text:
    Frances M. WATSON v. STATE of Arkansas
    CR 91-247
    825 S.W.2d 569
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      McCullough Law Firm, by: R.S. McCullough, for appellant.

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

The appellant, Francis M. Watson, appeals from a conviction for first-degree battery which resulted in a sentence of fourteen years. The conviction stemmed from charges brought against the appellant for acts committed against Daniel Toric, age six, who was living with her at the time that his leg was severely burned. The leg was subsequently amputated below the knee. The appellant now appeals on three grounds: a) the circuit court failed to instruct the jury on lesser included offenses; b) the circuit court erred in forcing the defense counsel to make his Batson objection in front of the jury; and c) the circuit court erred in permitting hearsay testimony of a social worker.

We hold that there is merit to the appellant’s second point, and we reverse and remand for a new trial.

Daniel Toric is the son of Shirley Toric, but was living with the appellant during the period of time in question. There was no formal arrangement such as an adoption or guardianship between the appellant and Daniel. Five other children and two grandchildren also lived with the appellant, who made ends meet with public assistance and food stamps.

On September 10, 1990, Daniel suffered severe burns to his left leg. The appellant and one of her daughters drove Daniel to the hospital emergency room, where he was diagnosed as having third-degree burns and a life-threatening condition. The leg was subsequently amputated below the knee. Daniel later testified that the appellant put his leg in a bucket of hot water, and because of this, his leg turned red and hurt. A social worker, Carol Maxwell, also testified that Daniel told her that the appellant put his leg in the hot water because he had been running in the house. There were other indications that Daniel had been beaten on his head and body.

The appellant denied any participation in the hot-water incident and testified that the act was the result of conduct by one of her sons, Alglister Cunningham, who had immersed the boy’s leg. She also denied any other beatings. On October 29,1990, the appellant and Cunningham were charged with first-degree battery and the appellant alone was charged with permitting child abuse. The child-abuse charge was later dismissed, and this court affirmed the dismissal on appeal. State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991).

Trial of the battery charge commenced against the appellant and Cunningham on March 18, 1991. During jury selection a black juror, Mrs. Williams, was peremptorily challenged by the state. The following colloquy ensued:

DEFENSE ATTORNEY: And, Judge, I need to make a motion. Fm not sure if you want to do it at this point.
THE COURT: What is it? Just go ahead. Just make it. What is it? Just make it.
DEFENSE ATTORNEY: Judge, I think it’s one that has to be made out of the hearing of the jury.
THE COURT: Huh?
DEFENSE ATTORNEY: It’s a Batson type motion.
THE COURT: Batson motion? Respond to it. Make your response from out there. Why did you excuse Mrs. Williams?
MRS. LARUE: Your Honor —
COURT REPORTER: Do you want it out here? I can’t hear you.
THE COURT: We’ll do it out there.
COURT REPORTER: Then say it where I can hear you.
DEFENSE ATTORNEY: Judge, I think that’s going to cause some problems if it’s in front of the jury.
THE COURT: Well, sure it does. But you make the motion. If you don’t want to hear the motion —
DEFENSE ATTORNEY: Well, Judge, there are a lot of motions — If we do that, then I’ll have to make a motion for a mistrial.
THE COURT: You can’t have it both ways. We don’t have a sidebar. All right. Mrs. LaRue.
DEFENSE ATTORNEY: Note an objection to doing it in front of the entire jury panel.
THE COURT: Okay.
MRS. LARUE: Your Honor, in response to Mr. Marczuk’s [sic] motion, the State excused Mrs. Williams as a result of the answer she gave Mr. McCullough during his questioning of her. We have also called Mrs. Williams to the rail in other trials before this Court and excused her as a result of those answers.
MR. FRAISER: As well as, your Honor —
DEFENSE ATTORNEY: I’m going to object, Judge. Mrs. LaRue is responding to the motion. Miss Bailey can no more speak on that issue than I could at this point. And Mr. Fraiser ought not be allowed — The State can take two bites at it.
THE COURT: Overruled. Go ahead.
MR. FRAISER: Your Honor, she served on a case less than two weeks ago. Both the Defense and the State accepted her. A review of this Court’s records will show that in every single jury trial before this in this Court —
DEFENSE ATTORNEY: Judge, I’m going to object to that,
THE COURT: Just be quiet.
DEFENSE ATTORNEY: The Supreme Court says —
THE COURT: Just be quiet, Mr. McCullough.
MR. FRAIZER: In this Court that people of color, regardless of color, have sat on a jury. There’s no showing by Mr. McCullough that we strike people based solely upon their skin color. And there are members of color, regardless of what color, seated on the jury hear [sic] today.
THE COURT: Anything else, Mr. McCullough?
DEFENSE ATTORNEY: Yes. We’d note again an objection to having done this in full display of the jury and the jury is, of course, privy to the conversation. And we’d move for mistrial.
THE COURT: On what grounds?
DEFENSE ATTORNEY: On the fact that it was not done sidebar or in chambers.
THE COURT: It doesn’t have to, does it?
DEFENSE ATTORNEY: I think the Supreme Court says it does.
THE COURT: Does it?
DEFENSE ATTORNEY: I think Batson, U.S.A. versus Wilson which was decided by the Eighth Circuit Court of Appeals and went up to the United States Supreme Court and they denied cert. I think that indicates clearly that that’s a determination to be made by the Court and solely by the Court outside the hearing of the jury.
THE COURT: I made it. Overruled. Go ahead. What else? Call two more jurors to the rail.

A jury was seated, and the jury convicted the appellant of the battery charge and sentenced her to thirteen years in prison and fiend her $ 10,000. The circuit court converted the fine to an extra year in prison for a total term of fourteen years.

BATSON HEARING

The appellant raises an issue of first impression for this court. She questions whether she was entitled to have her Batson motion establishing a prima facie case for relief held outside of the presence-of the jury. See Batson v. Kentucky, 476 U.S. 79 (1986). We believe that she was entitled to this and that it was prejudicial to the defense to require counsel to make the motion, argue it, and then have the state respond to it, all in the presence of the jury.

We have had an opportunity to discuss the Batson decision and procedure relating to it several times in the last six years. See e.g., Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991); Colbert v. State 304 Ark. 250, 801 S.W.2d 643 (1990); Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Smith v. State, 294 Ark. 357, 742 S.W.2d 936 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). We have specifically recognized that the Court declined to formulate procedures or implement Batson. See, e.g., Colbert v. State, supra; quoting Batson, 476 U.S. at 99. The upshot of this lack of direction has been that the states have been forced to chart their own courses in formulating procedures for the time, place, and manner of the Batson process.

Part of the problem has been that the Batson decision contemplates two determinations by the trial court. The defendant must first object to the prosecutor’s peremptory challenges and establish a prima facie case of purposeful discrimination. The Batson Court carefully outlined what is necessary for the defendant to cross this threshold:

1. The defendant must show that he is a member of a cognizable racial group, and the prosecutor has exercised his peremptory challenges to remove from the venire members of the defendant’s race.
2. The defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.
3. The defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude venire members from the petit jury on account of race.

Batson, 476 U.S. at 96. The Court then stated that the combination of these factors in empaneling the jury raises the necessary inference of purposeful discrimination for the defendant to make a prima facie case.

Two factors to be considered as relevant circumstances were specifically mentioned by the Court. First, a pattern of strikes against black jurors in the particular venire might give rise to an inference of discrimination. Secondly, the prosecutor’s questions and statements during voir dire and in exercising his peremptory challenges may support or refute an inference of a discriminatory purpose.

The trial court then decides whether a prima facie case has been made by the defendant. Once that showing is made, the burden shifts to the state “to come forward with a neutral explanation for challenging black jurors.” Batson, 476 U.S. at 97. Following the neutral explanation by the state, the trial court must make a second determination, that is, whether the defendant has actually established purposeful discrimination.

But, again, the Batson Court was silent on the procedures that the states should use in implementing the decision. More precisely, the Court did not address whether the defendant has a right to have any part of a Batson objection heard outside of the jury’s presence. It is clear, however, that in several post-Batson cases, the neutral explanation by the state has been given to the court in camera. See, e.g., United States v. Thompson, 827 F.2d 1254, (9th Cir. 1987), United States v. Davis, 809 F.2d 1194 (6th Cir. 1987), cert. denied 107 U.S. 3234 (1987); United States v. Tucker, 836 F.2d 334 (7th Cir. 1988); Salazar v. State, 795 S.W.2d 187 (Tex. Cr. App. 1990). The issue in those cases, however, was not the issue before us but whether the defendant and defense counsel were entitled to be present in chambers or whether the explanation could be heard ex parte.

In the colloquy that occurred at trial, the defense counsel tried to object and the trial court preempted him and turned immediately to the prosecutor for a neutral explanation, without deciding whether the appellant had first made a prima facie case:

DEFENSE ATTORNEY: It’s a Batson type motion.
THE COURT: Batson motion? Respond to it. Make your response from out there. Why did you excuse Mrs. Williams?

What followed were several protests by defense counsel that the issue should not be heard in front of the jury, culminating in the following response from the prosecutor, Mark Fraiser:

A review of this Court’s records will show that in every single jury trial before this in this Court. . .In this Court that people of color, regardless of color, have sat on a jury. There’s no showing by Mr. McCullough that we strike people based solely upon their skin color. And there are members of color regardless of what color, seated on the jury hear [sic] today.

The circuit court’s refusal to permit defense counsel’s objection at sidebar or in chambers resulted in an argument between counsel over racism in front of the jury. The prosecutor argued forcefully that the defense counsel had accused the State of racism and denied the accusation.

For the circuit court to permit, and even instigate, such behavior with the jury present is unacceptable. There is no good reason for the objection or for the neutral explanation to be presented in front of the jury. The reason for this is obvious: race is a volatile and combustible issue and an accusation of racism by one attorney against another could readily prejudice the venire members, who were of mixed color, for or against the accuser and his client. It would have been a simple matter for the circuit court to have heard the defense counsel’s objection at sidebar and determined whether a prima facie case was established, but the court chose not to do this. We conclude that having the Batson objection and response aired before the jury was prejudicial to the appellant, and denied her due process of law. Ark. Const, art. 2, § 8; U.S. Const, amend. 14.

In holding as we do today, we do not foresee an administrative burden on the trial courts. There is no reason why the defense objection and the determination of a prima face case could not be made at sidebar, although the trial court, in its discretion, might well prefer to resolve the threshold issue in chambers and, assuming a prima facie case has been established, hear any neutral explanation from the state immediately thereafter.

Our holding today simply goes to the point that mandating defense counsel to make his Batson objection, which amounts to a charge of racism against the State, in front of the jury and then urging the prosecutor to respond was unduly prejudicial to the appellant and denied her a fair trial.

LESSER INCLUDED OFFENSES

Because we are remanding for a new trial, we will review the two additional points raised by the appellant. She first argues that she was entitled to instructions on the lesser included offenses of second and third degree battery. The appellant has failed to abstract these instructions and, ordinarily, we would decline to address the issue. See Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985). Nevertheless, in view of the remand we will consider the point raised.

Throughout the trial, the appellant maintained that she did not put Daniel’s leg in the hot water and that she was in the kitchen when her son, Alglister, called out to her. In short, she placed the onus for any offense committed on her son. She further denied participating in other beatings. Because her position is one of complete denial of any culpable activity on her part, there is no rational basis for giving a lesser-offense instruction. See Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986); Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986). The circuit court was correct in refusing to give the instructions requested.

CONFRONTATION CLAUSE

The appellant also contests the hearsay testimony given by the social worker, Carol Maxwell, regarding why the appellant put Daniel’s leg in the hot water. Again, the abstract is void of any objection made by the appellant to Ms. Maxwell’s testimony. before the trial court, and we will not consider an issue where the trial court has not had an opportunity to consider it first. Forgy v. State, 302 Ark. 435, 790 S.W.2d 173 (1990).

The appellant did state to the circuit court relative to the social worker’s testimony: “We would not at this point wish to be deemed as having waived any confrontational things.” The confrontation rights of the appellant under the Sixth Amendment were not violated in this case. We have held that when a declarant testifies at trial and is subject to unbridled cross examination, the Confrontation Clause is not violated by the admission of additional hearsay statements made by that declarant. Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987); citing California v. Green, 399 U.S. 149 (1970). The declarant, Daniel, testified at trial and was subject to full and effective cross examination by the appellant. The appellant’s argument on this point is without merit.

Reversed and remanded.

       In Pacee v. State 306 Ark. 563, 816 S.W.2d 856 (1991), the trial court retired to chambers to hear the state’s neutral explanation. In Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988) (C.J. Holt dissent), the state’s explanation for why it struck a particular juror was given in sidebar conference.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John Steven CLARK v. STATE of Arkansas
    CR 91-120
    824 S.W.2d 345
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      Bill Bristow, for appellant.

      Winston Bryant, Att’y Gen., by: Stephen Engstrom, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant John Steven Clark moves to stay the mandate of the court pursuant to Ark. Sup. Ct. R. 22(c) on the basis that he may file a petition for certiorari in the U.S. Supreme Court. Appellant states that the primary federal question to be raised in such a petition would be selective prosecution. Selective prosecution was not raised by the appellant as a defense in the trial of this matter and was not raised by the appellant as a defense in the trial of this matter and was not before this court on appeal. The motion to stay is denied.

Holt, C.J., and Dudley, Hays, and Newbern, JJ., not participating.

Special Justices Robert Wright, Lonnie Beard, Howard Brill and Kenneth Gould concur.


text:
    Michael O’ROURKE Through His Next Friend, Jeff Rosenzweig v. STATE of Arkansas
    CR 89-145
    825 S.W.2d 262
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      Jeff Rosenzweig, for petitioner.

      Winston Bryant, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for responsent.
   Per Curiam.

In 1986 the petitioner Michael O’Rourke was found guilty of capital murder and sentenced to death. We affirmed. O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). Petitioner subsequently filed a petition to proceed in circuit court pursuant to Criminal Procedure Rule 37. On February 27,1989, we granted petitioner permission to apply to the circuit court for an evidentiary hearing on two allegations of ineffective assistance of counsel. O’Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (19 8 9). After an evidentiary hearing was held at which petitioner was represented by appointed counsel, Jeff Rosenzweig, the trial. court entered an order denying post-conviction relief. Shortly after Mr. Rosenzweig lodged the record on appeal of the order, petitioner filed a pro se motion in which he stated that he did not wish to pursue the appeal or further litigation. Recognizing that a condemned person may waive collateral challenges to his conviction and sentence provided he is mentally competent to do so, we remanded the case to the trial court for an evidentiary hearing on whether petitioner was competent to waive the collateral challenge advanced under Rule 37. O’Rourke v. State, 300 Ark. 323, 718 S.W.2d 938 (1989). The court on remand found appellant competent, and we subsequently dismissed the appeal.

Jeff Rosenzweig, as Next Friend of-the petitioner, has now filed a motion in this court seeking to reinstate the Rule 37 appeal. Mr. Rosenzweig states in the motion that after this court dismissed the appeal in 1989, he (Rosenzweig), believing petitioner O’Rourke to be incompetent, filed a petition in the United States District Court seeking appointment as Next Friend and permission to pursue petitioner’s habeas corpus remedies in federal court on petitioner’s behalf. The District Court subsequently ordered a psychiatric evaluation of petitioner which was conducted by Dr. Daryl Matthews of the University of Arkansas Medical School Department of Psychiatry. Apparently, Dr. Matthews conducted the evaluation in the latter half of 1991, a year or more after the 1990 psychiatric evaluation relied on by the trial court when it found petitioner competent to dismiss the Rule 37 appeal. Upon receipt of Dr. Matthews’ evaluation, the District Court on January 16, 1992, entered an order in which it accepted the findings of Dr. Matthews that petitioner was suffering at that time from an intermittent delusional disorder which resulted in his not having the capacity to make a knowing, understanding, and voluntary waiver of the review of his conviction and death sentence in the trial and appellate levels of the state and federal courts. The District Court further found that because of petitioner’s impaired capacity, it was not necessary to determine his own wishes as to whether to pursue post-conviction remedies. The District Court appointed Rosenzweig as Next Friend and counsel for petitioner. The court noted that the state was unwilling to waive the requirement that petitioner exhaust all available state remedies and stayed the federal proceedings until all the proceedings in state court were concluded. The motion now before us asks that the appeal of the order which denied Rule 37 relief be opened in light of the District Court’s order of January 16, 1992.

When this court dismissed the appeal of the order which denied petitioner’s Rule 37 petition in January 1991, we did so because it had been determined by the trial court after a psychiatric evaluation conducted at the Arkansas State Hospital that appellant had the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation. We are not persuaded by appellant’s Next Friend or the state that there is any just cause to reinstate the appeal now simply because another psychiatric examination conducted later caused the District Court to find that petitioner is not competent at this time.

We have been given no reason to conclude that a finding that the petitioner is presently suffering a mental disability is relevant to his mental capacity at the time he waived his right to appeal. As we determined him competent to enter a waiver at the time it was done, the waiver stands. There must be some stability in criminal cases. We decline to negate an action of this court which was entirely appropriate to the legal circumstances which existed when the action was taken.

Motion denied.

       The 1990 evaluation ordered by the trial court was conducted by Dr. O. Wendall Hall, Forensic Medical Director at the Arkansas State Hospital on July 30, 1990. The report was filed September 20,1990, and made a part of the record before the trial court at the hearing on petitioner’s competence. Information available to this court about the 1991 evaluation conducted by order of the District Court is derived from the District Court Order of January 16, 1992.


author: Robert H. Dudley, Justice. Steele Hays, Justice.

text:
    65TH CENTER, INC., et al. v. Basil L. COPELAND, Guardian of the Estate and Person of J.C. Gideon, an Incapacitated Person, et al. v. Blue Cross and Blue Shield
    91-16
    825 S.W.2d 574
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      Lovett Law Firm, by: Brian P. Boyce, for appellants.

      David Hodges and Bay Fitzhugh, for appellees.

      Davidson, Horne & Hollingsworth, by: Cyril Hollingsworth, for appellees/cross-appellants Blue Cross and Blue Shield.
   Robert H. Dudley, Justice.

The primary question in this tort suit is whether a private possessor of land that is adjacent to a public roadway is liable for the injury of a person who unintentionally deviates from the roadway. Because the numerous parties have filed a total of twelve briefs with multiple points of appeal, containing many subpoints, we choose to first state the facts and then address the issues in the order we think they will be most easily understood.

West 65th Street runs east and west in the southwest part of Little Rock. In the ,1950’s it was a two-lane street located in an area that was beginning to grow as the result of new industries and commercial operations. Traffic became congested and, in the early 60’s, as part of an overall city street improvement program financed by a bond issue, the City decided to widen 65th Street to four lanes. The City employed the engineering firm of Garver & Garver to perform the planning and engineering work for the “1965 Street Improvement Project.” James Russell Barry, an engineer employed by Garver & Garver, designed the part of the project that involved 65th Street. One of the many north-south streets intersecting 65th Street is Lancaster Road. Lancaster had two lanes and, from Lancaster facing north toward its intersection with 65th Street, the shoulder on the west side sloped down into the parking lot of a shopping center that was located on the southwest corner of the intersection. 65th Center, Inc. owned the shopping center and parking lot.

Garver & Garver’s original design for the construction of four lanes on 65th Street was completed in July 1966. In August 1966,65th Center, Inc., donated land to the City for the widening of 65th and also the widening of Lancaster where it intersected with 65th Street. Lancaster had to be modified since the additional lanes on 65 th would expand over onto Lancaster and that would require a change in width, grade, and alignment. In November 1967, the engineers modified their plans so that Lancaster Road would have three lanes entering into the intersection. Facing north on Lancaster Road, the old right-hand lane would be used as a right turn lane for turning east onto 65th; the old left-hand lane would be used for cars going north straight across the intersection with 65th; and a new lane would be constructed on the far left for vehicles turning south off 65th Street. In order to construct the new lane for vehicles turning south off 65th Street, the 315 feet of Lancaster nearest the southwest corner of the intersection would have to be widened. These modified plans called for building a retaining wall next to the parking lot in order to retain the fill that would be made in the area that previously had been sloped, so that the turning lane would be level with the two older lanes of Lancaster. The result would be that the parking lot would remain as it was, but it would be bordered on the west by a retaining wall that was eight inches thick and seven feet high and, behind that wall, on the right-of-way, would be an area of fill that was eight feet wide, and then the newly constructed lane. The top of the retaining wall would be a few inches above the fill.

The City contracted with Southeast Construction Company, Inc., to build the retaining wall according to the plans. Southeast started construction, and James Russell Barry, the engineer who designed the wall and was supervising the construction, testified that the retaining wall was over on 65th Center’s property but the City instructed him to go ahead with the project. The City did not want to decrease the width of the fill area. Mr. Barry testified that 65 th Center was not told that a part of the wall was located on its land. A subsequent survey has revealed that, at the south end,. 18 foot of the wall is on 65th Center’s property and, at the north end, .71 foot of the wall is on the Center’s property. Thus, the City constructed a part of the retaining wall on 65th Center’s land.

Southeast completed construction of the wall in 1969. The area between the top of the retaining wall and Lancaster Road was filled in by the City, and, since then, grass has grown over the fill. From the Lancaster Road side of the wall, or east side, the wall is four inches taller than the grass. 65th Center has mowed the grass over the intervening twenty years.

On April 14,1989, J. C. Gideon, a sixty-eight-year-old blind man, was a passenger on a bus that was owned by the Central Arkansas Transit Authority and operated under an agreement with Professional Transportation Services, Inc., which, in turn, employed the driver, Lee Brooks. The bus was traveling east on 65th Street when it began to lose air from the left side of its suspension system and that loss of air caused the bus to begin to tilt to its left side. Mr. Brooks was able to turn the bus to the right off 65th Street onto Lancaster Road before the left side of the bus frame came to rest on the wheels. He stopped the bus at a point almost parallel with the retaining wall. Mr. Brooks got off and called for another bus. The replacement bus soon arrived and parked directly behind the first bus. Mr. Brooks told the passengers that the replacement bus was parked directly behind the first bus, but neither Mr. Brooks, nor the second bus driver, nor any of the passengers offered to assist J. C. Gideon in changing busses. He did not ask for assistance and, by himself, started to change buses. He stepped down off the first bus and, instead of turning to the right, walked straight away from the bus. He walked the eight feet across the grass covered City right-of-way, tripped over the exposed four inches of the retaining wall, fell the seven feet to the paved parking lot, landed partially on the back of his head, and, as a direct result, suffered unremitting permanent injuries. He was in a coma for a long time and will need care the rest of his life.

Gideon’s guardian, Basil Copeland, filed suit against Central Arkansas Transit Authority and its insurer, Clarendon National Insurance Company; Professional Transportation Services, Inc.; Lee Brooks; Garver & Garver; Southeast Construction Company; the City of Little Rock; A. B. Corder and Leon Fields, corporate officers of 65th Center, Inc.; and 65th Center, Inc. Blue Cross and Blue Shield intervened to claim a right of subrogation to the $220,635.32 medical expenses it had paid the guardian of Mr. Gideon.

The trial court, or circuit court, granted summary judgment in favor of Central Arkansas Transit Authority and its insurer, Clarendon National Insurance Company. The guardian, Copeland, then entered into a settlement of one million dollars with Mr. Brooks, the driver; Central Arkansas Transit Authority, the owner; and Clarendon National Insurance Company, the insurer of Central Arkansas Transit. That settlement was approved by the probate court in the guardianship proceeding.

The trial court additionally granted summary judgment in favor of Garver & Garver, Southeast Construction Company, the City of Little Rock, A. B. Corder, and Leon Fields.

Ultimately, the plaintiffs case went to trial against only 65 th Center, Inc. 65th Center made timely motions for a directed verdict on the basis that it owed no duty to Mr. Gideon. The trial court denied the motions. The jury returned verdicts on interrogatories and found 65th Center liable for 36% of Mr. Gideon’s damages, and Lee Brooks and Professional Transportation Services, Inc. liable for 64% of the damages. The jury assessed damages at $1,600,000.00. The result was a judgment against 65th Center in the amount of $576,000.00.

The first assignment of error that we address is 65th Center’s argument that the trial court erred in holding that it owed a duty to Mr. Gideon. The argument is meritorious. 65th Center moved for a directed verdict both at the close of the plaintiffs case and after the close of all evidence. See A.R.C.P. Rule 50(a).

The first element of a cause of action in tort is “[a] duty, or obligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” W. P. Keeton et al., Prosser and Keeton on the Law of Torts § 30, at 164 (5th ed. 1984). The question of whether a duty is owed is always a question of law and never one for the jury. Keck v. Am. Employment Agency, Inc., 279 Ark. 294, 298, 652 S.W.2d 2, 4 (1983). We hold that 65th Center owed no duty to Mr. Gideon.

Our cases, cases from other jurisdictions, and the Restatement (Second) of Torts, make it clear that the order, or sequence, in which the creation of a dangerous condition and the construction of a public roadway occur is the primary factor in determining who owes a duty of care to one who unintentionally deviates from that roadway. The law applicable to one sequence of events, and the law urged by the guardian for Mr. Gideon as applicable in this case, is when the possessor of property which abuts an already existing public roadway makes an excavation on his property near the highway or creates or permits some other condition to exist which renders travel on the highway unsafe. In such a situation the law is clear that the possessor of the property has a duty to take reasonable precautions to guard against the danger and to protect travelers from that danger and, if he does not so do, may be held liable for any damages to a traveler who is injured as a result of the dangerous condition when the traveler unintentionally deviates from the roadway. Strange v. Bodcaw Lumber Co., 79 Ark. 490, 96 S.W. 152 (1906); Restatement (Second) of Torts § 368 (1965); and see N. Little Rock Transfer Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967); G. L. Clark, Annotation, Liability of Adjoining Property Owner for Injury to One Deviating from Highway or Frequented Path, 159 A.L.R. 136(1945). The second rule is applicable when a roadway is established close to a dangerous condition which already exists upon the possessor’s land or where the construction of the roadway itself creates a dangerous condition on the possessor’s land. In such a case the law places the duty to guard against the dangerous condition upon those who are charged with the duty of maintaining the highway in a reasonably safe condition for travel and not upon the possessor of land upon which the dangerous condition is located. Birchfield v. Diehl, 126 Ark. 115, 189 S.W. 845 (1916); Restatement (Second) of Torts § 368 cmts. c and j (1965); see also R. D. Hursh, Annotation, Duty and Liability of Municipality as Regards Barriers for Protection of Adult Pedestrians Who May Unintentionally Deviate from Street or Highway into Marginal or External Hazards, 44 A.L.R.2d 633 (1955); and R. P. Davis, Annotation, Duty as Regards Barriers for Protection of Automobile Travel, 173 A.L.R. 626 (1948).

We have no hesitancy in holding that the facts of this case come within the second rule; the rule applicable when the construction of the roadway creates the dangerous condition. Here, the City built the retaining wall as an integral part of the roadway, and the wall is the object that constituted the danger. The guardian for Mr. Gideon contends that we should not apply the second rule to this case since the wall is partially on 65th Center’s property. It does not matter that the City placed some part of the retaining wall on 65th Center’s land. Title or possession is not the determinative factor. As examples, a landowner is not liable for the negligent act of a third party, when the landowner had no control over the person who committed the act and the act was not committed on his account, Magnolia Petroleum v. Melville, 202 Ark. 382, 150 S.W.2d 220 (1941), but a private individual may be liable for creating a dangerous condition on an existing public roadway, Arkansas Fuel Oil Co. v. Downs, 205 Ark. 281, 168 S.W.2d 419 (1943), just as a government might bear sole liability for a dangerous condition that it created on private land contiguous to a roadway. Restatement (Second) of Torts § 368 cmts. candj, illus. 7 (1965) provide:

c. When highway built near excavation. If a highway is established in close contiguity to an excavation or other dangerous artificial condition upon the possessor’s land, whether constructed by him or otherwise created, the duty to guard such dangerous condition is upon those who are charged with the duty of maintaining the highway in a reasonably safe condition for travel and not upon the possessor of land upon which the dangerous condition is situate.
j. The rule stated in this Section does not impose any duty upon a possessor of land to remove or guard dangerous conditions which existed at the time the highway was dedicated. Nor does it impose any duty to remove or guard dangerous conditions created by a natural force, such as rains or floods, or by an act of a third person done without the permission of the possessor. On the other hand, if the possessor or his predecessor in possession has created a dangerous condition which is guarded, by a fence or otherwise, the possessor is under a duty to use care to maintain the fence or other guard in a reasonably efficient manner, and to replace it if it is destroyed or removed even by an unexpectable force of nature or by the intentional or negligent act of a trespasser.
Illustration:
7. A is the possessor of land upon which there is a deep quarry. A highway is laid out and established running along the edge of this existing quarry. It is the duty of the municipality maintaining the highway for public travel, and not of A, to erect and maintain fences or other guards to protect travelers upon the highway.

A “possessor of land” is a person who is in occupation of the land with intent to control it. Restatement (Second) of Torts § 328E (1965). Our case of Birchfield v. Diehl, 126 Ark. 115, 189 S.W. 845 (1916), although written before the publication of the Restatement, is on point. There, a city, under the valid exercise of its police power, ordered the landowner to construct a sidewalk on a certain grade. The sidewalk, when built on that grade, left a drop to the abutting ground of three to five and one-half feet. The landowner neither filled the drop next to the sidewalk nor put up a guard railing. A pedestrian fell off the walk and sued both the landowner and the city. The holding of the case is so precisely on point that we quote it:

Had the city itself constructed this walk, it would not have been liable to appellant for his injury, because the -cities of this State are not liable for such damages.
Nor can one be held liable who obeys the city’s mandate and does an act which the city may require and for which it would not be liable had the act been done by itself.
Here the owner did nothing to his lot to change its condition, and it was in obedience to a valid exercise of the police power of the city that he constructed the walk. The primary duty to construct sidewalks rests upon the city, but, in the exercise of its authority, it shifted that burden to the property owner, and this added burden was discharged when the property owner complied with the ordinance. [Citations omitted.]

Id. at 117, 189 S.W. at 846.

In the same manner the City, in the case at bar, built the retaining wall to hold the fill for its elevated right-of-way. Such action by the City did not place a duty of care on the abutting landowner for someone who unintentionally deviates from that right-of-way.

The guardian for Mr. Gideon suggests that 65th Center’s mowing the City’s right-of-way and painting the top of the wall yellow constituted “maintaining” the road as provided in comment c of the Restatement quoted above. The guardian does not offer a citation of authority for such an argument, and we are unable to see any merit to it. The fact that one sometimes voluntarily mows the grass on a public right-of-way, or occasionally paints the top of a roadway wall, does not obligate that person to maintain the roadway in a safe condition. Such an act does not give the volunteer control over the public roadway, nor does it give him the right to direct the purposes for which the public’s interest may be used, nor does it obligate him to any responsibility to continue his voluntary work.

The guardian argues that 65th Center is barred in this appeal from raising the issue of duty. The argument is without merit since 65th Center moved for a directed verdict at the close of the guardian’s case and again at the close of all of the evidence. When it made its motions, 65th Center expressly argued comment c of § 368 of the Restatement (Second) of Torts. Thus, it did all that it needed to do to preserve the issue, and the trial court erred in holding that 65th Center owed a duty to Mr. Gideon. As a result, we reverse and dismiss on 65th Center’s direct appeal on the issue of duty. We do not address 65th Center’s five other assignments of error.

We now address the assignments of error by J. C. Gideon’s guardian on his direct appeal. He argues that the trial court erred in granting summary judgment in favor of Garver & Garver and Southeast Construction Company. The trial court’s rulings on these points were eminently correct. The retaining wall was designed in 1967 and constructed in 1969. The accident occurred in 1990.

Ark. Code Ann. § 16-56-112(b)(1) (1987) provides:

No action in tort or contract, whether oral or written, sealed or unsealed, to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or the construction and repair of the improvement more than four (4) years after substantial completion of the improvement. [Emphasis added.]

In an effort to avoid the application of this statute of limitation, the guardian makes four arguments. First, he argues that the retaining wall is not “an improvement to real property.” We summarily dispose of the argument. The retaining wall is built of concrete, is seven feet high, 125 feet long, and eight inches thick and has a footing underneath. It is a permanent structure and is an “improvement.” See DePriest v. Piekert, 211 Ark. 460, 200 S.W.2d 804 (1947). Second, he argues that the allegations of negligence do not arise from the “design, planning, supervision, or observation of construction or the construction and repairing” of an improvement to real property. Garver & Garver clearly designed and observed the construction of the improvement, and Southeast just as clearly constructed it. Third, he argues there was no “substantial completion of the improvement” in 1969 because a restraining bar or guardrail was not placed on top of the wall. Again, the argument is without merit since the wall was completed when the work was finished in accordance with the contract, and the City accepted it. Fourth, the guardian argues that this is not a “deficiency in construction” case, but instead, “concerns a failure to put up a guardrail.” In Okla Homer Smith Furniture Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 470, 646 S.W.2d 696, 698 (1983), we wrote that this statute of limitation was to protect “persons engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit.” The only exception is when there is a “fraudulent concealment of the deficiency.” Ark. Code Ann. § 16-56-112(d) (1987).Theabsence of a guardrail was not concealed.

The guardian next argues that the trial court erred in ruling that he did not have a claim against the City of Little Rock. In his complaint, the guardian pleaded that the City failed to use ordinary care in failing to install a guardrail or warning devices on the retaining wall. The trial court ruled that, as a matter of law, the guardian did not have a claim against the City. The ruling was correct. Ark. Code Ann. § 21-9-301 (1987) provides:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability for damages. No tort action shall lie against any such political subdivision because of the . acts of their agents and employees. [Emphasis added.]

We have repeatedly upheld the tort immunity of municipalities for the negligence of their employees. See, e.g., Autry v. Lawrence, 286 Ark. 501, 696 S.W.2d 315 (1985); Augustine v. City of West Memphis, 281 Ark. 162, 662 S.W.2d 813 (1984); and Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983). These cases, and many others, dispositively establish that governmental subdivisions of this State cannot be held liable for tortious injury.

The guardian contends that the City’s tort immunity is barred because a part of the retaining wall is located on private property, but he cites no authority for the proposition. We are not persuaded by the argument, especially in view of the first phrase of the last sentence of the applicable statute, quoted and emphasized above. He also argues that it was illegal for the City to use public funds to construct a part of the retaining wall on private property; thus, he argues, the City committed an ultra vires act and lost its immunity. We quickly dispose of the argument by stating that the wall was built for a public purpose, and a city may make improvements on private property when the improvement is for a public purpose. City of Ft. Smith v. Bates, 260 Ark. 777, 544 S.W.2d 525 (1976). In addition, the statute is absolute in its terms of immunity for the governmental subdivision.

The guardian’s next assignment of error is that the trial court erred in granting summary judgment for A. B. Corder and Leon Fields, who the were directors and officers of 65th Center, Inc. The guardian does not cite any cases for his argument, and we choose not to research the issue. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). However, it is obvious that the officers of the abutting landowner corporation owed no duty of care to Mr. Gideon if the corporation owed no such duty.

The final point of the guardian’s direct appeal which we address involves the expenses of expert witnesses and comes about in the following way. Prior to the time that Professional Transportation Services, Inc. and Lee Brooks reached their settlement with the guardian, the attorneys for Professional Transportation and Brooks agreed with the attorneys for the guardian to have expert witnesses come to Little Rock, rather than have the lawyers go to the various cities where the experts lived, and the attorneys for Professional Transportation and Brooks were to pay the expenses of the experts. No amount was fixed for these expenses. After the expert witnesses were deposed, in accordance with the agreement, they sent statements to one of the attorneys for the guardian who, in turn, forwarded the statements to the attorneys for Professional Transportation and Brooks. The latter attorneys paid a substantial portion of the statements, but refused to pay all of the claimed expenses because they thought the amount was unreasonable. The attorneys for the guardian filed a motion asking that the attorneys for Professional Transportation and Brooks be compelled to pay the statements in full. The trial court conducted a hearing on the motion, fixed the amount it considered reasonable, and ordered the attorneys for Professional Transportation and Brooks to pay that amount.

A.R.C.P. Rule 26(4)(C) provides that fees and expenses must be “reasonably” incurred. In Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978), we said that a trial court has “a wide latitude of discretion” in determining matters related to discovery, and that includes determining the amount of “reasonable” expenses. We have examined the hours claimed, the rates claimed, the travel expenses claimed, and we cannot say the trial court abused its wide latitude of discretion in setting a “reasonable” amount for the expenses.

It is necessary for us to address only one of the remaining points of appeal. It involves Blue Cross and Blue Shield’s cross-appeal and its alleged right of subrogation to a part of the proceeds of the settlement between the guardian and Professional Transportation and Brooks. As previously set out, prior to the trial against 65th Center, the guardian for Mr. Gideon settled the case against the bus company, the operator of the bus line, and the bus driver for one million dollars. That settlement was approved by the probate court, and those funds are under the control of that court. Blue Cross asked the court in which this case was pending, the circuit court, to reimburse it under its right of subrogation, for the funds it has paid out for the medical expenses of Mr. Gideon. It asked that it be reimbursed out of the settlement funds, the funds under the jurisdiction of the probate court. The trial court refused to do so, holding that the probate court alone had jurisdiction over those funds. The ruling of the trial court was correct. The issues are fully addressed in the recent case of Forehand v. American Collection Serv., Inc., 307 Ark. 342, 819 S.W.2d 282 (1991), and we need not repeat that discussion in this case, other than to state that the circuit court correctly held that it did not have jurisdiction over the payment of claims against the ward’s account.

Affirmed in part on direct and cross-appeal, and reversed and dismissed in part on direct appeal.

Hays and Brown, JJ., dissent.

Steele Hays, Justice.

The majority opinion acknowledges the general rule, i.e., when possessors of land create a hazardous condition, or permit one to exist, so near a highway that they realize it involves an unreasonable risk to others, the possessor is under a duty to take reasonable precautions to guard against the danger by protecting travelers from such danger. If they fail to do so they are subject to liability for any injuries a traveler may incur as a result of a dangerous condition when the traveler unintentionally strays from the roadway. The general rule clearly provides a legal base for the holding of the trial judge that 65th Center, Inc. (Appellant) owed a duty to Mr. Gideon.

Notwithstanding the general rule, the majority concludes the law recognizes no duty under the factual setting of this case. I respectfully submit that the duty owed to Mr. Gideon and other travelers is simply one of reasonable care, not only with respect to conditions within the premises of the appellant but to those outside as well. See W. P. Keeton et al., Prosser and Keeton on The Law of Torts § 57, at 387 (5th ed. 1984):

Danger to Highway
A large proportion of the cases have involved danger to an adjacent public highway. The public right of passage carries with it, once the highway has been established, an obligation upon the occupiers of abutting land to use reasonable care to see that the passage is safe. They are not required to maintain or repair the highway itself, but they will be liable for any unreasonable risk to those who are on it, such as an open coal hole in the sidewalk, or overhanging objects ready to fall. The obligation extends also to any artificial conditions, such as an excavation or utility pole next to the street, or a protrusion into it, which are dangerous to those who use it.
The status of a user of the highway has been extended to those who stray a few feet from it inadvertently. It has been extended also to those who deviate intentionally for some purpose reasonably connected with the travel itself, such as detouring an obstruction, or stepping out to avoid others on the sidewalk, or even stopping in a doorway to tie a shoelace. On the other hand, one who intentionally leaves the highway for some purpose of his own not reasonably connected with travel is not regarded as a user of the highway, but becomes a trespasser, or at most a licensee. And one who wanders into a pit a considerable distance from the road after traversing the adjoining land, even though he does so inadvertently, is denied such protection, and treated as a trespasser. The distance would appear not to be so important in itself, but merely to bear upon the existence of a recognizable danger to the normal users of the highway. On the same basis the occupier of abutting land is required to guard against the tendency of children to stray from the road, where there is a condition close to it which will be unreasonably dangerous to them if they do. Likewise, if he so maintains a part of his land that it appears to be a highway, as where he paves a strip next to the street, or gives a private way the appearance of a public one, he must use reasonable care to see that there is no danger to those who are misled into using it.

There are a number of relevant factors which inveigh on the side of an existing duty: since its inception some twenty years ago appellant has maintained the strip between the top of the wall and the street; tenants of the shopping center testified that cars regularly drove off the ramp leading into the center, once from so near the ramp’s summit that the car landed on its top; the danger itself is patent — an abrupt, seven foot drop from street level to a hardened surface below, unfenced and unmarked, á mere eight feet from the edge of a busy city street. Such a condition constitutes, to my view at least, a hazard comparable to an open man-hole and the very nature of this incident underscores the hazard. The record, so far as I can determine, does not reflect the distance from the wall to the front door of the bus, from which Mr. Gideon emerged, but the driver testified that he stopped the bus on the grassy strip and thus hardly more than two steps, three at most, were required to reach the wall. Had the incident occurred at night even passengers with vision could have been at risk. Finally, appellant’s property is not private property as that term is generally understood, 65th Center is a commercial shopping mall, consisting of a college of business enterprises dedicated to the attraction of as many would-be shoppers as possible from the passing procession of motorists, pedestrians, etc.

The majority relies on Comment C of § 368 Restatement (Second) of Torts, which places the duty to guard against dangerous conditions upon those charged with maintaining the highway when a roadway is established close to a dangerous condition which already exists upon the possessor’s land or when the construction of the roadway itself creates a dangerous condition on the possessor’s land. The result of the majority’s application of Comment C is to completely absolve 65 th Center, Inc. from liability using a mechanistic rationale based primarily on who maintains the highway and dependent on priority in time as to the respective uses of the land by 65th Center and the City of Little Rock. In Prosser and Keeton on the Law of Torts § 57 (5th ed. 1984) Prosser discusses the general rule and notes that in determining the rights and liabilities arising out of the condition of land, the more significant consideration is the possession of the land because the possessor is in a better position to discover and control the dangers.

There have been few cases decided that have directly applied Comment C Restatement (Second) of Torts § 368. Prosser suggests that the form of the Restatement has had limited utility because it reduces the law to a fixed set of black letter rules while ignoring all contrary authority. This is unfortunate because the law of torts in its present stage of development does not lend itself well to such treatment. Prosser and Keeton on the Law of Torts at § 3. Prosser discusses how the law in this area is changing as rural communities evolve into urban centers. Id. at § 57. Consequently, what may have been sound fifty years ago is now outmoded and even inappropriate.

The Supreme Court of New Jersey has recognized that the rule of nonliability is derived from conditions that no longer exist and is not responsive to current urban conditions. In Stewart v. Wallace Street, Inc., 87 N.J. 146, 432 A.2d 881 (1981), it broke from the rule by extending to abutting commercial property owners liability for failure to perform necessary maintenance of sidewalks. The Stewart opinion confined the extension of the duty to maintain abutting property to owners of commercial property and set forth several sensible reasons for departing from the rule of nonliability: first, society has an interest in the safety of those traveling on public roads and highways and with the ever-increasing development of shopping centers and the sprawl of adjacent parking lots it has become increasingly difficult for motorists and pedestrians to avoid such routes. Id. Unquestionably, a consequential benefit of this growth to the landowner is the convenience of shopping centers and malls located in close proximity to public access.

Second, the New Jersey Supreme Court expressed the opinion that it was obviously unfair to permit a property owner “to sit idly by and watch with impunity” a dangerous condition just outside his premises become a trap for unwary pedestrians or motorists and to escape liability when “all too foreseeable injuries occur.” Id. at 154, 432 A.2d 881 at 886 [citing Murray v. Michalak, 58 N.J. at 223, 276 A.2d 857 (dissenting opinion)]. A third relevant factor is that the land possessor is in the best position to prevent or substantially lessen the likelihood of an accident. Id. The court also observed that the rule of nonliability undermines basic goals of tort law in two critical ways. First, it has left many without recourse who have suffered serious injury. Additionally, the rule gives abutting property owners no incentive to repair dangerous conditions thereby preventing injuries and actually creates a disincentive because an owner currently immune from liability will be liable for repairs voluntarily undertaken but negligently performed. Id.

When we give the circumstances of this case their strongest probative weight it seems clear to me that there is a duty under the law and reasonable minds could easily differ as to whether an injury might foreseeably result from a breach of that duty. Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983); W. P. Keeton et al., Prosser and Keeton on the Law of Torts § 45, at 320 (5th ed. 1984). That being so, it was not error to submit that issue to the jury.

Brown, J., joins in this dissent.


author: Steele Hays, Justice.

text:
    Roy C. GREEN v. Vikita BELL
    91-280
    826 S.W.2d 226
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      Randell Templeton, and James W. Whitney, Jr., for appellant.

      John W. Walker and Austin Porter, Jr., for appellee.
   Steele Hays, Justice.

On June 18, 1983, Vikita Bell, appellee, gave birth to a son, Landon Bell. In 1989 Ms. Bell filed a paternity action against Roy C. Green, appellant, in Pulaski County. That action was dismissed for lack of venue. On January 2, 1990, appellant filed this suit in Clark Chancery Court to determine the paternity of Landon Bell, asking that blood tests be ordered. The appellee filed a counterclaim seeking lying-in expenses, past and future child support, costs and attorneys fees.

Blood tests were performed and introduced over appellant’s objection. The chancellor found appellant was the father of Landon Bell, that paternity was supported by a preponderance of the evidence even without considering the blood test results, and entered judgment for the appellee against the appellant for various expenses, retroactive and prospective child support, costs and fees. Judgment was also awarded appellee’s father, Henry Bell, for lying-in expenses and other costs.

. Appellant appeals challenging 1) the admission of the blood tests; 2) the trial court’s finding that appellant was the biological father; 3) a monetary award barred by the statute of limitations and made to a third person, not a party to the law suit; 4) the award for retroactive support as excessive and erroneous; and 5) the award for prospective support as being excessive and erroneous.

Rulings on the Blood Tests and Paternity

Promptly after filing his complaint appellant moved the court to order blood tests of both parties and of Landon Bell, specifically requesting Roche Biomedical Laboratories, which had an office in Little Rock and was equipped “for receiving client authorization for drawing blood, taking photographs and protecting the chain of custody of such blood samples and submitting such blood specimens to its main laboratory ... in North Carolina.”

The blood tests were completed by Roche and showed a 99.99 % probability that appellant was the father. When the test results were presented at trial, appellant objected on the ground that pursuant to the requirements of Ark. Code Ann. § 9-19-108 (1987), which outlines the procedures for blood tests, the report from Roche failed to show the person signing the report was qualified. See Boyles v. Clements, 302 Ark. 575, 792 S.W.2d 311 (1990).

It is not necessary that we address appellant’s specific complaint under § 9-10-108 because, as the trial court noted, the finding that appellant was the father of Landon Bell was clearly supported by the preponderance of the evidence irrespective of the blood tests.

Appellee testified that she had been intimate with appellant on several occassions. She said she and appellant had an ongoing affair during the time Landon Bell was conceived; that she had had sexual relations with appellant in September of 1982, though she was unsure of the exact date. Letters from appellant were introduced, one of which read:

First let me say that I’m sorry I know that you have been through quite a lot since I last saw you you’ve been under a lot of pressure you’ve probably been asked all kinds of personal questions and your complete lifestyle has made a big turn and I know that had the situation been different and I was able to be there it wouldn’t be as difficult. And believe me I want to be there, be there to see [Landon]. To be able to hold him admire him and adore him. I mean its pure hell to hear over the phone that you have a beautiful son and yet you can’t see him. Every single day I’m wondering how you and he are getting along. I want to be there, doing what a father is expected, to show my love for you and he, to be a shoulder when you need it, to give my day by day support, to show my love and to provide. But I understand that this is all my doing so I have to be man enough to realize that everything isn’t going to be the way I want it ... .

Defendant’s Ex. 4., Vol. Ill of transcript.

Appellee’s father, Henry Bell, testified that appellant came to visit appellee in the winter of 1983 when Landon was a few months old. Mr. Bell testified that appellant did not directly acknowledge that he was the father, but did so “by virtue of the fact that he told me that I wouldn’t have to worry about [Landon’s] financial future.” Bell said appellant told him he would send something and some weeks later appellant sent Mr. Bell one thousand dollars.

Appellant acknowledged the letters and the relationship with appellee, but contended that at the time he spoke with Mr. Bell he was under the impression the baby was conceived in March or February of 1982, that it was sometime later when he learned the child’s birthdate that he realized he could not be the father. Appellant maintained he was not with appellee anytime during the fall of 1982.

We regard this disputed issue as one of credibility, a matter we leave to the trial court. Considering the record as a whole we could not say the court’s findings on the issue of paternity were clearly against the preponderance of the evidence.

Lying-In Expenses and Statute of Limitations

As his third point appellant argues the trial court erred in awarding damages to Henry Bell, who was not a party to the suit, and, alternatively, that the damages were barred by the statute of limitations.

Appellant argues that any debt due Henry Bell for the 1983 lying-in expenses are debts not in writing and, therefore, barred after three years under Ark. Code Ann. § 16-56-105 (1987). In Winston v. Robinson & State, 270 Ark. 996, 606 S.W.2d 757 (1980), this statute was applied to limit support obligations of the putative father to three years. We noted in Winston, that “the bastardy statutes of Arkansas contain no specific statute of limitations” and, therefore, we relied on Davis v. Herrington, 53 Ark. 5 (1890), where, in a paternity case, the three year limit on contracts not in writing was imposed. See also Dozier v. Veasley, 212 Ark. 210, 613 S.W.2d 93 (1981).

However, the Winston opinion was written before Ark. Code Ann. § 9-10-109 (1987) was enacted. Section 9-10-109 provides:

(a) Subsequent to the finding by the chancery court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support costs and attorney’s fees, and directing payments through the clerk of the court.

That directive in § 9-10-109 brings up Ark. Code Ann. §9-14-236 (1987) (Act 1989 No. 525 § 1) affecting procedures and limitations on actions for the support of children born of a marriage:

In all cases where the support of any child or children is involved, an action for the enforcement of child support or for judgment of arrearages shall be limited to ten years prior to the filing of the action.

However, there has always been a distinction between statutes of limitations in paternity proceedings for support and proceedings for the support of children in divorce suits. For the latter, the limitation was five years. See also Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990) (discussing the change in statutes of limitation from five to ten years via § 9-14-236, speaking only in terms of actions on divorce decree support awards.)

This raises the question whether in paternity cases the period of limitation is three years, as held in Davis v. Herrington, supra, and Winston v. Robinson, supra, or, whether under § 9-10-109 and § 9-14-236, a different period of limitations applies. Under either the three-year common law rule or ten-year rule of § 9-14-236, the lying-in expenses are barred in this case. Recovery is obviously barred under the three-year rule, and as to the ten year rule, in Sullivan v. Edens, supra, we said the new ten-year limitation would only apply to payments accruing after the effective date of the statute (1989) and actions which accrued before the effective date would be governed by prior statutes of limitations. Thus, it is unnecessary that we choose between these two limitation periods, because the claim for lying-in expenses incurred in 1983 is barred in any event. We note as well this distinction between the two statute of limitations was not raised or discussed in the trial court. The other contention, i.e., it was error to award judgment to a non-party, is moot.

Retroactive Child Support

Fourth, appellant argues the award for retroactive child support is excessive and contrary to law. Appellant claims it was error for the trial court to apply the 1991 Family Support Guidelines to determine support for years prior to 1991. While we agree with appellant on the law, there is nothing in the record that indicates the trial court determined the amount of support in the manner appellant suggests.

To the contrary, the record shows the awards for previous years were made, in the court’s words, “pursuant to Ark. Code Ann. §9-10-111” and, further, in reaching these amounts it considered “the infant’s need for food, shelter, clothing, medical expenses, child care, standard of living, insurance and based upon the father’s take home pay, finds that Roy C. Green should have contributed to his son’s support as follows.” (Abstract 22-23) The trial court then listed appellant’s salary for the years in question, which varied, and made an award of 8 % of appellant’s salary for each of those years. The 1991 guidelines are not mentioned in the court’s support determination for prior years. It was not until the court addressed prospective support that the 1991 guidelines are mentioned. The chancellor at that point addressed appellant’s current salary in light of the 1991 guidelines and questioned the 13 % reflected in the Support Chart. The chancellor observed that 13 % would be unfair to appellant and fixed the payment at $3,500 a month. We find no merit in appellant’s argument.

Alternatively, appellant argues that the awards for past support should be limited to the reasonable amounts actually expended by the appellee on the child, citing Wilder v. Garner, 235 Ark. 400, 360 S.W.2d 192 (1962), and McCall v. McCall, 205 Ark. 123, 172 S.W.2d 677 (1943). Granted, the mothers in those cases were reimbursed only for expenses incurred, but that was all that was asked for. Nothing in those cases would require us to limit recovery to reimbursement only. Rather, as stated more recently, the question is simply what is fair:

The granting or denial of such a recovery rests upon the equities in a particular case. We have in several cases, recognized the equitable nature of such an award. Thus, in order to find that the chancellor committed reversible error, we would have to hold that his finding as to where the equities lay was against the preponderance of the evidence.

Ryan v. Baxter, 253 Ark. 821, 489 S.W.2d 241 (1973).

We disagree that the trial court was limited to amounts actually expended for past support and appellant has not demonstrated how the amounts awarded are against the preponderance of the evidence.

Prospective Support

Appellant challenges the trial court’s award for prospective support. As mentioned, the trial court referred to the 1991 Child Support Chart and found that within appellant’s income bracket, the monthly support award for one dependant would be 13 % of appellant’s salary. The trial court further found that 13% was excessive and instead ordered payments of $3,500 a month, approximately half the amount payable under the chart for appellant’s earnings.

The arguments on this point are conclusory and we are given no supporting authority. Arkansas Code Ann. § 9-12-312 (1987) states that the amount listed in the most recent family support chart is a rebuttable presumption for the award of child support. Appellant has failed to rebut and we are unpersuaded by the argument.

Finally, appellant urges that the award of an attorney’s fee of $40,000 was an abuse of the court’s discretion. He recognizes that the court has broad discretion to award attorney’s fees, Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987), but maintains that the award is excessive. We stated our rule in Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979):

Appellant objects to the attorney’s fee allowed in this case on two bases. First, he says there is absolutely nothing in the record to afford an objective standard on which the trial court could assess and determine the amount of the fee, and urges that we treat fees arrived at in such a “haphazard” fashion from a subjective viewpoint by the chancellor as erroneous. We decline to accept this invitation. We have repeatedly held that the award of attorney’s fees in divorce cases is a matter lying within the sound judicial discretion of the chancellor, the exercise of which will not be disturbed on appeal in the absence of its abuse. Unless appellant has demonstrated that the amount of fees allowed was excessive, we will affirm. [Cites omitted.]

Appellant has not demonstrated how the fee is excessive and, hence, we will not look beyond the chancellor’s award.

Affirmed as modified.

       This statute was amended in 1991, enlarging the statute of limitations, but under our recent holding in Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992) we can’t consider the application of the 1991 amended statute to this case as pursuant to our holding in Lilly, the “legislature cannot expand a statute of limitation so as to revive a cause of action already barred.” Here, if we were to consider whether the amended statute were applicable to the facts and if we decided in the affirmative, the application of the new statute of limitations would work to revive a cause of action previously barred.


author: David Newbern, Justice.

text:
    Billy DAVIS v. STATE of Arkansas
    CR 91-213
    825 S.W.2d 584
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is a consolidated appeal of a rape conviction and a probation revocation. The appellant, Billy Davis, was convicted of raping a ten year old female victim and sentenced to thirty-five years imprisonment. Prior to the conviction, the Trial Court revoked Davis’s probation from an earlier theft conviction and sentenced him to four years imprisonment. The basis of the revocation was the incident which resulted in the rape charge.

Davis argues the Trial Court erred by (1) refusing to direct a verdict on the rape charge because the State did not introduce sufficient evidence of penetration, as required by Ark. Code Ann. § 5-14-103(1 )(B) (1987), (2) not granting his appointed counsel’s motion to withdraw, (3) failing to hold the revocation hearing and the trial on the same charges simultaneously, (4) refusing to hold the hearing on the motion to suppress his confession before the revocation hearing, (5) not suppressing the confession he contended to have been given involuntarily, (6) failing to direct a verdict on the petition to revoke, given the State’s failure to introduce sufficient evidence of penetration and the impropriety of revoking probation on the lesser included offense of sexual abuse in the first degree, and (7) allowing the State to proceed to trial on the rape charge after finding no penetration during the revocation hearing in violation of the law of the case doctrine.

We affirm the conviction and the probation revocation. The testimony of the victim during trial which established penetration was sufficient evidence to convict. We find no abuse of discretion in the Trial Court’s determination that Davis was indigent and his denial of appointed counsel’s motion to withdraw. Furthermore, we have consistently upheld a trial court’s decision to revoke probation on the basis of a subsequent crime prior to conviction for that crime. Davis has not demonstrated prejudice resulting from the decision to hold the Denno hearing and the revocation hearing at the same time. Although the State did not introduce sufficient evidence of penetration at the revocation hearing, we find no error in the decision to revoke probation on a lesser included offense. The Trial Court did not err by allowing the State to go to trial on the rape charge after finding no penetration during the revocation hearing. The law of the case doctrine is inapplicable in these circumstances.

Davis pleaded guilty to theft of property on October 2,1989, and was placed on three years supervised probation. A condition of Davis’ probation was that he would not commit a felony punishable by imprisonment. On December 18, 1990, the State petitioned to revoke probation because Davis allegedly committed rape, a Class Y felony.

The petition was based on Ark. Code Ann. §5-14-103 (a)(3) (1987) which defines rape as engaging in deviate sexual activity with a person less than fourteen years of age. Deviate sexual activity is defined as the penetration, however slight, of the vagina or anus of one person by any body member of another person. Ark. Code Ann. § 5-14-101(B) (1987). According to the petition, Davis “engaged in an act of sexual gratification involving the penetration of the vagina of a ten year old female child by the fingers of the defendant,” and thereby violated the terms of his probation.

On December 21, 1990, Davis was charged with rape in Lawrence County Circuit Court based on the same facts as those stated in the revocation petition. Val Price was appointed to represent Davis. Price filed a motion to withdraw because he believed Davis was not indigent. Davis posted bond and obtained employment after release. Officers had obtained a signed statement from Davis the morning of December 15th in which he admitted improperly touching the victim. Prior to giving the statement, Davis signed a waiver of rights form.

The Trial Court heard evidence relating to the petition to revoke and the motion to withdraw on March 13th, 1990. Although no formal motion to suppress had been filed, the Trial Court concurrently held a Denno hearing on the voluntariness of the confession. The Trial Court denied Davis’s request that the revocation hearing be held concurrently with the jury trial on the same charge. Davis believed the State intended to rely on his allegedly involuntary confession during the revocation hearing, thus he requested that the Denno hearing be held before the revocation hearing. The Trial Court denied the motion, stating he would determine the voluntariness of the statement as the revocation hearing progressed, and if the statement were found to be involuntary, it would be suppressed.

Evidence relating to Price’s motion to withdraw was presented first. The Trial Court determined Davis indigent and denied Price’s motion to withdraw.

Lester Boggs testified the victim and Davis were staying in his house on December 15th. Boggs said he went to the bathroom about 5:00 a.m. and saw the victim jump out of the bed where Davis and his wife were lying. Boggs then told the victim’s mother what he had observed. The victim testified that Davis and his wife had awakened her and told her to come with them to the front room where they were sleeping. She testified to indecent sexual contact between herself and Davis, but she said penetration did not occur.

Officer J. D. Johnson stated he advised Davis of his rights before taking his statement on the 15th. Davis signed a waiver of rights form at 11:26 a.m. while Davis and Johnson were at Davis’ house. At 11:37 a.m., Davis was given a breathalizer test which showed a .014% blood alcohol content. Davis gave his incriminating statement at 1:50 p.m. at the police station. Johnson testified that although Davis was intoxicated, he understood what he was saying when giving the statement.

Davis testified he told Officer Johnson he did not touch the victim, but he believed the officer threw this statement away. Although Davis’s signature appears at the bottom of the statement, he said he did not make the statements contained in the more incriminating second half. Davis believed the second part of the statement was written in handwriting different from the first part. Johnson stated he wrote the entire statement and read it to Davis before Davis signed it. The State Crime Laboratory determined the statement was written by one person with the same writing instrument.

Davis stated he was intoxicated when he signed the waiver and gave his statement to the police. He said he consumed a large glass of whiskey and Coke late the night of the 14th. Davis also said Johnson told him if he did not sign the confession his children would be taken away and his wife would go to jail. Johnson denied making the threat. During the revocation proceeding, Davis denied any improper sexual contact with the victim and stated he only gave her a massage because she seemed tense.

After hearing the evidence, the Trial Court ruled that at the time the statement was given Davis was not so intoxicated that he did not understand what he was saying, and the statement was admitted. The Trial Court also found the State did not prove penetration which was a necessary element of rape. Probation could be revoked on the lesser included offense of sexual abuse in the first degree which requires only sexual contact. The Court held no prejudice, resulted from the State’s failure to give notice in the petition of the lesser included offense as the basis for the revocation as Davis should have been prepared to defend against any lesser included offense of rape. Although the Trial Court made a finding of no penetration for purposes of the revocation hearing, in response to Davis’s motion for directed verdict, he determined he had no authority to prohibit the State from trying Davis for rape.

At the jury trial on the rape allegation, the victim’s testimony changed dramatically. She specifically stated penetration occurred. She tried to explain her earlier inconsistent testimony by saying she had not understood the body part references in the questions asked. A medical report, was admitted showing the victim had a reddened labia and a tear at the opening of her vagina which was consistent with sexual abuse. The report also indicated the victim had been sexually abused at two years of age. The report stated the victim denied pénetration occurred. Davis’s testimony remained unchanged. He again denied any improper contact with the victim and stated he only gave her a massage. The Trial Court denied Davis’s motion for directed verdict, stating conflicts in testimony went to the weight and credibility of witnesses.

1. Sufficiency of the evidence

Davis first argues the Trial Court erred by not granting his motion for directed verdict on the rape charge because there was insufficient evidence of penetration. On appeal from a denial of a directed verdict, we view the evidence in the light most favorable to the party against whom the verdict is sought and affirm if there is any substantial evidence to support the verdict. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990). Substantial evidence has been defined as being of sufficient force and character to compel a conclusion one way or the other, forcing the mind to pass beyond suspicion or conjecture. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987).

We have held the testimony of the victim which shows penetration is enough for conviction, Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), and the victim’s testimony need not be corroborated to be sufficient. See, e.g., Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982). Inconsistencies in testimony are for the jury to resolve. Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990).

2. Motion to withdraw

The second point is that the Trial Court erred by finding Davis indigent and denying his appointed counsel’s motion to withdraw. Davis testified that based on the conflict between himself and appointed counsel over the motion, he would be prejudiced if counsel were allowed to continue with the case. The standard of review is whether the Trial Court has abused its discretion. Toomer v. State, 263 Ark. 595, 566 S.W.2d 393 (1978).

Nothing in Davis’s argument or abstract demonstrates that Davis was in any way prejudiced by the Court’s denial of Mr. Price’s motion to be allowed to withdraw.

3. Revocation prior to conviction

Davis’s next argument is that the Trial Court erred by not waiting to consider revocation of his probation until after disposition of the rape charge. This argument has consistently been rejected. Revocation on the basis of commission of a crime prior to conviction for that crime is not an abuse of discretion in all circumstances. Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992); Ellerson v. State, 261 Ark. 525, 549 S.W.2d 495 (1977); Barnes v. State, 254 Ark. 404, 494 S.W.2d 711 (1973). Arkansas Code Ann. § 5-4-309(d) (1987) provides a court may revoke suspension or probation at any time prior to the expiration of the period of suspension or probation.

4. Denno hearing prior to revocation hearing

Davis contends the Trial Court erred by not holding the hearing on the voluntariness of his confession prior to the revocation hearing. He relies on Ark. Code Ann. § 16-89-107(b)(1) (1987) which states:

The determination of any fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; the trial court shall hear the evidence concerning the admissibility out of the presence of the jury, and it shall be the court’s duty before admitting the confession into evidence to determine by a preponderance of the evidence that the confession has been made voluntarily.

Davis simply does not indicate how the Trial Court failed to comply with these statutory requirements. Furthermore, he has not shown how he was prejudiced by the Trial Court’s decision to combine the Denno and revocation hearings. The Trial Court said if the statement was found to be involuntary, it would be suppressed immediately. The Court found the statement to be voluntary, and we will not reverse absent a showing of unfair prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied 470 U.S. 1085 (1985).

5. Voluntariness of statement

Davis argues the Trial Court erred by admitting his statement because it was given unknowingly due to intoxication and involuntarily due to a threat. We view these issues by looking at the “totality of the circumstances” displayed by the record. Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991). We will not reverse a Trial Court’s decision with respect to suppression unless it is clearly erroneous. State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982).

The fact that an appellant might have been under the influence of alcohol at the time of his statement, will not of itself, invalidate his confession, but will only go to the weight accorded it. McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988); Kennedy v. State, 255 Ark. 163, 499 S.W.2d 842 (1973). Whether an accused was so incapacitated due to drugs or alcohol that he could not make an intelligent waiver of his rights is a question of fact to be resolved by the trial court. Baker v. State, 289 Ark. 430, 711 S.W.2d 816 (1986). The test is whether the person had sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended it. Kennedy v. State, supra.

Davis signed a waiver of rights form at approximately 11:26 a.m., and he was given a breathalizer test at approximately 11:37 a.m. showing a .014% blood alcohol content. Davis testified he consumed one large glass of whiskey and Coke late the previous night. Officer Douglas testified Davis understood the meaning of his statement. Davis walked into the police station without assistance, and he answered questions without any indication of mental disabilities. Davis also remembered details about the incident. In these circumstances, we cannot say the Trial Court’s decision that Davis had the capacity to waive his rights was clearly erroneous.

As to the alleged threat by Officer Johnson that Davis’s children would be taken away and his wife sent to jail if he did not sign the confession, Johnson’s denial posed a fact question.

The trial court must resolve conflicts in testimony, and we will not reverse unless the decision is clearly erroneous. Patterson v. State, supra; Fuller v. State, 278 Ark. 450, 646 S.W.2d 111 (1983). Davis has failed to show how the Trial Court’s decision to believe Officer Johnson was clearly erroneous.

6. Revocation on lesser included offense

Davis contends the Trial Court erred by revoking probation on the lesser included offense of sexual abuse in the first degree after the State originally notified him in the petition that rape would be the basis for the revocation. He relies on Ark. Code Ann. § 5-4-310(b)(3) (1987) which states “the defendant shall be given prior notice of the time and place of the revocation hearing, the purpose of the hearing, and the condition of suspension or probation he is alleged to have violated.” In the petition, the State specified the condition Davis was alleged to have violated, namely committing an offense punishable by imprisonment.

We have upheld revocations based on lesser included offenses. In Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978), the appellant was charged with committing burglary in violation of a condition of his suspended sentence. The Court recognized the evidence at the hearing was insufficient to show entry into a building. It was sufficient, however, to show the lesser included offense of breaking or entering which itself constituted a violation of the terms of the suspended sentence. See also Felix v. State, 20 Ark. App. 44, 723 S.W.2d 839 (1987).

7. Law of the case

Davis’s last point is that the Trial Court erred by allowing the State to go to trial on the rape charge after finding no penetration during the revocation proceeding. Davis argues the finding of no penetration became law of the case for the subsequent proceedings.

The law of the case doctrine applies only when the evidence at the second proceeding is not materially different from the evidence presented in the first proceeding. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991); See also Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989) (law of the case as applied to admissibility of evidence). As discussed above, the evidence presented during the revocation hearing and the trial was materially different, and the law of the case doctrine is not applicable.

Affirmed.