text:
    Roy JENKINS and Lena Jenkins v. INTERNATIONAL PAPER COMPANY
    94-336
    887 S.W.2d 300
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994

      Willard Proctor, Jr., for appellants.

      Harrell & Lindsey, P.A., by: Searcy W. Harrell, Jr., for appellee.
   Robert L. Brown, Justice.

This is an appeal from a summary judgment order in favor of International Paper Company. Appellants Roy Jenkins and Lena Jenkins, his wife, maintain that their discovery was cut short by the order and that material facts were left to be determined about International Paper’s knowledge of the condition that caused Roy Jenkins’s injury. We agree with the trial court that summary judgment was appropriate, and we affirm its order.

The following facts appear to be undisputed. On Sunday, April 16, 1989, Roy Jenkins and L.E. Johnson were working for their employer, J. Graves Construction Company, at the International Paper plant in Camden. Their task was to load heavy bundles of transite which contained asbestos onto a truck to be transported from the plant. The transite had been removed from the “wood chip” building at the plant the previous week and stacked beside the building for loading. The bundles rested on visqueen and crushed rock known as chat in an area which had been cordoned off the week before by J. Graves Construction with orange flagging which read: “Danger Asbestos Material.” The flagged area was about twelve feet by twelve feet, according to Jenkins. Jenkins and Johnson wore protective clothing and rubber boots and had been working for four or five hours in the flagged area when Jenkins slipped and fell on the metal ramp leading up into the truck. At the time of the fall, Jenkins was walking backwards up the ramp with a bundle of transite. The reason for the fall, according to Jenkins and Johnson, was the presence of a substance they described as wet, greasy, and slippery which was on the transite bundles and generally on the ground in the flagged area. In loading the bundles, the substance got on their clothes and shoes. Jenkins described the substance as “nasty,” while Johnson said the substance was not water but was dark brown in color. Jenkins did not tell anyone in authority that day, at either International Paper or J. Graves Construction, about his injury but did tell his supervisor at J. Graves Construction the following day. He has not been able to work since the accident, and he filed a workers’ compensation claim.

Almost three years later on March 4, 1992, the Jenkinses filed suit against International Paper (1) for negligence in maintaining the premises; (2) for permitting an accumulation of a greasy substance to remain on the premises; and (3) for failure to warn Jenkins of the danger in the area in which he was working. Damages prayed for exceeded $5 million. On that same date the Jenkinses served International Paper with Interrogatories, a Request for Production of Documents, and a Request for Admissions. On April 3, 1992, International Paper responded to one request for admission as follows:

REQUEST FOR ADMISSION NO. 5: Because of the nature of Defendant’s business, greasy, oily and other slippery material may accumulate on the grounds outside of the buildings located on the premises.
ANSWER: Admitted.

International Paper also responded to one interrogatory with this answer:

INTERROGATORY NO. 27: What does the defendant contend to be the condition of the premises on the occasion in question. . . .
ANSWER: It was an open, outside area in good condition and in good visibility. It was not slippery. It may have been damp because water is used in this area to keep the wood chips cool.

On July 8, 1992, International Paper moved for summary judgment on the basis that there was no evidence that it knew about the slippery substance or that the substance was there as a result of the company’s negligence. International Paper further contended that whether or not it was negligent was irrelevant because Roy Jenkins knew about the slippery substance and was aware of the condition of the work area and the obvious danger. It attached to the motion the depositions it had taken of Roy Jenkins and L.E. Johnson. On October 1, 1992, International Paper filed a supplemental motion for summary judgment and attached affidavits from its own employees and from employees of J. Graves Construction. In the supplemental motion, International Paper added the argument that J. Graves Construction controlled the area where the fall occurred.

These factual points can be gleaned from the parties’ discovery. Jenkins and Johnson could not identify the slippery substance in their depositions and could not relate its origin or the length of time it had been present on the premises. Johnson stated that there were some International Paper employees around working on the day of the accident but that they were not supervising the two men or in the flagged area. The weather on the day of the accident was clear and hot.

Peck Bowman, an employee of J. Graves Construction, stated by affidavit that the chat was dry the week preceding the accident. Roy Moody, another employee of J. Graves Construction, stated in his affidavit that there was no dampness on the visqueen the week before and that the material was dry on the previous Friday.

Joel Haarala, the former senior design engineer for International Paper, stated by affidavit that he was never made aware of any wet, damp, or slippery substance in the flagged area and that the mill was closed during the week prior to the accident. Mike Green, the Area Process Manager for International Paper, averred that there was no slippery or greasy substance in the area flagged by J. Graves Construction the week before the accident. According to Green, International Paper employees stayed out of that area and J. Graves Construction had exclusive possession and control of the area behind the flagging material.

On February 19, 1993, a hearing was held on the motion for summary judgment. No decision was reached by the trial court at the hearing, but on March 15, 1993, the trial court wrote a letter to counsel for the parties to the effect that he believed summary judgment to be “premature” because discovery on several key points was not complete. The court stated that it was going to allow the Jenkinses additional time for discovery and added: “I would hope that any relevant facts obtained through the uncompleted discovery would be supplemented in support or opposition to the motion.” On June 15, 1993, the trial court wrote a status letter to the attorneys inquiring if discovery was complete. According to the trial court, counsel for the Jenkinses responded that he anticipated that discovery would be completed before the end of July.

On November 29, 1993, the trial court wrote counsel that it had understood that discovery would be finalized by the Jenkinses before the end of July 1993, and that the court had received no supplements to the record in opposition to International Paper’s motion. The court then entered an order of summary judgment on November 30, 1993. In its order, the court again noted that no additional discovery in opposition to the motion had been placed of record. The court further stated that no genuine issue of material fact existed and that the Jenkinses had presented no proof that International Paper knew about the slippery substance in the area where the fall occurred. The court added that the area containing the slippery substance was roped off by J. Graves Construction and that the truck where the accident occurred was either owned or rented by that firm. The Jenkinses moved to set the order aside due to the fact that discovery was not complete. They admitted in the motion that no depositions were scheduled and made no showing of what additional discovery might uncover. The trial court did not rule on the motion.

/. SUMMARY JUDGMENT

For their first point, the Jenkinses contend that summary judgment was premature in this case and truncated their right to develop the case through more discovery. We believe that the trial court was correct in determining that the circumstances of this case do not support that contention. On February 19, 1993, a hearing was held on International Paper’s summary judgment motion. No affidavits opposing the motion had been filed by the Jenkinses prior to the hearing pursuant to Ark. R. Civ. P. 56(c). Nevertheless, on March 15, 1993, the trial court declined to rule on the summary judgment motion until the Jenkinses completed additional discovery but asked to be kept apprised of developments and to have the record supplemented by the Jenkinses’ discovery. No supplements to the record were filed.

On June 15, 1993, the trial court asked for a status report and was assured that the Jenkinses’ discovery would be completed before the end of July 1993. Again, the record reflects that nothing was done in the way of discovery. Finally, on November 30, 1993 — more than nine months after the hearing on the summary judgment motion — the summary judgment order was entered. During this period the plaintiffs not only failed to pursue discovery, again according to the record, but they failed to move for additional time to complete discovery or to apprise the trial court of any impediments they were experiencing in the discovery process. Under these facts, we can only conclude that the Jenkinses failed to exercise suitable diligence.

On this point, we note that no affidavit was filed by the Jenkinses substantiating the fact that they were having problems gathering facts to support their opposition to summary judgment, as was their right under Ark. R. Civ. P. 56(f). Had they done so, the trial court might well have foregone a decision on summary judgment for an additional period of time pursuant to Rule 56(f) so that other discovery could be pursued. We alluded to Rule 56(f) in the context of a request for a continuance to prevent a summary judgment decision in Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). In Pinkston, the trial court denied a request to allow additional discovery and granted summary judgment. We noted that Rule 56(f) makes the decision on whether to grant a continuance a matter of discretion with the trial court. We then held that there was no abuse of discretion by the trial court in that case. We added that we were not convinced that additional discovery would have changed the outcome of the case.

In the wake of Pinkston v. Lovell, supra, we considered the question of whether a trial court could deny expanded discovery during a hiatus period in a trial. Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991). In Morris, trial had commenced two and one-half years after the complaint was filed. During a two-month break in the trial, a party filed requests for business documents going back 23 years. We stated that lack of diligence was a factor to consider in weighing the propriety of a continuance of the trial for the purpose of pursuing additional discovery. We repeated that in order to reverse a trial court which has denied a continuance, an appellant must show an abuse of discretion and also that additional discovery would have changed the outcome of the trial.

It is true that in the instant case the trial court did not provide the Jenkinses with a precise deadline for discovery. At the same time, the trial court was informed by their counsel that discovery would be completed before the end of July 1993. No additional information disabusing the court of this fact was filed or furnished to the court. The Jenkinses apparently did little as far as additional discovery between date of the hearing in February and the summary judgment order at the end of November. Months later no supplement to the record or affidavit under Ark. R. Civ. P. 56(f) had been filed by the Jenkinses.

This is a matter of discretion with the trial court, and we observe no abuse of that discretion under these facts. The summary judgment order was entered four and a half years after the accident, a year and eight months after the complaint was filed, and nine and a half months after the hearing on International Paper’s motion. While the passage of time is not determinative, it is a factor to be considered. We further note that no showing of how additional discovery would change the outcome of the case was made by the Jenkinses. In their motion to set aside the summary judgment order filed on December 14, 1993, the Jenkinses acknowledged that no deposition was presently scheduled and made an oblique reference to contacting “some of the individuals listed by the defendant.” That falls far short of showing how supplemental discovery would change the trial court’s decision.

II. OBVIOUS DANGER RULE

The Jenkinses next argue a negative — that the obvious danger rule should not apply to this case. Simply stated, that rule provides that any duty owed by an owner or occupier of land to a business invitee ends if the plaintiff knows of the danger. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990); Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974). The obvious danger rule, however, does not bar recovery when the invitee is forced, as a practical matter, to encounter that danger in order to perform his or her job. Carton v. Missouri Pac. R.R., supra; Kuykendall v. Newgent, supra.

In their distinguished treatise, Prosser and Keeton describe the circumstances under which an owner or occupier of land may continue to owe a duty of care to an invitee forced to work on the premises:

In any case where the occupier as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee’s attention will be distracted, as by goods on display, or that after a lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it. In some jurisdictions, it is also true where the condition is one, such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, when, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it.

Prosser and Keeton, The Law of Torts, § 61, p. 427 (1984). The exception clearly applies when the owner or occupier of the premises is aware of the dangerous condition. Otherwise, the obvious danger known to the invitee vitiates any duty owed to that invitee.

There is no question in the instant case that Roy Jenkins knew of the slippery substance on the premises. He admits it, and that admitted fact brings into play the obvious danger rule. There is also no doubt that he was forced, as a practical matter, to work under the slippery conditions. But did International Paper know about the slippery substance, and did J. Graves Construction solely control the area where the accident occurred? To be sure, International Paper admitted that on occasion due to the nature of the plant business slippery substances might accumulate in places on the plant grounds. Also, in an answer to interrogatories propounded by the Jenkinses, it stated that the area outside the “wood chip” building may have been damp due to efforts to keep the wood chips cool. But the admission and the answer to the interrogatory are not sufficiently definite or precise to take the matter outside the realm of speculation or to raise a genuine issue of material fact.

We agree with the trial court that there is no proof of record that International Paper knew about the slippery substance in this particular area. Indeed, a senior design engineer and area process manager for International Paper denied that they had any knowledge of it. In addition, the trial court found that the area was cordoned off with a warning of the asbestos hazard and that it was occupied and controlled by J. Graves Construction. This flagging had occurred during the week before the accident. The Jenkinses presented no proof to the contrary. Without proof of knowledge of the slippery condition on the part of International Paper and its control of the flagged area, there is no basis for liability under the exception to the obvious danger rule. In sum, the obvious danger rule negates any duty owed on the part of International Paper to Roy Jenkins.

The same conclusion is reached under a slip and fall analysis. Without some proof (1) that the presence of the slippery substance on the premises was the result of International Paper’s negligence, or (2) that International Paper knew or should have known of its presence due to the length of time it was there, there is no basis for slip and fall liability. House v. Wal-Mart Stores, Inc., 316 Ark. 221, 872 S.W.2d 52 (1994); Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). Again, the Jenkinses failed to supply any proof of negligence or knowledge on the part of International Paper.

We hold that the trial court correctly exercised its discretion in granting summary judgment.

Affirmed.

      The Jenkinses argue in their brief that they had been furnished the names of 200 International Paper employees in July 1993 who may have been working for the company as of the date of the accident and whom they were seeking to contact. Counsel for International Paper does not deny this in his brief, but this circumstance is not evidenced in the record. Hence, we will not consider it. It is the appellant’s duty to provide us with a sufficient record to show trial court error. Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992).


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Donald MILLER v. STATE of Arkansas
    CR 94-660
    887 S.W.2d 280
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994

      Randy Rainwater, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal stems from a judgment of conviction for five counts of raping a child less than fourteen years of age in violation of Ark. Code Ann. § 5-4-103 (Repl. 1993). The appellant, Donald Miller, was sentenced to twelve years on each count, to run consecutively, for total imprisonment of 60 years. Miller has three points on appeal: (1) there was insufficient evidence to support the conviction; (2) he was entitled to a directed verdict because the victim was an accomplice whose testimony was not corroborated; and (3) he was entitled to further psychological testing at the state hospital. We find no merit in the points raised, and we affirm the judgment of conviction.

During the summer of 1993, Miller, age 25, and his girlfriend, Wendy, acted as babysitters for the victim, then age 12, and her younger sister at Miller’s house. Miller lived a quarter of a mile from the victim who lived with her mother in the community of Pine Ridge. The victim testified that Miller had sexual intercourse with her at least five times during that summer. The first occurrence was a few days after July 4, 1993, at the victim’s home. She shared a bed with Miller, Wendy, and Miller’s two-year-old daughter. The victim’s mother was at home. While the others were asleep, Miller had sexual intercourse with the victim. The second time that Miller had sexual intercourse with the victim was two or three days after the first. The girl left Miller’s home to borrow a blender from her own home. He accompanied her to the house; then he threw her on a bed and had sexual intercourse with her.

The third time Miller had sexual intercourse with the victim was at his house about two or three days after the second offense. The fourth time was two or three days after the third offense, and the fifth time was three or four days after the fourth offense. The victim did not tell her mother, she later testified, because she was afraid of the consequences. She did relate to the jury that during July and August of 1993 before Miller’s arrest they engaged in sexual intercourse “about every day.”

During part of the time period that Miller was having sex with the victim, he was also having sexual relations with the victim’s mother. The victim admitted that she was upset about her mother’s affair with Miller because at that time she loved Miller. The mother testified at trial that she was not aware of Miller’s activities with her daughter prior to his arrest. She stated that she confronted Miller after he was incarcerated for the rape charges, and he acknowledged that he had done it but believed the victim to be 18 years of age.

Miller argues on appeal that the above evidence was insufficient to support his conviction for five counts of rape. The test for determining whether there is sufficient evidence is whether there is substantia] evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993); Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Substantial evidence is evidence that is of enough force and character to compel reasonable minds to reach a conclusion without resorting to suspicion and conjecture. Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (July 5, 1994); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993) . To determine whether substantial evidence exists, this court reviews only the evidence that supports the conviction and does not weigh that evidence against conflicting proof favorable to the accused. Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994) ; Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992).

In pertinent part, Ark. Code Ann. § 5-14-103 (Repl. 1993) defines the crime of rape as follows:

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(3) Who is less than fourteen (14) years of age.

Miller argues that the evidence was insufficient to prove rape for two reasons. First, he contends that the victim’s testimony was inconsistent as to when and how often he had sex with her. This argument is without merit because this court has held that lack of specificity with regard to the date of a rape does not require a reversal, especially when the victim is a child. Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992). Furthermore, it is the jury’s duty to determine the credibility of the witnesses and to resolve any inconsistencies. Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987). The girl testified that Miller had sexual intercourse with her on at least five occasions, and that testimony, standing alone, constitutes substantial evidence to support the conviction. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994); Franklin v. State, 308 Ark. 539, 825 S.W.2d 263 (1992).

The second reason that Miller maintains there was insufficient evidence to support the conviction is that the girl was angry with him because he had had an affair with her mother. This gave her a motive to prevaricate, according to Miller. Again, the jury is free to decide the credibility of witnesses, and obviously, the jury chose to believe the victim. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987).

Miller’s next point for reversal is that the trial court should have granted his motion for directed verdict because the girl’s testimony was the uncorroborated testimony of an accomplice. He argues that the victim was an accomplice because she willingly consented to sexual relations with him. This argument is totally without merit. A victim of a crime is not an accomplice under Arkansas law unless the criminal statute specifically provides to the contrary. Ark. Code Ann. § 5-2-404 (Repl. 1993). But, in addition, to hold that a twelve-year-old victim of rape is an accomplice would eviscerate the legislative purpose behind making it a crime to engage in sexual intercourse with a person less than fourteen years of age. See Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991); see also Commentary to Ark. Stat. Ann. § 41-305 (Repl. 1977), now codified as Ark. Code Ann. § 5-2-404 (Repl. 1993). Our public policy, as fixed by the General Assembly, is manifest that victims younger than age 14 are beneath the age of consent and cannot be willing accomplices to sexual intercourse.

Finally, Miller argues that the trial court erred in denying his request for further testing at the state hospital. Dr. Jerry Henderson, a psychologist, conducted the first psychological examination of Miller and determined that he was not substantially impaired in his mental capacity at the time of the rape and that he did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. He also found Miller competent to stand trial. Dr. Henderson noted that his findings were consistent with alcohol abuse, cannabis abuse, borderline intellectual functioning, and schizoid personality traits.

Miller argues that the trial court erred in refusing further psychological examination because Dr. Henderson’s examination report did not describe the nature of the examination as required by Ark. Code Ann. § 5-2-305(d)(l) (1993). However, as the State points out, Miller did not move the trial court to order further examination on the ground that Dr. Henderson’s examination report did not comply with the statute. Rather, the basis for Miller’s motion at the pretrial hearing was that he disagreed with Dr. Henderson’s findings that he was able to continue in his defense and to stand trial and that his mental incompetency was evidenced by his threats of suicide while in jail. It is axiomatic that a party cannot change the grounds for an objection on appeal. Hewitt v. State, 317 Ark. 362, 877 S.W.2d 926 (1994); Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988); Vasquez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (1986). Thus, we will not address the issue of whether Dr. Henderson’s report complied with § 5-2-305(d)(l).

Miller’s second reason for contending that the trial court erred in denying further evaluation is that he was simply not competent to stand trial and aid in his defense. Although his argument is somewhat obtuse, he suggests that the diagnosis of borderline intellectual functioning and schizoid personality traits warranted further psychological evaluation.

In Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990), this court addressed the question of whether a defendant was entitled to further examination when a psychiatrist had already determined that he was able to understand the proceedings against him and to assist in his defense. In Walker, the defendant’s basis for challenging the report was that he had been unsuccessful in obtaining medical records from the U.S. Army, which had diagnosed him as a paranoid schizophrenic, and that he had been under a psychiatrist’s care for ten years. We held that although a trial court may order further examination pursuant to Ark. Code Ann. § 5-2-305(c), the trial court was correct in deciding that it was not clearly warranted in that case.

In the case at bar, Miller’s only grounds for challenging the report is that the diagnosis is serious. That factor is patently insufficient for us to reverse the trial court. We hold that the trial court did not err in refusing to order further evaluation.

Affirmed.


author: Comer Boyett, Jr., Special Justice.

text:
    CITY OF LITTLE ROCK, Arkansas, and its Board of Directors, Jim Dailey, Dr. Hamp Roy, Jesse Mason, Jr., Jeff Sharp, Joan Adcock, John Lewellen and Sharon Priest v. Eugene M. PFEIFER, III; Steven H. Scott; Carol Diane Brown; James Moore Brown, Jr.; Robert Johnston; FCC Tract A Partnership; FCC Tract D Partnership; Heights Neighborhood Association; Mark Dane Hartness; James R. Lynch; Weaver Leon Majors, III; Stewart B. McGehee; Evelyn Thomas; Bart Tomerlin; and Leisure Arts
    93-786
    887 S.W.2d 296
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994
    [Rehearing denied December 19, 1994.]

      Thomas M. Carpenter, City Att’y, by: Susan H. Oswalt, Cynthia Dawson, and Stephen R. Giles, for appellants.

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Christopher O. Parker, for appellees.

      Special Chief Justice Eugene T. Kelley and Special Justices Don A. Smith and Comer Boyett, Jr., join. Holt, C.J., and Newbem and Glaze, JJ., not participating.

   Comer Boyett, Jr., Special Justice.

This appeal challenges the Chancellor’s finding that the Board of Directors of Little Rock, Arkansas was arbitrary, capricious and unreasonable in passing Municipal Ordinance No. 16337. This ordinance basically rezoned 17.7 acres of land on Highway 10 in Little Rock from R-2 to a Planned Commercial District and legislated that the National Home Center Project was a proper subject for a Planned Commercial Development.

All parties agreed there were no genuine issues of material facts and the case was submitted to the Chancellor on summary judgment motions which included pleadings, testimony by affidavit, deposition and other discovery methods and exhibits. The Chancellor voided the ordinance and permanently enjoined the City from issuing a building permit and the City has appealed.

The General Assembly provided cities with the power to adopt plans for property usage within its boundaries as set out in Ark. Code Ann. §§ 14-56-401 to -425 (1987 & Supp. 1993) which include the adoption and filing of a land use plan and zoning ordinances consisting of a map and text for the entire city which will carry out or protect the various elements of the plan.

Pursuant to the legislative authority granted it, the City of Little Rock did adopt a land use plan and zoning ordinances for the City including the Highway 10 area west of 1-40 which includes the subject property. Included in the adoption of the zoning code of ordinances was a designation of Planned Unit Development, Municipal Code Section 36-451 et seq. Professor Robert Wright, author of Zoning Law in Arkansas: A Comparative Analysis, opined that:

[t]he Planned Unit Development, or PUD, is authorized by ordinance in Little Rock .... As mentioned, the potential scope of a PUD is greater than that of a cluster development. Clustering still takes place in the sense that the population density within the area is intended to remain about the same as if setback and similar requirements were met. On the other hand, there is a greater mix of uses. The idea is that these varying uses will be blended so as to create an aesthetically pleasing, interrelating unit which is advantageous in terms of property values.

A Planned Commercial District or PCD is one of four kinds of Planned Unit Developments or PUDs.

In Municipal Code Section 36-452(3), the City stated the purpose and intent of the PCD planned commercial/mixed use district as follows:

a. Purpose and intent. The PCD district is intended to accommodate shopping centers and commercial/office park developments, and mixed use developments combining residential, commercial and office uses in a carefully planned configuration in such a manner as to protect and enhance the viability of each independent use. The legislative purpose, intent and application of commercial planned development are as follows:
1. To encourage the clustering of commercial and office activities within areas specifically designed to accommodate the uses and to discourage the proliferation of commercial uses along major thoroughfares and noncommercial areas.
2. To provide for the orderly development of commercial and office activities in order to minimize adverse impact on surrounding areas and on the general flow of traffic.
3. To encourage orderly and systematic commercial/office and mixed use development design providing for the rational placement of activities, vehicular and pedestrian circulation, access and egress, loading, landscaping and buffer strips.
4. To encourage commercial development which is consistent with the long-range comprehensive plan for the city.
5. To facilitate residential development in a multi-use configuration incorporating commercial and office uses.
6. To accommodate large-scale suburban developments combining commercial office and residential uses in a harmonious relationship.

Municipal Code Section 36-452(3)(b) lists as permitted uses in the PCD:

1. Retail commercial uses.
2. Public and institutional uses.
3. Office uses.
4. Light industrial uses, provided that gross area per use generally does not exceed five thousand (5,000) square feet and that at least fifty (50) percent of the floor area is used for retail sales.
5. Substantial residential uses appropriate to the scope and character of the development.

Of course the City has the right to change usages and amend the plan. As an example, Municipal Ordinance No. 15765 passed October 17, 1989, introduced a design overlay district for the Highway 10 land use plan, i.e. this was supplemental to the land use plan and basically dealt with the concept of “protection of the scenic quality of the Highway”, “substantial building setbacks”, “extensive landscaping and uniform tree plantings”, and other esoteric values; nor does a city have to create a zoning ordinance or a land use plan or adopt planned use districts or planned commercial districts, but once it has done so it must follow the ordinance until it is repealed or altered. City of Fordyce v. Vaughn, 300 Ark. 554, 560, 781 S.W.2d 6, 9-10 (1989); Potocki v. City of Fort Smith, 279 Ark. 19, 22, 648 S.W.2d 462, 464 (1983).

What the questionable ordinance does is rezone the tract in question from R-2 to a PCD and declare that the National Home Center constitutes a project within the concepts of a PCD. The City did not repeal or amend the concept of a PCD as set out in its ordinance, i.e. the definitional requirements of a PCD are left in place. The project must comply with the uses, intent and purposes of the ordinance which defines PCD.

The undisputed facts are that the 17.7 acre tract was zoned R-2. The project to be built on the tract is a large National Home Center which provides materials and supplies for construction. The store would be 1,100 feet long and would be used partially for wholesale operations to contractors and the remainder would be for retail operations. The main building would comprise 100,200 square feet of customer showroom, the contractor sales showroom would be 10,000 square feet, the warehouse would be 50,000 square feet; there would be 30,000 square feet of lawn and garden facilities and it would have vehicle maintenance facilities with a fuel station. The exterior of the building along Highway 10 frontage would be a concrete wall and the other three walls would be a textured steel. The height of all the buildings is 24 feet with a metal roof of 12 and 2 pitch. No existing landscaping or terrain could be used on the site. The 17.7 acre tract amounts to 270,000 square feet of land. The main building would be on a 10 foot fill and the finished floor elevation of the retail sales area facing Highway 10 would be some 15 feet above the curb line on Highway 10 making the building facade about 40 feet in height above that point. The project would not be screened by any proposed landscaping for 15-20 years. There would be only one ownership of the facility.

This case is unique in a couple of senses. First of all, the parties have agreed that there was no genuine issue as to any material fact. Normally on a summary judgment appeal the evidence is viewed most favorably for the party resisting the motion and any doubts and inferences resolved against the moving party. In a case where there is agreement by the parties that there is no genuine issue of any material fact that rule is inapplicable and we simply determine whether the appellees were entitled to judgment as a matter of law. See Daniels v. Riley’s Health & Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992).

While Chancery cases are reviewed de novo on appeal, Garot v. Hopkins & Coates, 266 Ark. 243, 583 S.W.2d 54 (1979), the Chancellor in a zoning case is limited solely to whether or not the city acted arbitrarily, capriciously or unreasonably. The reason is that such zoning decisions of the city are legislative in nature and the courts have long ruled that judicial intrusion upon this legislative prerogative violates the constitutional requirement of separation of powers. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981); Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971).

So the Chancellor’s decision that the City acted arbitrarily, capriciously and unreasonably must be examined by this court for error, taking into consideration there is a presumption that the Board of Directors acted in a reasonable manner whether they either zoned or refused to zone property. Breeding, supra. Arbitrary has been defined as “decisive but unreasoned action,” and capricious has been defined as “not guided by steady judgment or purpose.” W.C. McMinn Co., Inc. v. City of Little Rock, 257 Ark. 442, 448, 516 S.W.2d 584, 587 (1974) (citing City of North Little Rock v. Habrle, 239 Ark. 1007, 395 S.W.2d 751 (1965)).

There was opinion evidence given as to whether or not under the facts this project was proper for a PCD. Various witnesses testified and perhaps the most impressive witness was Jim Lawson, an employee of the City in the Planning Commission office. Mr. Lawson who is very knowledgeable in the field of zoning and the effect of zoning ordinances testified by deposition that the National Home Center Project would not encourage the clustering of commercial and office activities within the area rezoned and that it would encourage a proliferation of strip commercial along Highway 10. In fact Mr. Lawson testified that he was concerned that if the National Home Center went in the area it would encourage a commercial development that was inconsistent with the Highway 10 land use plan, that it would discourage residential areas from being developed along Highway 10, and that it would lead toward a total strip commercial area and in fact cause a collapse of the entire Highway 10 plan intent. Several land owners in the immediate vicinity testified that they had no objections to the project being constructed and hoped their land would be rezoned also and other land owners in the vicinity gave evidence that they objected to the proposed project as being out of sync with the intent of the zoning and land use plan of the City.

There were four uses for a PCD three of which obviously are inapplicable to this case, i.e. (1) public institutional uses (2) office uses (3) industrial uses (gross area exceeds 5,000 square feet). This leaves only the retail commercial use. There was strong evidence that a portion of the project of the National Home Center’s business would be wholesale rather than retail use.

Plaintiffs’ evidence also addressed itself to whether the project was in keeping with the purpose and intent of a PCD. The PCD district is definitionally intended to accommodate shopping centers and commercial/office park development and other mixed use developments combining residential, commercial and office uses in a carefully planned configuration in such a manner as to protect and enhance the viability of each independent use. This is not a commercial/office park development; there are no mixed developments combining residential and commercial office uses and this is not a shopping center. At page 2292 of the Little Rock Code, a shopping center was defined as a group of unified commercial establishments built on a site which is planned, developed, owned and managed as an operating unit related in its location, size and types of shops to the trade area that the unit serves. It is obvious that the Chancellor felt that this required multiple businesses and multiple ownerships in order to be a shopping center. The finding of the Chancellor under the agreed upon facts that the project did not meet the definitional requirement of a PCD is not clearly erroneous. Consequently, we cannot say the Chancellor erred in determining the appellees were entitled to judgment as a matter of law.

Appellees have cross-appealed claiming the right to an attorney fee under the 1993 Civil Rights Act passed by the General Assembly. We find no ruling by the lower court on this issue. In any event, the municipal ordinance was passed in January 1993 and the Civil Rights Act did not go into effect until August of 1993.

Affirmed on direct appeal; affirmed on cross-appeal.

Special Chief Justice Eugene T. Kelley and Special Associate Justice Don A. Smith concur.

Holt, C.J., and Newbern and Glaze, JJ., not participating.


author: Per Curiam.

text:
    James A. DUTY v. STATE of Arkansas
    CR 94-1153
    886 S.W.2d 875
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994

      Robert C. Harder, for appellant.
    No response.
   Per Curiam.

Appellant, James A. Duty, by his attorney, Robert C. Harder, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

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

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964; Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


text:
    Larry FRANKLIN v. STATE of Arkansas
    CR 94-1002
    886 S.W.2d 633
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994

      Louis A. Etoch, for appellant.
    No response.
   Per Curiam.

The appellant, Larry Franklin, has filed a motion for rule on the clerk. His attorney, Louis Etoch, admits that the record was tendered late due to a mistake on his part. We find that such admission of fault by an attorney in a criminal case is good cause to grant the motion. See Tarry v. State, 288 Ark. 172, 702 S.W.2d 904 (1986).

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


text:
    Tyree JONES v. Ms. McCOOL, Records Supervisor, and Charlotte Sumner, Records Supervisor Arkansas Department of Correction
    94-353
    886 S.W.2d 633
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Tyree Jones, who is in the custody of the Arkansas Department of Correction by virtue of multiple felony convictions, filed a pro se petition for writ of mandamus and declaratory judgment against two persons employed in the Records Office of the Department. The circuit court denied the petition, and appellant brings this appeal.

The appellant has failed to include an abstract of any part of the record in the appellant’s brief. Our Rule 4-2 (b)(2) provides that a judgment may be affirmed for noncompliance with Rule 4-2 (a)(6) which requires the appellant to abstract that part of the record which is material to the points argued in the appellant’s brief. The failure to abstract a critical document precludes this court from considering issues concerning it. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). The abstracting requirement applies to those appellants who proceed pro se. Markham v. State, 303 Ark. 438, 798 S.W.2d 58 (1990). Nearly a month after the appellee state filed its brief, appellant filed a motion seeking to amend the brief to include an abstract. The motion is denied. Once the appellee has filed its brief, it is too late to file a motion to amend the appellant’s brief. As the abstract in this case is totally deficient, we affirm.

Affirmed.


author: Jack Holt, Jr., Chief Justice.

text:
    Jesse Lee GOINS and Arthur Dean Davis, Jr. v. STATE of Arkansas
    CR 94-678
    890 S.W.2d 602
    Supreme Court of Arkansas
    Substituted opinion delivered January 17, 1995

      Donald H. Smith, for appellant Goins.

      Robert N. Jeffrey, for appellant Davis.

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

      Reporter’s Note: This opinion was originally delivered November 21, 1994.

   Jack Holt, Jr., Chief Justice.

The appellants, Jesse Lee Goins and Arthur Dean Davis, Jr., raise six and four points, respectively, for reversal of their convictions on charges of aggravated robbery, for which they were both sentenced to terms of life imprisonment. Three of the arguments are overlapping. None has merit, and we affirm the judgments.

Due to the number of points on appeal, we set forth the various issues as framed by Goins and Davis, noting those arguments that overlap:

I. (Goins) and II. (Davis) Whether the trial court erred in denying the appellants’ motion for a continuance.
II. (Goins) Whether the trial court erred in denying appellant Goins’s motion to sever the defendants.
III. (Goins) and I. (Davis) Whether the trial court erred in denying the appellants’ motion to suppress the photo identification of Goins and Davis.
IV. (Goins) and III. (Davis) Whether the trial court erred in denying the appellants’ motion to strike the jury panel.
IV. (Davis) Whether the trial court erred in denying appellant Davis’s motion for a mistrial following a courtroom disturbance involving appellant Goins.
V. (Goins) Whether the trial court erred in overruling appellant Goins’s objection to a remark made by the Deputy Prosecutor during closing argument.
VI. (Goins) Whether the trial court erred in denying appellant Goins’s motion for a directed verdict.

Facts

In the morning of January 20, 1994, Melissa Price, the co-owner and manager of the Prattsville One-Stop, a convenience store in Prattsville, Grant County, Arkansas, was accosted by two men who had entered the store while she was in the back doing paper work. One of the men, whom she later identified as Lamar Boris Davis, pointed a small handgun at her while the other, whom she subsequently identified as his brother, appellant Arthur Dean Davis, Jr., put a large lock-blade knife to her throat and said, “We need your money.” Pressing the knife at her throat, the man identified as appellant Davis told Ms. Price not to look at him and to open the cash register. Meanwhile, the man identified as Lamar Davis continued to point his gun and her and warned her “to quit looking at him.”

After Ms. Price opened the cash register, the two men took cash from it, along with a bank bag containing the day’s deposit. Then, they ordered Ms. Price to lie on the floor, where they attempted to tape her arms to her body. The two men had succeeded in taping one arm when they heard a car pulling up to the gas pumps outside. At that point, they ran to a waiting vehicle driven by a third person, appellant Jesse Lee Goins. Ms. Price was able to see the “large, blue, four-door car” clearly and to obtain its license-plate number, and Barry Cooper, the customer who had just arrived, saw appellant Davis and another man run out of the store to an “[o]ld, blue car.”

Acting on the information supplied by Ms. Price, Dallas County Sheriff Donny Ford and other law enforcement officers stopped the vehicle near Fordyce and placed Jesse Goins, Arthur Davis, and Lamar Davis under arrest. The vehicle in question and the license-plate number matched the descriptions reported to Grant County authorities by Ms. Price. During a search of the vehicle, Sheriff Ford discovered a stainless-steel handgun in the back seat, a lock-blade knife in the glove compartment, and money on the floorboard.

The three men were charged with aggravated robbery, in violation of Ark. Code Ann. § 5-12-103 (Repl. 1993). Lamar Davis was tried separately, and his conviction .was recently affirmed by this court. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). Appellants Jesse Goins and Arthur Davis were tried as co-defendants before a jury in the Grant County Circuit Court on March 17, 1994. They were both found guilty and were sentenced individually to life imprisonment. From that judgment, this appeal arises.

Directed verdict

Goins, in his Point VI, contends that the trial court erred in denying his motion for a directed verdict. A directed verdict motion is a challenge to the sufficiency of the evidence. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). As such, it must be addressed by this court before any other points on appeal. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994).

After the State rested in the present case, counsel for Goins moved “for a directed verdict of acquittal on behalf of Jesse Goins, insufficient evidence to send to the jury.” Subsequently, after the close of all the evidence, counsel for Goins stated that “[w]e rest on behalf of Jesse Goins, and ask for a directed verdict.” In both instances, Goins failed to preserve his challenge to the sufficiency of the evidence by neglecting to apprise the trial court of the specific basis on which each motion was made. See Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).

We recently reaffirmed our position, in Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994), and Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), that a general reference to “insufficient evidence” does not meet the demands of Ark. R. Crim. P. 36.21(b). Such a general motion constitutes a waiver of the right to challenge the sufficiency of the evidence. Daffron v. State, supra. Directed verdict motions must state specific grounds. Middleton v. State, supra. The sufficiency issue having been waived, its merits need not be addressed. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991).

Motion for continuance

Goins, in his Point I, and Davis, in his Point II, argue that the trial court erred in denying their respective motions for a continuance. The motions were made in chambers before jury selection began. Both appellants assert on appeal that a continuance was necessary because of the unavailability, due to surgery, of an alibi witness. However, Davis’s attorney did not specifically join Goins’s attorney in making a motion for a continuance on that basis. But, prior to trial, Davis independently sought a continuance on the basis that his attorney, Robert Jeffrey, did not represent him until four days before the trial began and that he therefore did not have adequate time for preparation.

In order to obtain a continuance, the appellant must make a showing of good cause. Davis v. State, supra. A motion for a continuance is addressed to the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). The defendant has the burden of proof in demonstrating the abuse of discretion. Jones v. State, 317 Ark. 131, 876 S.W.2d 262 (1994). That burden entails a showing of prejudice. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993).

Goins’s attorney stated that Billy Johnson, a prospective alibi witness, could place Goins “in Camden or near Fordyce and Camden” at the time the robbery occurred. Davis’s attorney, as noted above, did not specifically join in the motion on that ground, and we therefore need only address the unavailability issue as it pertains to Goins.

Goins showed no diligence in attempting to secure the presence of the witness but instead made his motion for continuance immediately before trial. Moreover, he made no proffer of the prospective witness’s testimony. Instead, counsel for Goins offered the following explanation:

... I got over here to talk to Mr. Goins on Wednesday, and at that time I discovered the name of a witness that would be an alibi witness that would place him in Camden or near Fordyce and Camden at the time that this alleged crime took place. He was supposed to be here according to other witnesses, but I am advised he entered the hospital yesterday and is unable to attend Court.
I am trying to obtain information on what he is doing in the hospital and whether it is a legitimate thing, but he is supposed to be here, but he can’t be here because he is in the hospital. Billy Johnson.

This vague statement, in which Goins’s attorney seemed unclear as to the substance of the prospective witness’s testimony, was no substitute for a proffer. Under the circumstances, Goins has failed to show how the trial court abused its discretion in denying Goins’s motion for a continuance. See Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990).

With respect to Davis’s claim that the trial court should have granted a continuance because his attorney lacked adequate time to prepare for trial, it is apparent that, contrary to Davis’s assertion that Mr. Jeffrey had a mere four days for trial preparation, the attorney had been involved in the matter for nearly two months prior to trial and was familiar with the case. Mr. Jeffrey represented all three co-defendants at a bond hearing on January 24, 1994, and spoke with Davis about the case at that time. He admittedly received all discovery in the case. Subsequently, though, another attorney, Norman Mark Klappenbach, was brought in to represent Davis, and Goins retained his own counsel.

When a motion for a continuance is based on a lack of time to prepare, this court will consider the totality of the circumstances. Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990). Only on March 13, 1994, four days before the March 17, 1994 trial date, did the circuit court actually appoint Mr. Jeffrey to represent Arthur Davis. Yet he was not, by virtue of this late appointment, cast into a legal void. He had represented all of the co-defendants less than two months earlier and had conferred with Davis about the case. As in Davis v. State, supra, the attorney argued primarily in general terms that he lacked adequate time in which to prepare for trial, pointing specifically only to his late formal appointment. Yet, unlike the situation in Davis, where the only specific complaint was that the attorney did not receive discovery materials until ten days before the trial, here Mr. Jeffrey acknowledged having received discovery in advance. In sum, Davis is unable to show what the attorney failed to do that could have been done, or what he did that he would not have done, had he been afforded more time. Davis v. State, supra; Brandon v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). The trial court did not abuse its discretion in denying Davis’s motion for a continuance.

Motion to sever

In his Point II, Goins urges that the trial court erred in denying his motion to sever his case from that of Davis. Goins’s attorney filed a motion to sever on the basis of conflicting positions with respect to Goins and Davis, and the trial court denied the motion after having been advised by the State that a statement given to the police by one of the defendants did not implicate the other. Goins later failed to renew the motion.

Under Ark. R. Crim.P. 22.1(b):

(b) If a defendant’s pretrial motion for severance was overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion.

(Emphasis added.) In Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994), this court held that an attorney’s statement that “I renew all motions, including motion for directed verdict” was insufficient to preserve the issue of severance for appeal.

Similarly, here, counsel for Goins, as noted earlier, simply declared, “We rest on behalf of Jesse Goins, and ask for a directed verdict.” The severance issue is thus not preserved for appellate review.

Photo identification

Goins, in his Point III, and Davis, in his Point I, contend that the trial court erred in denying their motions to suppress the pretrial photographic-lineup identifications on the ground that the procedure was unduly suggestive. They assert that the lineup was prejudicially suggestive in that (1) three of the six photographs were of the three suspects in the present case and that the positions of the photographs in the lineup were never rearranged; (2) the non-suspects were “substantially older” (i.e., as much as ten years) than the suspects.

This court has held, in connection with photographic lineups, that if there are suggestive elements in the pretrial identification procedure making it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Nevertheless, it is for the trial court to determine whether there are sufficient indicia of reliability surrounding the identification to permit its use as evidence, and it is then for the jury to decide what weight the identification testimony should be given. Hunter v. State, 316 Ark. 746, 875 S.W.2d 63 (1994).

Even if the identification procedure is unnecessarily suggestive, testimony concerning it is admissible if the identification is reliable. Chism v. State, supra. When a photographic identification is followed by an eyewitness identification at trial, the conviction will be set aside only if the photographic lineup was so suggestive as to create a substantial possibility of misidentification. Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993).

Although Goins and Davis challenge the pretrial photographic identification, neither of the appellants disputes the in-court identification of them by the victim, Melissa Price. Neither Goins nor Davis objected at trial on the basis that Ms. Price’s in-court identification of them was unreliable or tainted by the pretrial photographic lineup. Consequently, the issue is not preserved for appeal. Jackson v. State, 318 Ark. 39, 883 S.W.2d 466 (1994).

Further, neither Goins nor Davis has abstracted the photographic lineup itself, thus rendering the questions relating to photo placement and age disparity unreviewable. The failure to abstract a critical document precludes this court from addressing issues concerning it on appeal. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).

In addition to their claims that the photographic lineup was unduly suggestive, Goins and Davis also argue that the pretrial identification should have been suppressed because counsel was not present at the time the photographs were shown to Ms. Price and Barry Cooper, who saw the men leave the convenience store after the robbery. Yet neither Goins nor Davis raised this issue below. Hence, the question cannot be considered now. Even constitutional issues may not be raised for the first time on appeal. Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992).

Appellant Davis independently advances the argument, presented at trial, that the publication of his photograph in the Sheridan Headlight, a local newspaper, one day before the photographic lineup warranted the suppression of the pretrial identification. Nothing in the record, however, suggests that either Ms. Price or Mr. Cooper saw that edition of the newspaper or that Davis pursued the subject in cross-examination.

Motion to strike jury'panel

In their Points IV and III, respectively, Goins and Davis assert that the trial court erred in denying their motions to strike the entire jury panel. At a pretrial hearing, counsel for both appellants moved to strike the jury panel because some members had sat through voir dire in the separate trial of co-defendant Lamar Boris Davis. As a result, they insist, the entire jury panel was tainted.

Under Ark. Code Ann. § 16-33-304(b)(2)(B)(iv) (Repl. 1994), a challenge for implied bias may be taken in the case of a juror who has “served on a jury trial which has tried another person for the offense charged in the indictment.” The plain language of that statutory provision grants criminal defendants the right to exclude all jurors who served in the trials of co-defendants. McClendon v. State, 316 Ark. 688, 875 S.W.2d 55 (1994). Thus far, however, that right has not been extended to exclude potential jurors who have not actually served as jurors in a prior trial involving the same offense. Id.

In the present case, it is undisputed that all of the jurors who either sat in the earlier trial or were stricken by either party were excluded from the venire. The trial court, while refusing to strike the panel, allowed Goins and Davis to explore the possibility of tainting during voir dire. At no point did either Goins or Davis object to an individual juror on the basis of his or her presence during voir dire in the co-defendant’s case or during the trial itself. Nor has either Goins or Davis identified on appeal a juror who should not have been seated.

Persons comprising the venire are presumed to be unbiased and qualified to serve. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993). The burden is on the contestant to prove otherwise, and this court will not disturb a trial court’s ruling in refusing to strike venirepersons absent an abuse of discretion. Id. Under the circumstances, it cannot be said that the trial court abused its discretion in refusing to strike the entire jury panel.

Motion for mistrial

Davis contends, in his Point IV, that the trial court erred in denying his motion for a mistrial in the wake of a disturbance caused by his co-defendant Goins. A mistrial is a drastic remedy and proper only when the error is beyond repair and cannot be corrected by any curative relief. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The trial court has wide discretion in this area, and this court will not reverse a denial of a mistrial absent an abuse of discretion or manifest prejudice to the complaining party. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994).

After the jury returned with its guilty verdicts and while the trial court was delivering instructions on sentencing, Goins disrupted the proceedings and was restrained by several law enforcement officers. Davis did not participate in the incident. The trial court denied Davis’s motion for a mistrial but offered to deliver an instruction admonishing the jury not to hold Goins’s actions against Davis. Counsel requested that the instruction be prepared and given.

Subsequently, the court cautioned the jury as follows:

Mr. Goins, at his own request, has been allowed to leave the courtroom. You were instructed earlier that Mr. Goins and Mr. Davis are to be treated as separate defendants.
You should not in any manner consider the outburst or activities of Mr. Goins in considering your sentence for Mr. Davis. You must keep them separate and not count against Mr. Davis anything that arose from Mr. Goins’[s] actions.

The trial court then completed giving the sentencing-phase instructions.

On appeal, Davis argues that he was prejudiced in the extreme by the denial of the mistrial because the jury was free to impute the actions of Goins to himself. Yet the cautionary instruction clearly obviated that possibility. As this court has held, a cautionary instruction to the jury can make harmless any prejudice that might occur. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). Moreover, Davis received the alternative relief that he requested from the trial court. See Cupples v. State, supra. The trial court did not abuse its discretion in refusing to declare a mistrial.

Remark during closing argument

Finally, Goins urges, in his Point V, that the trial court erred in overruling his objection to a remark made by the deputy prosecutor during closing argument. During the State’s closing argument, the deputy prosecutor remarked: “Melissa Price said that the defendant Goins was in that store some three to four weeks before. I submit to you, ladies and gentlemen, he was in there casing that place for subsequent robbery.” Counsel for Goins objected on the ground that “[t]here was no evidence of that.” The trial court overruled, stating that the deputy prosecutor was “summarizing what the belief of the State is.”

As Goins acknowledges, a trial court has wide discretion in controlling, supervising, and determining the propriety of counsel’s arguments, and this court will not reverse absent a showing of manifest abuse. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Hoover v. State, 262 Ark. 856, 562 S.W.2d 55 (1978). Some leeway must be extended in closing arguments, and counsel may argue every plausible inference that can be drawn from the evidence. Brown, supra; Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981).

Here, the deputy prosecutor was referring to testimony by Ms. Price that, “a couple of weeks before the robbery,” Goins came in her store and asked for a cup of water. She stated that “[h]e stood there a minute and drank his water right in front of the cash register by me, and then he went and bought a honey bun and left.” Ms. Price did not see Goins again, but he was driving the vehicle when he and the Davis brothers were stopped by police on the date of the robbery. The State sufficiently proved Goins’s presence at the robbery site by circumstantial evidence. See Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Given that evidence, the deputy prosecutor’s inference that Goins’s purpose in going to the store prior to the robbery was to survey the site while planning the crime was not implausible. The observation constituted fair comment on the part of the deputy prosecutor. It cannot be said that the trial court manifestly abused its wide discretion in overruling Goins’s objection.

Both appellants having received life sentences, the record has been examined for any other adverse rulings that might constitute reversible error. See Ark. Sup. Ct. R. 4-3(h). None appear.

Affirmed.