49
    779 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989
    [Rehearing denied December 4, 1989.]

      Compton, Prewett, Thomas & Hickey, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst Att’y Gen., for appellee.

      Hickman, Hays, and Glaze, JJ., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

The trial court dismissed with prejudice the second degree murder charge pending against appellee Gary D. Tipton because the State failed to bring Tipton to trial within the twelve-month period set forth in Ark. R. Crim. P. 28.1(c). The State attempts to appeal from the trial court’s order pursuant to Ark. R. Crim. P. 36.10, alleging that jurisdiction lies in this court under Ark. Sup. Ct. R. 29(l)(c). We find that under the circumstances the State has no right to appeal under Rule 36.10 and, therefore, we dismiss the appeal.

As a general rule, the State has no right to appeal except as conferred by constitution or rule of criminal procedure. State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988). Ark.R. Crim. P. 36.10(b) and (c) authorizes the State to appeal following either a misdemeanor or felony prosecution if “the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and the correct and uniform administration of the criminal law requires review by the Supreme Court." (Emphasis added.)

It is clear that the State’s point for reversal that the trial court erred in dismissing the charge and in denying its motion for an excludable period does not involve the correct and uniform administration of the criminal law, a prerequisite for appeal under Rule 36.10(b) and (c). It simply concerns application of our speedy trial rules. Accordingly, the State cannot appeal from the trial court’s order.

Appeal dismissed.

Purtle, Dudley, and Newbern, JJ., concur.

Glaze, J., concurs in part and dissents in part.

Hickman and Hays, JJ., dissent.

John I. Purtle, Justice,

concurring. Justice Hickman’s dissenting and Justice Glaze’s concurring opinions display a failure to fully appreciate the purpose behind the speedy trial rules. These rules were not established for the benefit of criminals. They were designed for the benefit of accused persons in particular and society in general. They are most beneficial to those unfortunate innocent persons who are finally found not guilty at trial or who have had their indictments or informations dismissed after the state determines that charges should never have been filed. The rules most directly affect people who have not been convicted and may never be convicted. They also accelerate the entry into prison of those who are tried and found guilty.

The societal interest in speedy trials must not be underestimated. The backlog of persons awaiting trial aggravates the already grievous problem of this nation’s overcrowded prison systems. Holding an accused in prison awaiting trial not only contributes to the expenses of overcrowding, it also exposes persons being held for trial to conditions which have “a destructive effect on human character and makes rehabilitation of the individual offender much more difficult.” Barker v. Wingo, 407 U.S. 514 (1972). Prior to the constitutional adoption of the speedy trial requirement, persons were being held without trial for months or even years. The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

See also the dissenting opinion by Justice Hickman, in which Justices Hays and Glaze joined, in Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989).

The Sixth Amendment was adopted in order to end the practice of holding persons in jail without trial for long periods of time. It worked for a while, but overcrowded dockets and delaying tactics by the accused and the state soon allowed courts to resume the unjust practice for their convenience and that of the state. The courts could not or would not abide by the speedy trial rules mandated by the United States Constitution. The speedy trial rules contained in the Arkansas Rules of Criminal Procedure were the result of legislative and societal demands. We are obligated to abide by our own rules.

Time has proven that the state will not perform its function to oversee speedy trials in the absence of written rules and precedent. Unbridled discretion by the state in such matters could lead to absurdities. A person accused of a misdemeanor could be held for a year without trial, while a minor felony could result in a life sentence. Unless we observe the rules we have promulgated, jails and prisons will surely become even more overcrowded, and the taxpayer’s burden will certainly be increased — and for no good reason. Society will indeed suffer. Most importantly, incarcerated persons will be forced to endure unwarranted terms of imprisonment without benefit of trial.

There are many negative side effects of holding persons accused of crimes for long periods of time without trial: The families of wage earners suffer; the public must support dependents of prisoners who are later determined to have been falsely accused; society forfeits the contributions of potentially productive citizens; taxpayers must bear the increased costs of lengthier holding time and additional prison space; and prisoners unjustly and needlessly held for so long a time suffer unmentionable harm. Finally, the very purpose of a trial — the search for truth — is defeated by undue delay. Witnesses disappear, evidence vanishes, and memory fades.

The United States Supreme Court held in Kloppfer v. North Carolina, 386 U.S. 213 (1967), that the right to a speedy trial is “fundamental” and is imposed on the state by the Due Process Clause of the Fourteenth Amendment. If we are to remain a nation of laws, it is imperative that we abide by them.

Dismissal is a severe penalty for failure to bring an accused to timely trial. However, it is the only available remedy. After all, the state commenced the proceedings and has the duty and obligation to those accused and other citizens to bring the matter to trial. See Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988).

There are valid reasons behind the speedy trial rules; i.e., the United States Constitution. The guarantees contained in the Sixth Amendment stand between the accused and what Shakespeare’s Hamlet listed as one of life’s insupportable evils — “the law’s delay.”

David Newbern, Justice,

concurring. By per curiam order of July 13, 1987, with no dissenting vote, we amended Ark. R. Crim. P. 28.1(c) to state:

Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, including released from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Previously, this subsection of the rule had provided for dismissal under the stated conditions if the defendant were not brought to trial within 18 months. We were convinced the state could and should bring defendants to trial within a year.

The change in the rule seems, as could have been expected, to have brought with it more cases in which we and the court of appeals are asked to review determinations of “excluded periods.” I have no doubt that each member of this court remains receptive to argument that the period should not have been shortened. Perhaps we will be convinced by someone, such as our Committee on Rules of Pleading, Practice, and Procedure (Criminal), if its members are so inclined, that we should return to the 18-month standard.

My reason for writing this concurring opinion is not to disagree with any aspect of the court’s opinion in this case. It is, rather, to address the issue raised by Justice Hickman’s dissenting opinion and Justice Glaze’s concurring opinion in this case and Justice Hickman’s dissenting opinion in Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989). The suggestion of those opinions seems to me to be that we should have no absolute limit as a speedy trial rule but should consider factors such as whether the defendant made a demand for a speedy trial and whether he was prejudiced by his alleged denial of a speedy trial. Such a change would be far more radical than a change back to the 18-months provision.

The primer on the subject of the “modern” constitutional right to a speedy trial is the opinion of Mr. Justice Powell written for the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). In that opinion, the Supreme Court did indeed address matters such as demand, waiver, and prejudice in deciding whether a defendant’s constitutional right to a speedy trial was violated. However, it was made clear that the court was not writing an opinion applicable to those states, such as Arkansas, which had adopted a rule narrowly, and definitely, establishing the period in which a defendant must be tried or have the case against him dismissed.

It was recognized in the opinion that there is far more at stake in the resolution of the speedy trial issue than .the Sixth Amendment’s guarantee.

The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes. It must be of little comfort to the residents of Christian County, Kentucky, to know that Barker was at large on bail for over four years while accused of a vicious and brutal murder of which he was ultimately convicted. Moreover, the longer an accused is free awaiting trial, the more tempting becomes his opportunity to jump bail and escape. Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation. [407 U.S. at 519-520, footnotes omitted]

It was interests such as these I thought we were considering when we reduced the period from 18 to 12 months, and which I have always assumed to be part of the judgment which must be made if we are to impose a speedy trial limit.

After noting that the speedy trial right is “more vague” than other procedural concepts, the Supreme Court recognized that a number of states have adopted speedy trial deadlines like ours, and that the American Bar Association recommended it as a solution to the problem. With respect to the possibility that the Supreme Court adopt such a standard, Mr. Justice Powell wrote:

But such a result would require this Court to engage in legislative or rulemaking activity, rather than in the adjudicative process to which we should confine our efforts. We do not establish procedural rules for the States, except when mandated by the Constitution. We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise. [407 U.S. at 523]

Thus, while the federal courts and the Supreme Court are limited to applying the Sixth Amendment imprecisely, and must include in the decisional process the usual balancing factors such as demand, waiver, and prejudice, it is clear that the decision in Barker v. Wingo does not require us to do likewise. In footnote 29, 407 U.S. at 530, it is stated, “[n]othing we have said should be interpreted as disapproving a presumptive rule adopted by a court in the exercise of its supervisory powers which establishes a fixed time period within which cases must normally be brought.”

In the dissenting and concurring opinions of my colleagues, to which I referred above, there seems to be a suggestion that we have gone astray in our efforts to protect the right of an accused to a speedy trial. No consideration is given to the other relevant interests of society which have been recognized by the Supreme Court and which we should recognize too. If the suggestion is that we revoke our criminal procedure rule and put ourselves back in the position of the Supreme Court with all the vagueness and imprecision that would carry with it, and if a majority of this court should choose to follow such a suggestion in some future order, then so be it. I think it would be a mistake because of the considerations recited by Justice Powell and because it would provide another fertile field for litigation and make the speedy trial issue much more difficult to decide in the courts of this state.

Darrell Hickman, Justice,

dissenting. It is not often that a justice has to defend a dissenting opinion, but that is what I am called upon to do. Three concurring opinions filed in this case are actually in response to a dissent three of us made in Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989) (Hickman, J., dissenting). So the reader who is interested in this discourse should probably read that dissenting opinion first. It best states my views regarding the speedy trial rule.

Before responding to my colleagues, it is necessary first to see what occurred in this case. The trial judge dismissed murder charges against Tipton when twelve months had elapsed without a trial. The state appeals that ruling and the majority dismisses the appeal as a matter not prejudicial to the state and the uniform administration of justice. Nothing could be more wrong as demonstrated by the sharp dispute we have over our so-called speedy trial rule, its application and its future.

The facts of the case are unique. We do not know exactly why the trial judge dismissed the charge. No memorandum was entered in this case as there was in Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989), which would explain what happened. The record is simply silent on any argument made to the court or the. reason for the court’s decision.

The state’s motion for a continuance was granted in November of 1988 evidently because a key prosecution witness could not attend the trial on the scheduled date. This was a valid reason for delay. The prosecution represented the motion for a continuance as a joint motion, which was not the case. In an October 27 letter to the deputy prosecutor, the defense counsel refused to join the motion, while admitting that it might be to Tipton’s advantage that the doctor not appear. Whether the prosecution’s misrepresentation was intentional or otherwise is irrelevant to the state’s right to a continuance and to an excludable period for the witness’ unavailability. See Barker v. Wingo, 407 U.S. 514, 531 (1972) (“a valid reason, such as a missing witness, should serve to justify appropriate delay.”)

Just prior to Tipton’s January, 1989, motion to dismiss on speedy trial grounds, the state moved that the period from November 1988 to the March 1989 term of court be excluded from the speedy trial computation. The state’s motion also mentioned the illness of the presiding judge which had evidently caused some docket congestion. Perhaps the trial judge felt that since we have not recognized illness of the judge as a good reason for delay, it could not be considered in this case. See Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987). Even so, the judge did not address those questions; he simply dismissed the charge without explanation.

Since the record shows nothing to dispute the state’s claim that the witness was critical and unavailable, I find no basis for dismissal. If the deputy prosecutor misled the court, he should be disciplined. Regardless, the defendant should have to answer to the state for taking a life. He did not ask for a speedy trial, nor has he demonstrated any prejudice. The people are entitled to their day in court.

My colleagues, in their concurring opinions, make a good deal of noise and smoke but miss the point. The question is not whether we should have a speedy trial rule, but whether it should make sense. They are content to continue upholding a rule and our decisions interpreting that rule which create a legal trick allowing criminal defendants to avoid trial. They walk free on a genuine legal technicality. Ironically, the rule is called the speedy trial rule, and a defendant can avoid trial by simply laying low for a year and then crying “speedy trial” all the time, of course, not wanting a speedy trial. That is the perversion of the law which I addressed in the dissent in the Asher case.

The rule is defended because we have had it for some time, because the United States Supreme Court does not prohibit our rule, and because it makes trial judges and prosecutors pay attention to their business. That concedes it has little relation to the constitutional principle at issue. It is suggested that it would be too difficult to draft a rule to discipline prosecutors and trial judges who neglect their duties, and the best way to prompt them is to free criminals. Nonsense. This court loves to make rules. It makes criminal rules, civil rules, appellate rules, supreme court rules, trial court rules, ethical rules for lawyers and judges, rules for court reporters, rules for bar admission, legal specialization, legal education, and rules of evidence. Am I to believe that we cannot draft and enforce a rule to make judges and prosecutors move cases?

The question is not whether we should have a rule, but whether it should have any sensible relation to the constitutional right to a speedy trial. Should a defendant, if he wants a speedy trial, be made to ask at some time for a speedy trial in order to avail himself of that right? The concurring judges say no. Should a defendant merely have to show how he might be prejudiced and indeed denied any of his rights by the fact he has not been promptly brought to trial? The concurring justices say no. That is the part of the rule and our decisions that make no sense.

In Barker v. Wingo, supra, the Supreme Court specifically addressed the matters of prejudice and a defendant’s obligation to assert his right:

We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.

Regarding prejudice to the defendant, the court said:

A fourth factor is prejudice . . . assessed in light of the interests of the defendant which the speedy trial right was designed to protect.

The old saw that it might not be a good rule but it has been around for a long time, and we unanimously approved the change, is added to the arguments to defend the rule. The principle of stare decisis is no excuse for upholding a decision that is indefensible. Any time we find we have made a mistake we should correct it at the first opportunity. Who would be prejudiced if we closed this legal loophole and removed this legal trick? No person will be denied a speedy trial if he asks for it; no charges will remain if he is denied a fair trial because of delay. Isn’t that what the constitution means?

This court has not been averse to overruling decisions that have stood for many years. Established precedent was rejected in Southern Farm Bureau Life Ins. Co. v. Cowger, 295 Ark. 250, 748 S.W.2d 332 (1988); Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987); Walker v. Arkansas Dept. of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987); and City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). It has never been adverse to changing rules; we do it all the time. See Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). The opportunity to overrule precedent was declined in Southwest Ark. Communications Inc. v. Arrington, 296 Ark. 141, 753 S.W.2d 267 (1988); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).

I can only suppose my fellow justices are sincere in defending a policy and a rule because they deem it right and just. I happen to disagree.

Tom Glaze, Justice,

dissenting in part; concurring in part. I agree with the majority court that this court is mandated to affirm the dismissal of the appellant’s case, but I am firmly convinced this court should change its speedy trial rule so future criminal charges cannot be dismissed unless a defendant, at the very least, requests a trial and can show some prejudice. In this respect, I fully agree with Justice Hickman, and indeed, joined his dissent addressing this issue in Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989). Justice Hickman’s dissent in Asher states my views, so I need not reiterate them here. Suffice it to say, this court, in adopting its Rules of Criminal Procedure in 1976, simply went too far (or perhaps failed to go far enough) when it promulgated a speedy trial rule that omitted reference to two of four factors the Supreme Court said were necessary when considering whether a defendant has been denied a speedy trial. See Barker v. Wingo, 407 U.S. 514 (1972). Those two factors were that a defendant must assert his right to a speedy trial and be prejudiced by having been denied one.

I join with the majority here because the speedy trial standard and this court’s cases interpreting it have been in place for thirteen years, and defendants, trial bench and the bar should be apprised if this court intends to change its view on this important subject. Aside from when changes in Rule 28 should take effect, when we abolished Criminal Procedure Rule 37 and its post-conviction remedies, we allowed persons convicted and sentenced during Rule 37’s existence to proceed under that Rule. To do so merely recognizes an accused’s right to rely on the Rule and case precedents interpreting it until that law was abolished. See Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). The same situation exists here. If the court chose to modify its Speedy Trial Rule, A.R.Cr.P. Rule 28, the defendants (including the. appellant here), who have relied on Rule 28 as it was previously worded, would be entitled to its benefits.

In conclusion, it is my opinion that common sense and logic warrant a change in our Speedy Trial Rule, and one’s sense of justice — when considering the rights of both the accused and the people of this state — demands it. For these and the other reasons given in Justice Hickman’s dissent in Asher, my stance in future cases will be that a defendant must assert his speedy trial right and show prejudice before his or her case can be dismissed. My hope is that my colleagues, who do not now agree to changing Rule 28 at this time, will reconsider and change their views in the near future.

In the present case, I would add that appellant’s counsel informed the deputy prosecutor in this case that counsel was ready to go forward with the trial, as scheduled, on November 4, 1988. At least, in this case, the defendant did appear to pursue his right to a speedy trial, but was denied it. For whatever reason not made clear in the record in this appeal, the deputy prosecutor misrepresented to the trial judge that the defendant’s counsel joined in a continuance of the November 4, 1988, trial. In addition, the deputy prosecutor apparently made no effort to obtain a continuance on other grounds. In any event, whatever delay that occurred in this case seems attributable solely to the state and not the defendant. Defendant asserted his right to trial and failed to receive it. The trial court’s decision must be affirmed.

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

Law Offices
Compton, Preweit, Thomas & Hickey, P. A.
P.O. DRAWER 1917
423 NORTH WASHINGTON
El Dorado, Arkansas 71731
(501)862-3478
Robert C. Compton Wm.I.Prewett Floyd M. Thomas Jr. JcsethHickey October 28, 1988 CarolCraftov Anthony Cathlezn V. Compton H.Y. Rowe-ofcounsix Jerri L. Agertos-paralegai Telecopier No. (501) 162.7228
HAND DELIVERED
John Lightfoot
Prosecuting Attorney's Office
Union County Courthouse
El Dorado, Arkansas 71730
Re: State of Arkansas v. Gary D. Tipton Union Circuit No. CR-88-9
John:
I have your letter of October 27 with the proposed Motion for Continuance.
John, I cannot join with you in this Motion at this time.
First, in my ongoing trial in Judge Harris' United States District Court, all parties are now contemplating that the matter will be submitted to the jury by Thursday, November 3. Of course, this might not happen. However, X would then be able to try this case on Friday, November 4, as presently scheduled.
Also, I have great problems with the week of Monday, November 14. I have rescheduled complex CPA discovery depositions for Tuesday and Wednesday, November 15 and 16, and it would be extremely difficult to reschedule these depositions again. Since we last talked, I have had depositions scheduled in a medical malpractice case, now scheduled for trial in Conway in December, for Thursday, November 17. Also, since we last talked, I have had a hearing set in the United States District Court for Friday, November 18.
I am not unmindful that it might very well be to the advantage of my client for Dr. Bennett Preston not to appear and testify.
Compton. Prewett, Thomas & Hickey, Pía.
Mr. John Lightfoot October 28, 1988 Page 2
Also, when we last talked, you indicated that the State might entertain a plea agreement other than the previous offer.
Taking all of the facts and circumstances of this case into consideration, and particularly because of the evidence that will be presented against my client (this type plea has a name arising from some particular case but I can’t remember it), Mr. Tipton would agree to enter a plea to manslaughter with a sentence of five years probation.
Due to the time element, I am causing this letter to be hand delivered and I believe that I will be out of Court early this afternoon in the event that you wish to talk further about this matter.
Take care.
RCC/kr
pc: Gary D. Tipton

       Counsel’s letter, which sets out the events and counsel’s communication with the deputy prosecutor is attached.

       The majority court dismisses this appeal without discussing the merits of the speedy trial issues. I differ with the court. I would resolve the arguments in the appeal but affirm the lower court based upon the reasons stated in my opinion.