author: Robert H. Dudley, Justice. David Newbern, Justice,

text:
    Aubrey ELLISON d/b/a Ellison Refrigeration v. Bobby TUBB, Samuel A. Millican, Debra D. Millican and First National Bank of Magnolia
    88-38
    749 S.W.2d 650
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988

      Anderson, Crumpler & Bell, P.A., for appellant.

      Chandler & Thomason, by: Byron Thomason, for appellees.
   Robert H. Dudley, Justice.

On April 6,1979, the governor signed Act 746 of 1979, which modified the materialman’s lien statute to provide that, effective October 1,1979, notice must be given to a landowner before there is a delivery of materials in order for a materialman’s lien to be perfected against the land. See Ark. Stat. Ann. §§ 51-608.1,-608.2, and-608.3 (Supp. 1985) and Ark. Code Ann. § 18-44-115 (1987). On April 23,1979, after the passage of the act but before its effective date, the landowners, appellees Samuel and Debra Millican, entered into a contract with appellee Billy Tubb for construction of a home. Tubb, in turn, later entered into an oral subcontract with appellant Aubrey Ellison to install the heating and air conditioning unit in the home. On June 20, 1979, after passage of the act but still before its effective date, appellant Ellison furnished materials and labor. On October 16, and October 23,1979, after the effective date of the act, he also furnished materials and labor. No materialman’s notice was given to the landowners before the delivery of any materials. The landowners, the appellees, paid Tubb, the contractor, for the house but Tubb did not pay the subcontractor, appellant Ellison. Tubb was subsequently discharged in bankruptcy. The appellant filed suit to perfect his lien. The chancellor found the transaction between the contractor and subcontractor was a single contract to furnish the heating and cooling system. Therefore, the suit for the entire amount was filed within the allowable 120 day period, see Ark. Code Ann. § 18-44-117 (1987). The chancellor further found that the appellant was entitled to a lien only for those materials and labor furnished before the effective date of the 1979 notice act. We affirm.

We first consider the issue raised on cross-appeal, whether the trial court erred in ruling that the transaction was a single contract. Whether a contract is entire or severable is determined from the intention of the parties. Intention may be ascertained from the subject matter of the contract, the circumstances of the transaction, and the language of the parties. Jones v. Gregg, 226 Ark. 595, 293 S.W.2d 545 (1956). When, as in this case, the parties probably never thought about whether their contract was entire or severable, and there were periodic payments, a court must determine whether there were periodic payments under one contract, or whether there were several different contracts with each contract calling for full payment at its completion.

17 Am. Jur. 2d, Contracts § 325 (1964) provides in pertinent part:

As a means of ascertaining the intention of the parties, various tests have been adopted. According to some authorities, the criterion is to be found in the question whether the quantity, service, or thing as a whole is of the essence of the contract. If it appears that it is to be performed only as a whole, the contract is entire. Thus, the best test is said to be whether all of the things, as a whole, are of the essence of the contract: that is, if it appears that the purpose is to take the whole or none, the contract is entire; otherwise, it is severable. Another test supported by a number of authorities is that a contract is entire when, by its terms, nature, and purpose, it contemplates that each and all of its parts are interdependent and common to one another and to the consideration, and is severable, when, in its nature and purpose, it is susceptible of divisions and apportionment, and has two or more parts in respect to matters or things contemplated and embraced by the contract which are not necessarily dependent upon each other.

Determining the intention of the parties is an issue of fact, and we affirm a chancellor’s finding of fact unless it is clearly against the preponderance of the evidence. ARCP Rule 52(a). The facts reveal the following.

There was no written instrument to be construed, and the primary evidence regarding the nature of the agreement between appellant, the subcontractor, and Tubb, the contractor, came from the testimony of the appellant. Tubb did not testify. A part of appellant’s testimony is fairly abstracted as follows:

My deal with Bobby Tubb was that Tubb would call and tell me to air condition the house, usually if it was a heat pump or gas. If we had gas, we normally used gas. If we didn’t have gas, we normally used a heat pump; but he would tell me what to use in each case. He didn’t tell me what size to use. He would give me a set of plans. He didn’t take bids with anybody else at this point. I don’t know of any other bids. He didn’t know what size unit I was going to put in there nor the exact price. He would give me the floor plan and tell me to put the job in. He asked that I bill him as I did the work. We stock equipment. At that time I was stocking heavier than I am now; usually in the neighborhood of $40,000.00 worth of equipment in the building so I took equipment out of my stock and put it on the job. I hadn’t special ordered anything in all probability. He told me to do the whole job so when I went out there the first job and did the first part of it, I had already been asked to do the rest of it.

Some other parts of appellant’s testimony seem contradictory to the concept that he and Tubb intended for him to do the whole job, but, taken as a whole, we cannot say the chancellor’s ruling was clearly against the preponderance of the evidence. Therefore, we affirm the holding that the transaction was one entire contract, and the lien proceeding was timely filed.

On direct appeal the appellant argues that Act 746 of 1979, as applied by the chancellor, is a law which impairs the obligation of this contract in violation of article 2, section 17 of the Constitution of Arkansas and article 1, section 10 of the Constitution of the United States. The argument, in summary, is as follows:

a. The entire transaction was a single contract.
b. When the contract was entered into, which was before the effective date of the act, no preliminary notice was required for the remedy of perfecting a lien.
c. Before the contract was finished, but after the effective date of the act, Act 746 required a materialman to give the preliminary notice in order to perfect a lien.
d. The chancellor applied the act to that part of the contract which was performed after the effective date of the act.
e. Thus, the act, as applied, impaired vested rights under the contract in violation of the state and federal Constitutions.

In Robards v. Brown, 40 Ark. 423 (1883), in discussing the federal constitutional prohibition against passing laws which impair contractual obligations, we wrote:

The laws which are in force at the time when, and the place where, a contract is made and to be performed, enter into and form part of it. This is only another mode of saying that parties are conclusively presumed to contract with reference to the existing law. The Constitution forbids all laws, alike, which affect the validity, construction, discharge and enforcement of contracts. The State may change legal remedies, forms of action, of pleading and of process, the times of holding courts, etc., and may shift jurisdiction from one court to another. And such changes may have the incidental effect of delaying the collection of debts. But the Legislature cannot, under the guise of legislating upon the remedy, in effect, impair the obligation of contracts. The idea of right and remedy are so intimately associated as often to be inseparable. Now any legislation which deprives a party of a remedy substantially as efficient as that which existed at the making of the contract, does impair its obligatory force.

In Padgett v. Bank of Eureka Springs, 279 Ark. 367, 651 S.W.2d 460 (1983), we quoted with approval the following paragraph from 16A Am. Jur. 2d Constitutional Law § 675 (1979), discussing the difference between the impairment of a vested right and a remedy or mode of procedure:

Although the distinction between remedial procedures and impairment of vested rights is often difficult to draw, it has become firmly established that there is no vested right in any particular mode of procedure or remedy. Statutes which do not create, enlarge, diminish, or destroy contractual or vested rights, but relate only to remedies or modes of procedure, are not within the general rule against retrospective operation. In other words, statutes effecting changes in civil procedure or remedy may have valid retrospective application, and remedial legislation may, without violating constitutional guarantees, be construed ... to apply to suits on causes of action which arose prior to the effective date of the statute .... A statute which merely provides a new remedy, enlarges an existing remedy, or substitutes a remedy is not unconstitutionally retrospective. . . .

At the time the parties entered this contract, Act 746 of 1979 was in existence and was to become effective October 1, 1979. The parties are “conclusively presumed” to have contracted with reference to the existing law. Robards v. Brown, 40 Ark. 423 (1883). Thus, it must be presumed that they contracted with reference to Act 746, and that the appellant was aware of the new procedure to perfect a lien.

In addition, the act did not impair the validity of vested rights in the contract itself. The contractual obligations were just as valid after the act became effective as they were before it became effective. The act merely substituted the procedure to be followed in perfecting the lien, and did not substantially deprive a materialman of the remedy of a materialman’s lien.

Accordingly, the act did not unconstitutionally impair vested rights under the contract, and we affirm the trial court’s ruling that the appellant had to give notice after the effective date of the act in order to perfect a lien.

Newbern, J., concurs.

David Newbern, Justice,

concurring. The majority opinion is correct in stating that the failure to comply with the notice requirement of Act 746 of 1979 had no effect on Mr. Ellison’s rights established in his contract with Mr. Tubb. There was no need for the trial court to consider whether the contract was severable, and thus there is no need for us to consider it. The issue the appellant should have addressed is whether any constitutional provision or other law prevents the notice requirement from taking effect with respect to materials furnished on a job begun before the law went into effect. To the extent Ellison may have a lien, it is created by statute and not by his contract with Tubb.

The basis of the materialman’s lien claim is Ark. Code Ann. § 18-44-101(a) (1987). I find nothing in that statute indicating that a lien which may accrue at the beginning of any particular job, contract, or project, is “unseverable.” In pertinent part the statute provides, “Every . . . person . . . who shall. . . furnish any material. . .for any building . . . under any . . . contract with the owner . . . or his . . . contractor . . . upon complying with the provisions of this subchapter, shall have, for his . . . materials . . . furnished, a lien upon the building . . . and upon the land belonging to the owner. . . .” The “provisions of this subchapter” were changed by Act 746, now codified at Ark. Code Ann. § 18-44-115(a) (1987), and thus, in my view, compliance with that section was necessary with respect to “any material” furnished after it became the law.

I fully concur in the result reached by the majority opinion, but I would delete the discussions of the singleness of the contract and impairment of contract, as I find them unnecessary.


source: Caselaw Access Project

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

license: Public Domain

text:
    OTTER CREEK DEVELOPMENT COMPANY, an Arkansas Limited Partnership v. Vernon C. FRIESENHAHN d/b/a Friesenhahn Development Company
    87-290
    748 S.W.2d 344
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988
    [Supplemental Opinion on Denial of Rehearing June 6, 1988.]

      Bridges, Young, Matthew, Holmes & Drake, by: Jack A. McNulty, and Of Counsel Friday, Eldredge & Clark, by: Robert V. Light, for appellant.

      Griffin Smith and Homer Tanner, for appellee.

       Hickman and Hays, JJ., would grant rehearing. Purtle, J., not participating.

   Robert H. Dudley, Justice.

The only issue we need to decide is whether an option to purchase real estate violates the rule against perpetuities.

In 1971, the appellant, Otter Creek Development Company, a domestic limited partnership, was formed for the purpose of investing in and developing a tract of land at the then proposed junction of Interstate Highway 30 and Interstate Highway 430 in south Pulaski County. Otter Creek acquired a large tract of land and, on March 23, 1981, gave an option to purchase six of the acres to appellee Vernon C. Friesenhahn d/b/a Friesenhahn Development Company. The option grants appellee one year in which to purchase the six acres, and the option is renewable annually by payment of a specified sum. There is no limit on the number of years the option can be renewed. The option further provides that it is binding on the heirs, successors, and assigns of the parties. The option provides that it will be terminated automatically if not exercised within 90 days from the date that appellee Friesenhahn receives notice from Otter Creek that a building permit is available from the City of Little Rock. The appellee has renewed the option each year and filed a declaratory judgment proceeding asking that his option be declared valid. The trial court declared the option valid. We reverse because the option violated the rule against perpetuities.

We have held that a repurchase option contained in a deed is subject to the rule against perpetuities, Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984), but we have never before decided whether an independent option to purchase is subject to the rule. We now hold that an independent option to purchase real estate is subject to the rule against perpetuities. One reason for the holding is that we look upon independent options to purchase real estate as creating future interests depending on the contingency of the exercise of the option. This position has been taken by all but one of the courts which considered the issue. See Annotation, Independent Option to Purchase Real Estate as Violating Rule Against Perpetuities or Restraints on Alienation, 66 A.L.R.3d 1294 (1975), and J. Gray, The Rule Against Perpetuities § 330 (4th ed. 1942).

The issue then becomes whether this independent option violates the rule against perpetuities. The Constitution of Arkansas forbids “perpetuities,” but it does not describe them. Ark. Const, art. 2, § 19. The description comes from common law. Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984). Common law describes the rule against perpetuities as a rule which prohibits the creation of future interests or estates which by possibility may not become vested within the life or lives in being at the time of the effective date of the instrument and 21 years thereafter. Id. The agreement now before us provides that the appellee, the optionee, or his heirs or assigns can exercise the option over an unlimited number of years, subject only to automatic termination if the option is not exercised within 90 days of the availability of a building permit, if ever that condition occurs. It is clear that on the date the instrument was signed there existed a distinct possibility that the specified contingency might not occur until after expiration of the life or lives in being plus 21 years.

By quoting one sentence from a federal district court case, the appellee argues that the rule is not violated when the contingency, as in this case, is capable of vesting in lives in being plus 21 years. The argument is clearly contrary to our settled law. In Comstock v. Smith, 255 Ark. 564, 566, 501 S.W.2d 617, 618 (1973), we wrote, “The interest must vest within the time allowed by the rule. If there is any possibility that the contingent event may happen beyond the limits of the rule, the transaction is void.” In the case before us the contingent event may happen beyond the limits of the rule. Therefore, the option is void. The dissenting opinion would retroactively overrule Comstock v. Smith and decide this case on a basis neither pleaded nor asked below or in this Court. Comstock v. Smith was decided in 1973 and has now become a rule of property. This Court should rarely overrule an earlier decision when the decision has become a rule of property. Gibson v. Talley, 206 Ark. 1, 174 S.W.2d 551 (1943); Fisher v. Cowan, 205 Ark. 722, 170 S.W.2d 603 (1943); Town of Pocahontas v. Central Power & Light Co., 152 Ark. 276, 239 S.W. 1 and 244 S.W. 712, appeal dismissed, 260 U.S. 755 (1922). Even if we should decide to overrule a rule of property, we could not do it retroactively, but could only give a caveat for the future. O’Brien v. Atlas Finance Co., 223 Ark. 176, 264 S.W.2d 839 (1954). We choose not to overrule the rule of property.

Reversed and remanded for entry of a decree consistent with this opinion.

Hickman and Hays, JJ., dissent.

Purtle, J., not participating.

Steele Hays, Justice,

dissenting. While I am tempted to join the majority and avoid the labyrinth of the Rule Against Perpetuities, I think it is a mistake to mechanically apply the Rule on the basis of a perfunctory examination of the option agreement to see if the magic words are there, i.e., “the interest will vest within a life or lives in being plus twenty-one years.” By so doing, the majority opinion ignores pronounced equities present in the case and misses the opportunity to review current trends in the law and, if warranted, adopt improvements to a Rule that has produced considerable criticism.

Why should we think ourselves powerless to do that? As the majority concedes, we are not faced with a specific precedent. Nor are we bound by statutory restraints. The Rule was created by judges and judges have shaped it. Our legislature has never acted on perpetuities. It has been left to the judicial branch to hold the law of perpetuities within the framework of Article 2, § 19 of our Constitution: “Perpetuities . . .are contrary to the genius of a republic, and shall not be allowed. . . .” Thus we are free to apply it literally or modify it as common sense and justice dictate. We did exactly that in Broach v. City of Hampton, 283 Ark. 496, 677 S.W.2d 851 (1984), to which I will refer in a moment.

While there is, I concede, an aura surrounding the Rule Against Perpetuities that seems to render it immune from all but rigid application, it is not as though it has not come under fire, particularly in cases where it is applied blindly and irrespective of the equities. In Haggerty v. City of Oakland, 161 Cal. App. 2d 407, 326 P.2d 957 (1958), for example, a ten year lease to commence upon completion of a building on the premises was declared void under the Rule. The lessor, the City of Oakland, covenanted to proceed immediately with construction and the lease was to commence on the first day of the second month after completion of the building. The court held that completion of the building was uncertain and could conceivably occur later than twenty-one years after a life in being. Professor Barton Leach characterizes the decision as “absurd.” “This result will be considered a reflection on the practical wisdom of courts by all laymen and also by lawyers whose thinking is not dominated by the mystique of the Rule. Editorialists of the California Law Review termed the decision “a startling precedent.”

We are not dealing here with a contingent interest arising gratuitously from a bequest or a testamentary trust, or as a rider to a conveyance of some kind. The option in this case was negotiated at arm’s length between knowledgeable and experienced real estate developers. Both had the benefit of competent legal counsel. More importantly, the appellant corporation, which, by this decision, is now freed of its obligations under the option, sought out the appellee to bargain for the agreement. The appellee, we are told, had an option from Kerr Properties on six acres on U.S. Highway 1-30, a quarter of a mile from the tract now involved, with a major bank as lead tenant for part of that development. The appellant, in order to develop its own holdings adjacent to 1-30, needed to acquire the tract held by the appellee to meet certain requirements of the Arkansas Highway Department for the construction of an exit ramp, essential to the plans of the appellant. Appellant’s general partner approached appellee to release the Kerr option in exchange for the option now before us. Appellee agreed after considerable negotiations and the option agreement was signed by the appellee and the appellant. It called for a purchase price of as much as $40,000 per acre, depending on when the option was exercised. In addition to the surrender of the Kerr option, appellee has paid appellant a total of $20,000 ($5,000 annually for 1981, 1982, 1983 and 1984) and $100 for 1985. The $100 due for 1986 was refused by appellant and appellee filed this suit for declaratory judgment and specific performance.

The agreement provides that the option would terminate if not exercised within ninety days after receipt of notice from the appellant that a building permit was available from the City of Little Rock. It is clear these parties assumed the conditions of the option would occur within a reasonable time. Neither had any other thought in mind, and some indication of the immediacy with which both sides regarded the agreement is evidenced by the fact that this suit had been pending for a full year before it occurred to appellant to raise the issue of perpetuities as a defense. The principle of estoppel ought to apply to this situation, though I confess I find no precedent for that view.

In Broach v. City of Hampton, supra, we upheld an option given to the City of Hampton by Charles and Ann Broach to purchase all or any part of some forty acres of land sold to the Broaches by the city. The option made no attempt to comply with the Rule Against Perpetuities. We hadn’t the faintest knowledge of what the parties intended beyond the naked language of the option, yet here there is a wealth of testimony as to what was intended.

Granted, in Broach there was no provision that the option ran to the heirs or assignees of the optionees, whereas here the agreement contains a clause binding the heirs, successors and assigns of the parties. But we can infer that the parties in this case intended that this option, if not sooner exercised, would lapse within twenty-one years from the death of the appellee. In reality it would have been exercised or lapsed long before that. Such an interpretation would be entirely consistent with what was done in Broach, and would be in harmony with the rule that we strive to interpret instruments so as to sustain their validity rather than to render them void. Interpretations which sustain the validity of instruments are preferred over those which cause them to fail. J. Gray, The Rule Against Perpetuities, § 633 (1915); Boyer, supra § 811 [6] at 75-22; Roemhield v. Jones, 239 F.2d 492 (8th Cir. 1957); Campbell v. Campbell, 313 Ky. 249, 230 S.W.2d 918 (1950), cited with favor in Broach.

Furthermore, such an interpretation has support in a growing trend of cases to use less rigidity in the application of the Rule. A number of states, perhaps ten in all, in an effort to relieve the harsh effects of the Rule, have adopted a “wait-and-see” approach. Its policy is not to alter the length of the period of perpetuities, but to provide that the interest shall be valid if it does in fact vest within the Rule rather than be void if it might possibly vest outside the Rule. The Rule itself remains unchanged. See Dukeminier, A Modern Guide to Perpetuities, 74 Calif. L. Rev. 1867 (1986).

Another innovation employs the doctrine of cy pres, which authorizes judicial reform of an instrument that violates the Rule. See Boyer, supra, § 827 A. Some states use a combination of the two. Id. § 827 C. The American Law Institute in 1978 adopted a form of both. Restatement (Second) of Property, § 1.5 (1983); Jacobs, Rule Against Perpetuities, 19 Santa Clara L. Rev. 1063.

By whatever labels, or by none at all, other courts have followed the lead of California in Wong v. DiGrazia, 60 Cal. 2d 525, 386 P.2d 817, 35 Cal. Rptr. 241 (1963), where the court was willing to look below the surface of an agreement such as the one before us, and determine from a considered, practical standpoint that today’s sophisticated, arms-length commercial real estate transactions ought not to be examined vis-a-vis the Rule Against Perpetuities in the same light as family dispositions of property, which spawned the Rule. See Rodin v. Merritt, 48 N.C. App. 64, 268 S.E.2d 539 (1980); Ryland Group, Inc. v. Wills, 229 Va. 459, 331 S.E.2d 399 (1985). Still others have followed Wong in cases where there was no commercial setting, but rather, the courts made use of Wong’s emphasis on the intent of the parties. See, Byke Const. Co., Inc. v. Miller, 140 Ariz. 57, 680 P.2d 193 (1984); Smerchek v. Hamilton, 4 Kan. App. 2d 346, 606 P.2d 491 (1980).

The case against applying the Rule to options was summed up recently by Prof. Dukeminier, Professor of Law at the University of California:

Subjecting options to the Rule Against Perpetuities has been sharply criticized. Applying the Rule to options permits optionors to escape bad bargains when the land value rises by claiming a Rule violation, and subjects lawyers who draft options to malpractice claims if they do not limit the option’s exercise to the perpetuities period. Because options are commercial transactions, they seldom endure, or are intended to endure, for many years. Options reasonably limited in time pose no threat to the public welfare; in fact, they are useful in facilitating the development of land. No good reason appears why a court should not save an unlimited option to purchase by holding that the parties intended the option to be exercised within a reasonable time, which is necessarily less than twenty-one years.

750 S.W.2d 411

Dukeminier, supra, at 1909.

We should, I believe, construe the agreement as the parties themselves undeniably contemplated and intended, that the option would either be exercised or would lapse within a reasonable time. By so doing we would effectuate the agreement and avoid a construction which violates the Rule.

The rule of property, cited by the majority, has little relevance to this case as I see it. It could hardly be supposed the rule of property gives a party the right to pursue and obtain an option agreement, reap the benefits derived from it, and then successfully repudiate it on the premise that the other party failed to include a provision on the Rule Against Perpetuities. For obvious reasons, the appellant made no such contention here or below.

Hickman, J., joins.

Purtle, J., not participating.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING JUNE 6, 1988

Robert H. Dudley, Justice.

On rehearing, the petitioner contends that the respondent, Otter Creek Development Company, received payments under the terms of an option, and therefore, should not be allowed to assert that the option violated the rule against perpetuities. The contention is without merit. After the respondent refused to accept an option payment, the petitioner filed a suit seeking a judgment declaring that the option was valid. The respondent answered that the option was void because it violated the rule against perpetuities. The respondent may properly assert such a defense. When a deed is invalid because it is contrary to public policy, and therefore void, the grantor is not estopped to assert its invalidity. Chase v. Cartwright, 53 Ark. 358, 14 S.W. 90 (1890); 28 Am. Jur. 2d Estoppel and Waiver § 7 (1966).

Petition denied.

Purtle, J., not participating.

Hickman and Hays, JJ., would grant.

Darrell Hickman, Justice,

dissenting. This case was not about the rule against perpetuities. It was about the conduct of one of the partners and whether he could bind the other partners by his actions.

As a “throw away” argument, the appellant said the agreement violated the rule against perpetuities. Both parties treated this argument perfunctorily in their briefs. However, the majority found the technical legal argument appealing and went off down a false path, ignoring what this case was really about.

The trial court quickly saw through this legal smoke screen and held that the appellants were estopped to void this document, as they should be, having accepted the benefits from it.

The majority did not deal with the estoppel question in its first opinion and does so only indirectly on rehearing. We cannot reverse this trial court’s finding regarding estoppel unless we find it was clearly wrong, because it entailed factual findings. See 31 C.J.S. Estoppel § 163 (1964); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1912); Jones v. Burks, 110 Ark. 108, 161 S.W. 177 (1913); Lary v. Young, 13 Ark. 401 (1853); see also A.R.C.P. Rule 52(a).

The case of Chase v. Cartwright, 53 Ark. 358, 14 S.W. 90 (1890), cited in the majority opinion on rehearing, is not on point or controlling.

This case was incorrectly decided and I would grant the rehearing.

       Leach, “Perpetuities in Perspective: Ending the Rule’s Reign of Terror,” 65 Harv. L. Rev. 721 (1952). See Boyer, Perpetuities Trend: "Wait and See," "Cy Pres," and Other Modifications, in 5A R. Powell, The Law of Real Property § 827G at 75A-40 (rev. P. Rohan 1987) (Bibliography).

       Leach, supra note 1, at 1318.

       Note, Rule against Perpetuities: Application to a Lease to Commence Upon Completion of a Building, 47 Calif. L. Rev. 197 (1959).

         $30,000 per acre if exercised during 1981, $35,000 if exercised during 1982, $40,000 if exercised during 1983 or thereafter.

       The option was given to the city without limitation to buy “all or any part of the above-described 43.15 acre tract that [it] might use in the future for the city sewer system.” [Our italics].


author: Steele Hays, Justice.

text:
    Barbara McKENZIE v. TOM GIBSON FORD, INC.
    87-363
    749 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988

      Jimmie G. Dunlap, for appellant.

      Rieves & Mayton, by: Elton A. Rieves IV, for appellee.
   Steele Hays, Justice.

Barbara McKenzie filed this action for conversion against Tom Gibson Ford, Inc., claiming compensatory and punitive damages for the alleged conversion of a check for $500 intended as a down payment on the purchase of a truck. At the close of Ms. McKenzie’s case, Gibson asked for a directed verdict on the grounds that Ms. McKenzie had failed to make a prima facie showing of conversion, had failed to prove conduct by Gibson which would entitle her to punitive damages and had failed to show that she suffered compensatory damages. The motion was denied, but at the close of the case, Gibson renewed its motion, and a directed verdict for the defendant was granted.

Ms. McKenzie has appealed, alleging three points of error: 1) The trial court erred in directing a verdict in favor of Gibson on the issue of damages; 2) the trial court erred in directing a verdict on the issue of punitive damages; and 3) the trial court erred in denying a motion in limine. We agree with the first two points.

Stating the facts most favorably to Ms. McKenzie, against whom the verdict was directed, in January, 1986, she visited Tom Gibson Ford as a prospective purchaser. The truck she liked had been sold but a salesman, Mr. Graham, offered to find one to her liking and he took a credit application and a check for $500 as “earnest money” to serve as a down payment. The understanding was that Ms. McKenzie’s check would be returned to her “if the deal fell through.”

A few days later Mr. Graham called Ms. McKenzie to tell her she would need $1,500 rather than $500 as a down payment and after thinking it over a day or two she decided to look elsewhere. She asked that her check be returned and Mr. Graham promised to mail it that day.

When the check was not forthcoming Ms. McKenzie inquired at her bank and discovered that the check had been presented and paid to Ford Motor Credit Company and applied to an account of her son, whose note she had co-signed. One of the installments was some fourteen days delinquent at that point in time.

Ms. McKenzie testified she contacted Mr. Graham and Mr. Murray, the credit manager. She said she was treated rudely and her requests for assistance in recovering her $500 were rejected. She was told, she said, to get herself a lawyer and Mr. Murray suggested to her that her son had intercepted the check and delivered it to Ford Motor Credit. This testimony was disputed by Messrs. Graham and Murray. Mr. Graham insisted he mailed the check to Ms. McKenzie. Neither witness had any explanation for how the check came into the hands of Ford Motor Credit. When Gibson refused to refund her deposit, Ms. McKenzie filed suit for conversion seeking compensatory and punitive damages.

I

The Directed Verdict on Compensatory Damages

Before dealing with the merits of Point I, we must dispense with a contention by Gibson that Ms. McKenzie has failed to assign error to the directed verdict on the issue of conversion. The problem exists, we believe, because it is not at all clear whether the trial court in the end was ruling that the plaintiff had failed to prove conversion or, having proved conversion, failed to prove that she was legally damaged as a result. At the close of the plaintiff’s case the trial court properly denied a motion for a directed verdict on the issue of conversion and at the close of the defendant’s case the motion was renewed. During a lengthy discussion the trial court clearly recognized that a factual issue existed as to conversion. He ruled unequivocally on the matter of punitive damages, but never clearly on conversion, and we resolve that doubt in favor of the party against whom the verdict was directed. There is no indication the appellee has been misled by the appellant’s points of error and we are unwilling to rule on an ambiguous record that Ms. McKenzie has abandoned the issue of conversion, which would render the appeal meaningless.

The motion for a directed verdict was grounded on an absence of proof that Gibson converted Ms. McKenzie’s funds to its own use. It is not essential to conversion that it be for the use of the alleged converter. Conversion is any distinct act of dominion wrongfully exerted over property in denial of, or inconsistent with, the owner’s right. First National Bank of Brinkley v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984); Thomas v. Westbrook, 206 Ark. 841, 177 S.W.2d 931 (1949). “The conversion need not be a manual taking or for the defendant’s use: if the defendant exercises control over the goods in exclusion, or defiance, of the plaintiffs right, it is a conversion, whether it is for his own use or another’s use.'’’’ (Our italics). Big A Warehouse Distributors, Inc. v. Rye Auto Supply, Inc., 19 Ark. App. 286, 719 S.W.2d 716 (1986). “Perhaps the most common way in which conversion is committed is by an unauthorized transfer or disposal of possession of the goods to one who is not entitled to them.” Prosser and Keeton on the Law of Torts, 5th Edition § 15 p. 92.

Gibson Ford maintains that because the $500 check was applied to the reduction of an indebtedness for which Ms. McKenzie was liable, she sustained no damage as a matter of law. We reject the proposition. Certainly, as the trial court observed, there was a factual dispute as to whether Gibson returned Ms. McKenzie’s check to her or delivered it to Ford Motor Credit and that issue was for the jury to settle. We need not decide whether Ms. McKenzie’s liability to Ford Motor Credit Company was as a borrower or a guarantor, as in either event, Gibson had no right to deliver her check to Ford Credit in direct violation of the understanding that the check would be returned to her. Gibson has produced no authority supporting the premise that a tortfeasor can escape liability as a converter because the proceeds of his conversion are disposed of in a manner that may ultimately benefit the owner.

We believe the weight of authority is to the contrary and is in accord with our holding in Roach v. Rector, 93 Ark. 521, 123 S.W. 399 (1909). There, Roach, a creditor of Rector, converted goods belonging to Rector, sold them and applied the proceeds to Rector’s indebtedness. On appeal we affirmed a judgment for Rector for conversion, holding that the creditor’s action was impermissible, her recourse being by legal process rather than the commission of a tort.

The exclusive right of an owner of property to decide how he will allocate his funds among obligees was expressed cogently in the early case of Northrup v. McGill, 27 Mich. 234 (1873), cited by Roach v. Rector, supra, and more recently by a California appellate court, Dakota Gardens Apt. Investors v. Pudwill, 142 Cal. Reptr. 126, 75 Cal. App. 3d 346 (1977):

In general, when there is no fraud, and when the law does not forbid, a man may dispose of his own property according to his own ideas of propriety. If he is indebted by note to different parties, he may apply his property to the payment of one, and refuse to apply it to the payment of another, and he may lawfully discriminate in this way, though in doing so he ignores the stronger moral claim resting upon him. This results from the supreme dominion which is involved in the absolute ownership of property.

Nor do we regard Roach v. Rector and the case at bar as distinguishable because Roach was a creditor, whereas Gibson was not. If a creditor cannot escape liability for conversion by applying the proceeds to reduce the indebtedness of the owner, we can see no rational reason why Gibson is entitled to greater deference under the law than a creditor. For that matter, Gibson was not disinterested in the indebtedness to Ford Motor Credit involving Ms. McKenzie’s son, as Ford Motor Credit had the right of recourse against Gibson in the event of default.

II

The Directed Verdict on Punitive Damages

Tom Gibson Ford submits that the recovery of punitive damages is dependent on proof that it intentionally converted Ms. McKenzie’s money, and, it claims, the record is devoid of evidence that Gibson intentionally gave her check to Ford Motor Credit. Oaklawn Bank v. Baldwin, 289 Ark. 79, 709 S.W.2d 91 (1986). But there was evidence that a check in the possession of Tom Gibson Ford came into the hands of Ford Motor Credit Company and the jury could infer that the delivery to Ford Motor Credit was deliberate. That being so, it was for the jury to decide whether punitive damages should be awarded. Shepherd v. Looper, 293 Ark. 29, 732 S.W.2d 150 (1987); Williams v. O’Neal Ford, Inc., 282 Ark. 362, 668 S.W.2d 545 (1984); Olson v. Riddle, 280 Ark. 535, 659 S.W.2d 759 (1983). Ford Motor Credit Company v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). There was also testimony that Gibson refused Ms. McKenzie’s request for assistance in recovering her money, which, if believed by the jury, would support a conclusion that the check was deliberately delivered to Ford Motor Credit. It was, therefore, error to direct a verdict on the issue of punitive damages.

Ill

Motion In Limine

Finally, Ms. McKenzie relies on A.R.E. Rule 408 in contending it was error for the trial court to deny a motion in limine to prevent the introduction of proof that approximately five months after the complaint was filed, Tom Gibson Ford asked Ford Motor Credit to refund Ms. McKenzie’s check for $500, that Ford Motor Credit sent Gibson a check for $500 which was forwarded to Ms. McKenzie’s counsel but was refused. The trial court first upheld the motion but later denied it and permitted the proof to come in over objection.

The law generally permits the evidence of a return of the property to its owner in mitigation of damages for conversion, but only when certain circumstances are present. For one thing, the owner must have accepted the return of the goods [Plummer v. Reevers, 83 Ark. 10, 102 S.W. 376 (1907); Norman v. Rogers, 29 Ark. 365 (1874)], whereas the tender was r ej ected in this case. Also the original conversion must have occurred by mistake, (Restatement of Torts, 2d § 922) and the return must occur promptly after discovery of the mistake, (id.) and before the commencement of an action for conversion (18 Am.Jur.2d, Conversion § 126, p. 236).

Tom Gibson Ford argues such evidence is admissible under Rule 408 if offered “for another purpose, such as proving bias, or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” Among the reasons given by Gibson to support introduction was that the evidence showed a lack of intentional, willful or wanton conduct, a factor relevant to the issue of punitive damages.

A.R.E. Rule 408 is not a blanket prohibition against the admission of all evidence concerning offers to compromise. The rule prohibits the introduction of such evidence when the evidence is offered to prove “liability for, invalidity of, or amount of the claim or any other claim.” It does not prohibit such evidence when introduced for any other reason. Cf. 2D. Louisell & C. Mueller, Federal Evidence §§ 170, 172 (discussing Fed. R. Evid. 408, which contains language very similar to that of our rule). Since this evidence was offered for a purpose other than those prohibited, Rule 408 does bar its introduction. That does not mean that the evidence is automatically admissible. Relevance must still be determined under A.R.E. Rule 401 and admissibility under A.R.E. Rules 402 and 403. Cf. 2 D. Louisell & C. Mueller, supra, § 172 (discussing the similar federal rules). Here, as we have noted, the offer occurred after the institution of the suit, a factor which brings it under suspicion. If this were a review de novo, perhaps we should rule under these facts the probative value was so minimal that it was substantially outweighed by the danger of unfair prejudice, and the evidence should have been excluded under Rule 403. However, “[t]he balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge and his decision on such a matter will not be reversed absent a manifest abuse of that discretion.” Wood v. State, 20 Ark. App. 61, 65-66, 724 S.W.2d 183, 185 (1987).

REVERSED and REMANDED.


author:
David Newbern, Justice. Darrell Hickman, Justice,
      David Newbern, Justice. Darrell Hickman, Justice,

text:
    CITY OF BRYANT v. SPRINGHILL WATER AND SEWER SERVICES, INC., Randy Oberlag and Minanur Rahman and First Commercial Bank
    87-251
    749 S.W.2d 295
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988
    [Supplemental Opinion on Denial of Rehearing June 6, 1988.]

      Richard A. Garrett, for appellant.

      Kaplan, Brewer & Miller, P.A., by: Philip E. Kaplan and Silas H. Brewer, Jr., for appellee.

      Holt, C.J., and Hickman, J., concur on rehearing.

   David Newbern, Justice.

The appellant, City of Bryant, brought a condemnation action to obtain a utility, appellee Springhill Water and Sewer Services, Inc., a water and sewer system operated in a city subdivision. The company was owned by appellees Randy Oberlag and Minanur Rahman. Appellee First Commercial Bank held a mortgage. Oberlag and Rahman purchased the utility in 1983 from a bankruptcy trustee for $80,000, some of which was refunded, making their effective cost $54,675. The city filed the action in July, 1986, and deposited $3,000 with the court as prospective compensation, later raising the amount to $10,000. The court entered an order putting the city in possession of the utility on July 17,1986. The bank became a party, seeking foreclosure of its mortgage. The court then ordered the city to deposit $85,000. The money was not deposited. The parties stipulated that the bank was entitled to recover the mortgage obligation from the condemnation proceeds. The bank is thus not a party to the appeal. The city moved to dismiss the action on December 8, 1986, ten days before the compensation issue was to be tried. The motion was denied. The jury awarded Oberlag and Rahman $350,000 for the utility and $25,000 for accompanying real property which was taken. A judgment was entered in favor of Oberlag and Rahman for those amounts less the $10,000 on deposit and the bank’s interest of $61,249.39. We reverse the judgment because the city’s motion to dismiss should have been granted to the extent of allowing it to abandon the condemnation.

In Selle v. City of Fayetteville, 207 Ark. 966, 184 S. W.2d 58 (1944), we considered the questions whether, when, and upon what conditions a condemnation proceeding may be abandoned. We held it was proper for the trial court to have dismissed the City of Fayetteville’s proceeding to condemn land for use as an airport, recognizing the general rule that, absent a statute providing for abandonment, the condemning authority may withdraw anytime “before the rights of the parties have become reciprocally vested.” According to a statute, now codified as Ark. Code Ann. § 14-360-102(b) (1987), the city was to use the procedure applicable to condemnations by railroad companies, now codified at Ark. Code Ann. §§ 18-15-1201 through 18-15-1207 (1987). Section 18-15-1207 provides that if payment has not been made for the condemned property within thirty days after assessment, the railroad company forfeits its rights in the premises. Based on that section, we held that the City of Fayetteville had an option to abandon its condemnation action anytime before it paid and up until thirty days after the court had assessed the value of the land to be taken.

Our holding in the Selle case does not apply here, as neither the statutes permitting the exercise of eminent domain by a municipality, Ark. Code Ann. §§ 18-15-301 through 18-15-308 (1987), nor the statutes specifically permitting a city waterworks authority to condemn a property for use as a waterworks, Ark. Code Ann. §§ 18-15-401 through 18-15-410 (1987), refer to the railroad condemnation statutes or any other procedure. We thus cannot apply the conclusion reached in the Selle case that the city has up until thirty days after the award to abandon the condemnation. Obiter dictum in the opinion is, however, persuasive and useful in deciding the case before us now.

Our discussion of the general “reciprocal vesting” rule in the Selle case included references to “the majority. . . holding that the rights of the parties are not vested until the amount of the award is paid, or the land is taken, while in some jurisdictions the confirmation of the award by the court vests the rights of the parties and precludes discontinuance.” 207 Ark. at 970, 184 S.W.2d at 61. We held in Rowley v. Arkansas State Highway Commission, 242 Ark. 419, 413 S.W.2d 876 (1967), that the highway department could not amend its condemnation complaint to seek less land than originally sought because a statute, now codified as Ark. Code Ann. § 27-67-315 (1987), provided, “Immediately upon the making of the deposit provided for . . . title to said lands in fee simple . . . shall vest in the persons entitled thereto. . . . (Emphasis by the court.)” Thus, as had been suggested in the Selle case, we regarded the title-vesting point as the point of no return.

The statute dealing with condemnation of waterworks property by a municipal authority, Ark. Code Ann. § 18-15-404 (1987), provides:

(a) At the trial of the cause, a jury shall assess the amount of damages the applicant shall pay for the property taken in the proceedings.
(b) Thereafter, a judgment shall be entered stating that title to the property shall vest in the applicant upon payment to the clerk of the court o/the amount of damages so assessed. (Emphasis supplied.)

Given the fact that there had been no “reciprocal” or other vesting of title at the time the city sought to dismiss its condemnation proceeding, the dismissal of the city’s condemnation claim should have been allowed, but the court should have retained jurisdiction of the matter to consider damages to compensate the appellees for the temporary deprivation of their property. In the Selle case we wrote:

Now while the authority to dismiss such proceedings exists until the rights of the parties have reciprocally vested, ... the condemnor is liable for any damages occasioned by the deprivation of any use of the land to which it would prudently have been put, . . . until the notice is given that it [the “option” to take] will not be exercised. [207 Ark. at 971, 184 S.W.2d at 61]

We remand the case to the trial court for orders consistent with this option.

Reversed and remanded.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I would reverse the decision for other reasons, but I would not allow the city to dismiss its action after it had taken the property.

750 S.W.2d 61

The power of eminent domain is awesome. Private property owners who have been subjected to the arbitrary and often abusive use of this power can attest to that. The courts have always liberally interpreted the law to favor the use of that power. Abuses of the power are often overlooked in the name of “progress,” or some other misguided concept of our society. Columbia County Rural Development Authority and the City of Magnolia, Arkansas v. Hudgens, 283 Ark. 415, 678 S.W.2d 324 (1984); Young v. Energy Transp. Systems Inc. of Ark., 278 Ark. 146, 644 S.W.2d 266 (1983); Neisen v. Carroll Electric Corp., 264 Ark. 881, 575 S.W.2d 686 (1979).

Taking property is one thing. Now the majority has liberally interpreted the law to allow a government agency to cancel a taking of property after it has realized it might be costly and a jury of fairminded men would decide the value of the property. I would not liberally interpret the law to favor such an abusive use of the power.

Surely attorney’s fees will be a part of the damages suffered by these property owners because of the wrongful use of the power of eminent domain.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING JUNE 6, 1988

David Newbern, Justice.

The appellees seek rehearing on the ground that our opinion fails to follow Missouri Pacific Ry. Co. v. Huggins, 253 Ark. 309, 485 S.W.2d 723 (1972), which the appellees cited in their brief. They contend that we have overruled that case without citation or discussion of it.

In the Huggins case, the railroad instituted condemnation proceedings against land adjacent to its right-of-way for the purpose of removing a large protruding rock which threatened to fall on the right-of-way. After the order of entry, the railroad entered the land and removed the rock. It then sought to dismiss the condemnation proceedings subject to any damages the landowner had sustained. We wrote:

We hold that when a railroad posts bond, obtains an order of taking, enters upon the property and completes its work, it is obligated to pay just compensation based upon the difference in fair market value before and after the taking. This is based on the rule that fundamental fairness dictates that there should be a point at which the railroad cannot turn back and escape the payment of full compensation based on a taking. [Citations omitted].

We did not cite the case because we regard it as unique and, like Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944), which we cited for general language but carefully distinguished, the Huggins case is one to which the railroad condemnation statutes would apply rather than the waterworks condemnation statutes. We noted in the Huggins case that the condemnation proceedings there were to add the land on which the rock was situated to the railroad right-of-way, and that the damages were to be “based upon” the difference in the value before and after the right-of-way taking as opposed to the market value of the land taken. The fee title to the land was apparently not to change hands. There was not to be a “reciprocal vesting” of fee title at any point. The railroad had entered the land and “completed] its work.” Unlike this case, there was nothing for the railroad to give back to the owner of the property upon the abandonment of the condemnation proceeding. The railroad’s purpose in obtaining right-of-way had been completely accomplished. Had the railroad succeeded in dismissing the condemnation proceeding, it would have, in effect, obtained its right-of-way, having to pay only the difference in the value of the land before and after removal of the rock rather than the difference in value “based on” a taking. The same “fundamental fairness” considerations would apply here, if the situation were the same, but it is not. The Huggins case has not been overruled.

Rehearing denied.

Holt, C.J., and Hickman, J., concur.

Darrell Hickman, Justice,

concurring. The appellees on rehearing have prompted the majority to expand its decision justifying the city’s action in withdrawing from its abusive use of the power of eminent domain.

Each generation of judges has taken the side of government over that of the individual owner of private property, forgetting that as time goes on exploitation of land and property by the government and its agencies should stop.

In this case the city took the water company, fired its employees, ran the water works for five months, and then walked out. Fairness under our decision in Missouri Pacific Railroad Co. v. Huggins, 253 Ark. 309, 485 S.W.2d 723 (1972), dictates that we not permit the city to cancel the taking.

Holt, C.J., joins the concurrence.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    James Dean GAGE v. STATE of Arkansas
    CR 87-215
    748 S.W.2d 351
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988

      Phil Barton, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jollijf, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, James Dean Gage, was convicted on two counts of sale of marijuana and one count each of possession of marijuana with intent to deliver, possession of methamphetamine with intent to deliver, and being a felon in possession of a firearm. He was sentenced as an habitual offender to 37 years imprisonment. His sole argument is that a witness was allowed to give hearsay evidence against him. We conclude that even if the evidence in question were hearsay, it would not justify reversal of the conviction in view of the overwhelming evidence of guilt.

An undercover state police investigator testified he purchased marijuana from Gage on two occasions at Gage’s residence. The Sevier County Sheriff testified he and other officers went to the Gage residence with a search warrant. They searched the house and found there the drugs and firearms which were seized. Gage and a woman were at the house when the search took place. The state produced some 74 exhibits including the drugs mentioned above, various containers and drug paraphernalia, weapons such as brass knuckles and numb chucks, and a number of rifles and pistols which, with the exception of one pistol, were loaded when found, and extra ammunition. Gage did not challenge the introduction of these exhibits except to ask chain of custody questions on cross-examination.

The alleged hearsay occurred when the sheriff testified on redirect examination that when the officers were on their way to Gage’s house to execute the search warrant they stopped a truck and found a person in the truck in possession of drugs. The sheriff testified the occupants of the truck had been to Gage’s house just before the truck was stopped. On cross-examination, the sheriff was asked if he had learned the truck was coming from Gage’s residence from someone other than Gage, and he said he had. Gage’s counsel asked that this testimony of the sheriff be stricken as hearsay.

We will bypass the state’s argument that the statement was not hearsay, that if error occurred it was invited, and that there was no timely objection. We need not consider these arguments because the other evidence against Gage was so overwhelming, and we have held that even an error of constitutional proportions will not require reversal if it is harmless beyond a reasonable doubt. Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986). Gage has not demonstrated that, given error in the admission of the testimony, prejudice resulted, in view of the overwhelming nature of the other evidence against him. See Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 108 S. Ct. 202 (1987); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The recent cure-all theory that “the evidence of guilt is overwhelming” is a blight and parasite on the laws and the Constitution. In street language it is a “cop-out.” It is a cancer which should be exorcised here and now. It is a step away from our traditional claim to be a nation of laws.

This dissent is not entirely triggered by this particular decision. In fact the majority opinion relies upon the case of Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986) stating: “We need not consider these arguments because the other evidence against Gage was so overwhelming, and we have held that even an error of constitutional proportions will not require reversal if it is harmless beyond a reasonable doubt.” It is this cavalier attitude which troubles me. Somehow this attitude seems to ignore the constitutional and statutory rights of an accused.

I realize there is another side to every argument. In this case the other side, is no doubt, judicial economy and costs to the state. The simple answer to that argument is to do it right in the first place. If a trial is conducted correctly (I do not mean perfectly), there is no waste of taxpayers’ money or judicial resources, and, most importantly, no excuse to utter the hollow words — “the evidence of guilt is overwhelming.”

An error as serious as a confession obtained by chicanery or even torture could be ignored under this theory. Constitutional rights are admittedly ignored by the courts if in the opinion of the court (serving as super-jurors) the accused is guilty. Indeed a society that trades a little liberty for/a little order will deserve neither and will lose both.

I almost forgot to mention the point which I consider reversible error. The sheriff gave hearsay and conclusory testimony that the sheriff's department had found drugs in a vehicle which was coming from the appellant’s house. The sheriff had no personal knowledge that the vehicle had in fact even been at the appellant’s house. It was coming from the direction of the appellant’s residence and the vehicle had drugs in it. That is all the sheriff should have been allowed to state. The testimony as given leads to but one conclusion — the sheriff, no doubt an influential man, believed the appellant sold these drugs.

How can anyone be so certain that the jury might not have reached a different result had they not had the sheriffs opinion before them that the appellant had indeed sold these drugs? Without this opinion the sheriffs testimony would have essentially been that he went directly to the appellant’s residence where he found neither marijuana growing nor drugs being manufactured, and that he did not know if the vehicle in which the drugs were found had even been to the appellant’s house. This latter version might have had a real impact on jury deliberation. Certainly the proper testimony would have been less harmful and would not have ignored the law.

So long as we label defects in trials as “harmless constitutional error,” there is no incentive on the part of the state or the courts to follow the law or rules of evidence. Unless we insist on at least substantial compliance with the law and the rules, we might as well consider them to be mere guidelines which should be followed during the trial, unless the court or the state thinks it is too much trouble.

This case should be reversed and remanded for a trial which is conducted in accordance with the applicable law and rules.


author: David Newbern, Justice. Jack Holt, Jr., Chief Justice,

text:
    Lonnie MITCHELL v. STATE of Arkansas
    CR 87-155
    750 S.W.2d 936
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988

      Shermer & Walker, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   David Newbern, Justice.

The appellant, Lonnie Mitchell, was convicted of kidnapping, rape, and battery resulting from a single incident. He received separate life sentences on the kidnapping and rape convictions and thirty years imprisonment on the battery conviction. We must reverse the convictions because of error which occurred in the selection of the jury. We will address some of the other points raised for reversal in case they arise upon retrial.

The victim was a young white female who testified that, while driving her car home from her boyfriend’s apartment at 2:30 a.m. on June 4, 1986, she heard a call for help from the vicinity of a car that appeared to be stuck in a ditch. She stopped, thinking someone might have been hurt. A person she later identified as Mitchell, a black man eighteen years old at the time, approached her and asked her to use her car to pull his from the ditch. She declined but offered to take him to the police station. He refused that offer, but he got in her car, after reaching through the opeji window to unlock the door, and gave the victim directions supposedly to the place where he lived. They wound up in a cul-de-sac behind a grocery store where he asked her to engage in sexual intercourse with him. She refused, and he then brutally beat and raped her.

1. Jury selection

In the process of selecting the petit jury, the sole black venireman, Roger Petty, was questioned as follows:

BY MR. BYNUM: Mr. Petty, my name is John Bynum and I’m the Prosecuting Attorney. Where are you employed, please sir?
BY MR. PETTY: Arkansas Power and Light.
BY MR. BYNUM: The Defendant in this case is charged with the crimes of rape, kidnapping and first degree battery. The maximum punishment for rape is life in the penitentiary. Do you think that’s too severe a punishment?
BY MR. PETTY: No.
BY MR. BYNUM: The maximum punishment for kidnapping is life in the penitentiary. Do you think that’s too severe a punishment?
BY MR. PETTY: No.
BY MR. BYNUM: The punishment for first degree battery is a term of years in the penitentiary. Does that give you any problems?
BY MR. PETTY: Huh, urn.
BY MR. BYNUM: Now, Mr. Petty, if you are selected as a member of this Jury and you are satisfied beyond a reasonable doubt that the Defendant committed one or more of these offenses, could you and would you find him guilty?
BY MR. PETTY: I could.
BY MR. BYNUM: Well, would you?
BY MR. PETTY: If I’m selected?
BY MR. BYNUM: And, you are satisfied beyond a reasonable doubt.
BY MR. PETTY: Without a reasonable doubt, yes, I could.
BY MR. BYNUM: And, having done that could you and would you consider sending him to the penitentiary?
BY MR. PETTY: Yes, I could.
BY MR. BYNUM: Well, would you consider that?
BY MR. PETTY: Yes.
BY MR. BYNUM: All right. Now, Mr. Petty, have you read anything in the newspaper or heard anything about this case on the radio?
BY MR. PETTY: No, I haven’t.
BY MR. BYNUM: Do you know anything at all about it?
BY MR. PETTY: No, I don’t because like I said I haven’t read anything about it.
BY MR. BYNUM: Do you have an opinion at this point as to whether or not the Defendant is guilty or is your mind still open on that point?
BY MR. PETTY: My mind is open until I find out the facts.
BY MR. BYNUM: Now, Mr. Petty, if you are selected as a member of this Jury Panel, could you decide the case solely on the basis of the facts that you hear in the Courtroom and the law that the Judge instructs you?
BY MR. PETTY: Yes, I could do that.
BY MR. BYNUM: Okay. Do you think you could give the Defendant a fair trial?
BY MR. PETTY: Yes.
BY MR. BYNUM: Do you think you can give the State a fair trial?
BY MR. PETTY: Yes, I do.

At that point, the inquiry turned to racially oriented questions and was as follows:

BY MR. BYNUM: Now, it is obvious that the Defendant is black in this case and you are also black. Is that going to give you any problem sitting in judgment on a black man who is alleged to have had sexual intercourse with a white woman?
. BY MR. PETTY: No.
BY MR. BYNUM: Do you think that will bother you any? Would there be any pressure on you to find this man not guilty because he’s black and because you’re black.
BY MR. PETTY: No.
BY MR. BYNUM: Do you know any reason why you can’t serve as a member of this Jury Panel?
BY MR. PETTY: No.
BY MR. BYNUM: Pass the witness.

Thereafter, defense counsel asked some questions as follows:

BY THE COURT: Ms. Walker.
BY MS. WALKER: Mr. Petty, if you were on trial today and I was picking a jury for you, do you think you would have the frame of mind that you would want your Jury to have if you were in Lonnie’s shoes? Do you understand what I am saying?
BY MR. PETTY: No.
BY MS. WALKER: Let me say it again. If you were on trial today, instead of Lonnie, and I was picking a jury for you, do you think you would have the openness or the frame of mind that you would want a Jury to have for your case?
BY MR. PETTY: Yes, I do.
BY MS. WALKER: I don’t have any further questions.

Then the following occurred:

BY THE COURT: What says the State?
BY MR. BYNUM: The State will excuse Mr. Petty.
BY THE COURT: Mr. Petty, you’ve been excused. You’re free to go. Thank you.
BY MR. BYNUM: Your Honor, may I state into the record the reason I excused Mr. Petty? I think it may be necessary to do that. I excused Mr. Petty because judging from his demeanor and the manner in which he answered the questions I’m convinced that he was not being truthful and candid in his responses to the questions that I asked him. That’s the reason I excused him.
BY MS. WALKER: Your Honor, I would like in the record that I felt Mr. Bynum was harder on the Juror than he was the other Jurors in his questioning and in his demeanor and he perhaps made the Juror a little more defensive because of his demeanor.
BY MR. BYNUM: Well, that’s my prerogative.
BY MR. SHERMER: [Defense counsel] Your Honor, we’d like to put in the record also that I believe it’s error. I believe he’s the only black on this Jury Panel and for the Prosecutor, for no better reason than that, to exclude him I think was improper.
BY THE COURT: I think it has to be shown that it was based solely on race and for no other reason; and Mr. Bynum has stated his reasons.
BY MR. BYNUM: I think my reason is perfectly justifiable, not being truthful and honest and not being candid in his answers that he gave.
BY MR. SHERMER: Just note our exceptions.
BY THE COURT: All right.

Mitchell contends that the exclusion of the only black juror, leaving an all-white panel, made a prima facie case of discrimination and that the action of the trial court did not rise to the level of a “sensitive inquiry” in these circumstances as is required by the Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986), and ours in Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987) . In response, the state’s brief argues that the trial judge was unconvinced there was discrimination and that the prosecutor “stated his reasons” for excusing Petty. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984), is cited for the proposition that the trial judge is better able to weigh the demeanor of a prospective juror and thus may exercise his discretion in jury selection. While we agree with that general proposition and the applicability of it in cases like the Linell case where the question was whether a juror should have been dismissed for cause, the record here does not show that the trial court made the kind of evaluation, required by the Batson and Ward cases, of the prosecution’s use of its peremptory challenge.

In Swain v. Alabama, 380 U.S. 202 (1965), the Supreme Court held that, to succeed, an allegation of racial discrimination in jury selection must be based upon a “pattern” of discriminatory use of peremptory challenges established by reference to several cases. That holding was superseded by the decision in the Batson case in which the Supreme Court found that the old test placed a “crippling burden of proof’ on a defendant, thus effectively placing the prosecution’s peremptory challenges beyond scrutiny. The Supreme Court recognized that “[a] single invidiously discriminatory governmental act” is not “immunized by the absence of such discrimination in the making of other comparable decisions,” quoting from Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, at 266, n. 15 (1977), which involved selection of the venire.

In the Ward case we summarized the constitutional test applied in the Batson decision as follows:

In Batson, the court held that a defendant who could make a prima facie case of purposeful discrimination shifts the burden to the state to prove the exclusion of jurors is not based on race. This prima facie case may be made by “showing that the totality of the relevent facts gives rise to an inference of discriminatory purpose.” Another way is to demonstrate ‘total or seriously disproportionate exclusion of Negroes from jury venires.’ Another example for making a prima facie case is by showing a “pattern” of strikes, or questions and statements by a prosecuting attorney during voir dire. [293 at 92-93, 733 S.W.2d at 730]

Mitchell made a prima facie case of discrimination in the prosecution’s use of its peremptory challenge to remove the only black prospective juror after questioning him closely on whether his race would affect his vote. Absent inquiry by the court, we have before us no factual determination whether the prosecutor was assuming Mr. Petty could not withstand the racial pressures and thus assuming he could not have been answering truthfully on that subject. The court has a duty to go beyond the prosecutor’s explanation and make a “sincere and reasoned” effort to evaluate its genuineness and sufficiency “in the light of all the circumstances of the trial.” People v. Turner, 230 Cal. Rptr. 656, 726 P.2d 102, 112 (1986).

As was recently noted in Florida v. Slappy, No. 70, 331 (Fla. Sup. Ct., March 10, 1988), the trial judge is not bound by the prosecutor’s statement of reasons, and “[w]hile the reasons need not rise to the level justifying a challenge for cause, they nevertheless must consist of more than the assumption that [the venireman] would be partial to the defendant because of their shared race . . . ,” quoting Batson v. Kentucky, supra, at 97.

Because the trial court accepted the prosecutor’s explanation at face value and made no inquiry, we need not consider the explanation’s validity to decide this case. We must note, however, that the explanation was one which could have been given with respect to any venire person and could be used to screen improper motive. An example of the kind of inquiry and further explanation needed when such a universal reason is given can be found in People v. Charron, 238 Cal. Rptr. 660 (Cal. App. 1987).

We have been concerned with the argument that the peremptory challenge of one potential juror cannot possibly demonstrate a prima facie case of discrimination in the sense of showing a “pattern” of discrimination, not as that term was used in Swain v. Alabama, supra, but as it was used in the Batson case. In United States v. Chalan, 812 F.2d 1302 (10th Cir. 1987), the accused was an American Indian. There were two American Indian venire members and each was peremptorily challenged by the government. The court concluded that one of them was subject to challenge for cause because of a language problem. That left the question whether the peremptory challenge of a single prospective juror of the same minority race as the defendant could violate the standards imposed by the Batson case. The court’s opinion stated the following:

The striking of a single juror of defendant’s race may not always be sufficient to establish a prima facie case. However, using the reasoning as articulated in Batson “that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case," we hold this was done in the instant case even though we are here concerned with only a single juror. Our conclusion comports with the notion that peremptory challenges constitute a practice particularly susceptible to racial discrimination. Such challenges are subject to abuse in part because normally the Government need not state the reasons for its action. If all of the jurors of defendant’s race are excluded from the jury, we believe that there is a substantial risk that the Government excluded the jurors because of their race. Our holding helps to avert that risk by requiring the Government to explain the reasons for its challenges when no members of a defendant’s race are left on the jury. [812 F.2d at 1314. Citations omitted.]

In Pearson v. State, 514 So.2d 374 (Fla. App. 1987), a peremptory challenge had been used to remove the only black member of a jury venire, and no inquiry was conducted or explanation made. The case was remanded for the holding of a hearing to determine whether there was a racially neutral explanation for the exercise of the challenge. The court stated:

Applying Batson, as we must, we recognize that in this case there was only one black member of the jury venire and thus only one prospective black juror was removed by the state. Both Batson and Griffith [Griffith v. Kentucky,_U.S__, 107 S.Ct. 708 (1987)] speak of plural challenges. In one of the cases decided in Griffith, however, there were only two black jurors removed. We see no difference, in terms of the equal protection clause, between the striking of the only one black juror and the striking of the only two black jurors — or the striking of the only three black jurors, or more. As observed by the court in the only case we have found dealing with the striking of the only member of the defendant’s race from the jury, the result is the same regardless of number — no members of the defendant’s race are left on the jury, and the prosecution should be required to explain the reasons for its peremptory challenge when that result occurs. United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir. 1987). [514 So.2d at 376]

We agree with the apparent conclusion of these two courts that, where the use of a peremptory challenge results in exclusion from the jury of all members of the defendant’s minority race, it is not necessary to show exclusion of more than one minority juror of the same race as the defendant to make a prima facie case of discriminatory use of a peremptory challenge, and thus to invoke the “sensitive inquiry” requirement.

The evidence of Lonnie Mitchell’s guilt is overwhelming. He was identified by the victim who described the clothing he was wearing at the time of the assault. The clothing was found in the house where Lonnie Mitchell lived, and he made a statement amounting to a confession. In some such instances we are able to put aside “technical” error by the court and affirm the conviction because, given the overwhelming evidence of guilt, the error was harmless and thus the accused was not prejudiced by the mistake. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). In this situation, however, the guilt or innocence of Lonnie Mitchell and whether his defense was prejudiced is not the sole issue. We are concerned here with prejudice to the system of justice. The possibility that a juror was struck for racially discriminatory reasons is the possibility that the prospective juror concerned, all citizens, and the very system of justice have been deprived of fundamental constitutional protection to which they are entitled.

In Gray v. Mississippi, 107 S. Ct. 2045 (1987), the Supreme Court held that it was improper to have allowed the prosecution to strike for cause a prospective juror who was qualified. The Mississippi Supreme Court had affirmed the conviction because the trial judge had admitted he had required the prosecution to use peremptory challenges against jurors subject to challenge for cause due to their opposition to the death penalty, and thus he was only correcting his previous mistake. In response to the argument that the error was harmless, the Supreme Court stated that “because the impartiality of the adjudicator goes to the very integrity of the legal system, the. . . harmless error analysis cannot apply. We have recognized that ‘some constitutional rights [are] so basic to a fair trial that their infraction can never be treated as harmless error.’ ” The same rationale applies here. The right to a jury selected free of the taint of racial discrimination is so fundamental that it cannot be described as harmless error.

2. Inflammatory photographs

The defense moved to suppress introduction of twenty-one photographs of the victim depicting her injuries. The state introduced only three. One of them was an enlargement showing the swelling of and wounds to the victim’s face. The contention here is that the inflammatory nature of the photographs exceeded their evidentiary value.

While the discretion of the trial judge is not absolute, and we will reverse if large numbers of gory pictures which are only cumulative are introduced, Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), we find no abuse of discretion here. We know that virtually all photographs are enlargements to some degree. We have examined the one enlargement complained of. It has not been shown that it accentuated the injuries of the victim in any prejudicial way.

3. Mitchell’s statement

Lonnie Mitchell was taken into custody shortly after the victim had described him and his automobile to the police. While in custody he made a highly prejudicial statement admitting much of that with which he ultimately was charged. He contends that the statement was not voluntarily given and that the warning he was given was inadequate to inform him of his rights. He also contends the statement was inadmissible because the tape recording from which the transcription was introduced at the trial was not made available to him.

a. Voluntariness

In determining whether the state has shown that a statement taken from an accused in custody was voluntary, we consider the totality of the circumstances including the age, education, and intelligence of the accused, the advice or lack of advice of his constitutional rights, the length of dentention, the repeated or prolonged nature of the questioning, and the use of physical or mental punishment. Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986). We do not reverse the trial court’s determination of voluntariness unless it was clearly against the preponderance of the evidence. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

Mitchell’s argument is that he had an I.Q. of only 81, that he had low verbal skills, that his personality was susceptible to manipulation, and that he was isolated from his grandmother, with whom he lived, and from his attorney who was representing him on other charges. A low I.Q., standing alone, will not render the waiver of the right to remain silent invalid, Hignite v. State, 265 Ark. 866, 581 S.W.2d 552 (1979); nor will low verbal skills. White v. State, supra; Hatley v. State, supra. Mitchell had completed the ninth grade and could read.

The record contains a statement by a psychologist that Mitchell is a fearful person subject to having his will overcome during interrogation. Two other psychologists stated that he was faking mental illness and thus skewing his test scores.

There is no showing that Mitchell was deprived of access to means to communicate with his grandmother or with an attorney. Nor is there any showing whatever of coercion or physical abuse during this detention. While he complains he was kept two hours and not offered food, there is no showing that he was unduly hungry or that he was promised food in return for a confession.

While Mitchell was young, he was not a juvenile. His argument that he was represented by attorneys on other charges reveals that he had been in this situation at least twice before and was thus not a novice in the police station. We find the trial judge’s determination that the statement was voluntary not clearly against the preponderance of the evidence.

b. The rights form

The rights form used by the Russellville Police Department was deficient in its failure to mention the fact that a lawyer would be appointed even if the accused could not afford one; however, the deficiency was cured by the testimony of Officer McMillan who informed Mitchell of his rights, took his statement, and testified that he told Mitchell that if he could not afford a lawyer one would be appointed for him. Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987).

c. The tape recording

Five days after Mitchell’s statement was taken he filed a discovery request for all relevant evidence. The state did not produce the tape recording from which his statement had been transcribed because it was a tape which had been returned to a “pool” of tapes used by the police department and it had been reused and thus no longer contained Mitchell’s statement.

Arkansas R. Crim. P. 17.1 provides that the prosecutor shall disclose any written or recorded statement and the substance of any oral statement made by the defendant. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), we held a defendant is entitled to the tape from which a written statement was transcribed. We pointed out that the tape represents the best evidence and without it the defendant has no way of determining if the transcript was a correct reproduction of the recording.

The state’s argument is that the Williamson case is distinguishable because in this case the tape is not available, and there it was available, but simply not supplied. Such a distinction should not have the effect the state would have us ascribe to it, for that would deprive the Williamson case of its meaning. The authorities could, with impunity, simply destroy the best evidence of what was said by the accused, and then assert its unavailability in every case.

We do not count this a reversible error here because of the overwhelming evidence of guilt of the accused, see Berna v. State, supra, and the lack of any showing that the police department acted in bad faith in destroying the tape recording. However, we caution prosecutors to see to it that such a recording is kept available for a reasonable time after a statement has been transcribed, as its “unavailability” may not save a transcription from inadmissibility in another case.

4. The arrest warrant

Mitchell argues that the warrant for his arrest was invalid because it was issued by the clerk of the court without authorization from the judge and was thus in violation of Ark. R. Crim. P. 7.1(c). The technical invalidity of an arrest warrant is irrelevant when the arrest has been made upon probable cause. Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). There is no question but that the police had probable cause to arrest Mitchell.

Reversed and remanded.

Holt, C.J., and Hays, J., dissent.

Jack Holt, Jr., Chief Justice,

dissenting. Though the Supreme Court’s decision in Batson and this court’s opinion in Ward lend some support to the majority’s holding that Mitchell made a prima facie case of discrimination after the prosecution questioned Petty closely on whether his race would affect his vote, I find myself unable to accept the majority’s subsequent conclusion that, standing alone:

where the use of a peremptory challenge results in exclusion from the jury of all members of the defendant’s minority race, it is not necessary to show exclusion of more than one minority juror of the same race as the defendant to make a prima facie case of discriminatory use of a peremptory challenge, and thus invoke the “sensitive inquiry” requirement. [Emphasis mine.]

I feel today’s decision is in direct conflict with our recent decision in Smith v. State, 294 Ark. 357, 742 S.W.2d 936 (1988), and places an unwarranted burden upon the prosecution never contemplated by either Batson or Ward. Therefore, I dissent.

In one fell swoop, and without saying so, this court has overruled our decision in Smith, supra, in which we held that the striking of two jurors, standing alone, is not sufficient to constitute a Batson “pattern” which would give rise to the inference of discrimination necessary to establish a prima facie case. The result of today’s decision is to ignore the delicate balance struck by the United States Supreme Court between “the prosecutor’s historical privilege of peremptory challenge free of judicial control . . . and the constitutional prohibition on exclusion of persons from jury service on account of race . . . .” Batson v. Kentucky, 476 U.S. 79, 91 (1986).

What the majority holds is that in cases where there is only one juror of the same minority race as the defendant on a panel of perhaps fifty potential jurors, absent any other factors the striking of that particular juror automatically creates a prima facie case of purposeful discrimination by the State which shifts the burden to the prosecution to give a sufficiently neutral explanation for the strike, all in the context of a “sensitive inquiry” by the court. Our comments in cases on this issue which have come before us vividly demonstrate the likelihood of success judges and prosecutors will have in clearly meeting their respective obligations in that regard. Today’s decision will do more than merely chill the use of peremptory challenges by the prosecution, it effectively shackles the ability to exercise a method of challenge traditionally “viewed as one means of assuring the selection of a qualified and unbiased jury . . . .” Id.

While I wholeheartedly support the proposition set forth in Batson that the State’s privilege to strike individual jurors through peremptory challenges is subject to the commands of the Equal Protection Clause and that the prosecutor therefore cannot challenge potential jurors solely on account of their race on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant, the majority’s holding that a prima facie case of discrimination can be made by the striking of a single juror of the same minority race as the defendant, without more, flatly contradicts the notion that it is a “ ‘pattern’ of strikes against black jurors included in the particular venire [which] might give rise to an inference of discrimination.” Id. at 97.

I cannot accept the fact that Mitchell made a prima facie case of discrimination based solely on the strike of venireman Petty. Likewise, I cannot agree that a prima facie case was made out simply by virtue of the fact that two of the prosecutor’s eighteen questions were race related, unless the evidence was convincing that the prosecutor’s subsequent explanation concerning Petty’s honesty was linked to Petty’s responses on the issue of race. This, however, is not the case.

The record clearly shows what can best be described as “dissatisfaction” on the part of the prosecutor with Petty’s demeanor when answering other questions, particularly whether Petty would find Mitchell guilty if satisfied beyond a reasonable doubt that Mitchell had committed the offenses charged, and whether Petty would consider sending Mitchell to the penitentiary. Pursuant to AMCI 104, jurors are instructed that in determining the credibility of any witness, it is proper to take into consideration the demeanor of the witness while on the stand. I find nothing in the law indicating that prospective jurors cannot be judged in like manner.

Although capable of dual interpretation, I attach little significance to the prosecutor’s side bar remark that it was his prerogative to be harder on Petty in his questioning than on other jurors. At no time during the questioning of Petty did Mitchell’s counsel object to the manner in which the prosecutor was questioning Petty, and the remark by the prosecutor is at most indicative of his dissatisfaction with Petty’s demeanor in responding to the prosecutor’s other questions.

Even if I were convinced that Mitchell established a prima facie case of purposeful discrimination, I find that while the trial court can only barely be said to have conducted the “sensitive inquiry” discussed in Ward, the prosecutor’s explanation for the challenge satisfied the State’s burden that it “articulate a neutral explanation related to the particular case to be tried.” I therefore respectfully dissent. Hays, J., joins in the dissent.