author: Jack Holt, Jr., Chief Justice. Otis H. Turner, Justice,

text:
    BILL DAVIS TRUCKING, INC. v. Michael L. PRYSOCK
    89-296
    784 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellant.

      James F. Swindoll, P.A., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellants claim the amount of compensatory damages awarded by the jury was based on speculation and was excessive. We disagree and affirm.

This personal injury action arose out of an automobile collision that occurred on June 3, 1987, about a mile and a half south of Tuckerman, Arkansas, on U.S. Highway 67. Appellee, Michael L. Prysock, a thirty-five year old farmer, was driving south in his truck, carrying a load of wheat to the grain dryer. Appellant, James Skaggs, was driving behind Prysock in a tractor trailer truck belonging to appellant, Bill Davis Trucking, Inc.

Skaggs’ truck hit the rear end of Prysock’s truck at a high rate of speed. Prysock’s truck rolled over twice, and Prysock was thrown through the cab window. He landed approximately twenty feet from his truck. Prysock was knocked unconcious by the blow and remained in that condition for thirty minutes. An ambulance transported him to the hospital, where he remained for three days with complaints of pain and stiffness in his neck and left arm, and numbness all over his body.

Shortly thereafter, Dr. Roland Reynolds, a family practitioner, began treating him. Dr. Reynolds testified that on Prysock’s first visit, he was having pain in his left hand, thumb, index finger, and third finger, and aches in his left arm. Reynolds’ examination of Prysock’s neck revealed that Prysock had pain with both extension and flexion and with rotation of his neck to the left. Prysock had a left radial nerve deficit, or a decreased sensation of pain and touch in his left radial nerve, and a strain in his left trapezius muscle. At this point, Reynolds placed him on a muscle relaxant and referred him to a neurosurgeon. Later, Prysock was sent to a neurologist, who performed EMG and nerve condition studies. Both the neurosurgeon’s and neurologist’s findings were consistent with Dr. Reynolds’ diagnosis.

Dr. Reynolds examined and treated Prysock on a number of occasions from September 24, 1987, until October 4, 1988. Prysock had the following symptoms on these visits:

September 24, 1987: Pain and stiffness in his left hand; crepitus, pain, and stiffness in his neck; and crepitus in his left shoulder.
March 29,1987: Pain between his shoulder blades caused by shoveling; and complaints of numbness in his neck.
April 12,1988: Soreness in his back, particularly between his shoulder blades; and tingling in his fingers.
May 12, 1988: Pain in the left side of his neck all the way down to the lower spine caused by driving a tractor.
June 14, 1988. Crepitus in his left shoulder; some pain when stretching or turning.
October 4, 1988. Constant ache in his left arm and shoulder; tenderness of the nerves in his neck; and pain while lifting, straining, or stooping.

During this time frame, Prysock was prescribed several medications for his condition. In addition, other tests were performed, and he was examined by another neurosurgeon. His medical bills totalled $4,086.61.

Reynolds testified that none of Prysock’s conditions are likely to get better and will probably become worse because of the type of work that Prysock does; that he may need surgery in the future; that his injury is permanent; that he will need to return for treatment periodically; that he will need more medication and, possibly, physical therapy; and that Prysock’s discomfort will be cyclical, depending on the amount of physical effort expended.

Prysock testified that he wakes up in the morning stiff, that his left hand is still numb, that he cannot do much hard work or lift much with his left arm, that his injury has affected his ability to farm, and that his condition is not improving.

He also testified that he does not work as efficiently as he used to and, as a result, has had to change his method of planting wheat from drilling to broadcasting. Drilling requires lifting sixty pound sacks, which Prysock is unable to do because of his condition. Broadcasting requires more seed to get the same yield. As a result, in 1988, he had to buy 440 extra bushels of seed at $6 a bushel, which cost him $2,640.

Prysock owns 97 acres of land and farms an additional 640 acres. He double crops, which means he plants two crops in a year. He testified that he began the wheat harvest on June 2,1987. He was injured the next day. He returned to the fields on June 8 to harvest the wheat with the help of his ten-year-old son. It was necessary to get the crop harvested so that he could plant his soybean crop. It took him until June 17 or 18 to harvest the wheat crop.

He estimated that he would have finished the harvest by June 10 if he had not been in the accident. As a result of the late harvest, he was delayed in planting his soybean crop, which he did in July.

Prysock testified that a hard rain came while he was in the hospital and beat down a lot of the wheat and, as a result, he lost 1643 bushels of wheat at $2.52 a bushel, or $4,140.36. Since his soybean crop was late in being planted, an early frost cut down his yield. He lost 716 bushels at $5.48 a bushel, or $3,923.68. In 1988 he had to hire an employee, at a cost of $ 1302, to help him harvest.

The trial court took judicial notice of the mortality table in Ark. Code Ann. § 18-2-105 (1987), noting Prysock had a life expectancy of approximately forty-four remaining years.

The only issue submitted to the jury was the amount of damages. The jury was instructed under AMI 2201, as modified, that if it found for Prysock on the issue of damages, then it must fix the amount of money that will reasonably and fairly compensate him for the following elements of damage sustained: (1) the nature, extent, and permanency of any injury; (2) the reasonable expense of any necessary medical care, treatment, and services received in the past, and the present value of any such services reasonably certain to be experienced in the future; (3) any pain, suffering, and mental anguish experienced in the past, and reasonably certain to be experienced in the future; (4) the value of any earnings lost in the past and the present value of loss of ability to earn in the future; and (5) any scars and disfigurement. The jury returned a general verdict in the amount of $198,000.

There were no objections to any of the testimony or trial proceedings. For reversal, appellants’ sole contention is that the damages awarded were based upon speculation and were excessive. We disagree.

Where it is contended that there is insufficient evidence to support the amount of the award of compensatory damages, this court must decide whether the award is so great that it shocks the conscience of the court or demonstrates that the trier of fact was motivated by passion or prejudice. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (m3). See also O’Neal Ford, Inc. v. Davie, 299 Ark. 45, 770 S.W.2d 656 (1989); Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987). In determining whether the amount was so great as to shock the conscience, we consider such elements of damage as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Matthews, supra.

A jury has much discretion is awarding damages in personal injury cases. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).

In this case, one element of damage is measurable with exact certainty, i.e., Prysock’s past medical expenses in the amount of $4,086.61. However, future medical expenses do not require the same degree of certainty as past medical expenses. Honeycutt v. Walden, 294 Ark. 440, 743 S.W.2d 809 (1988); Matthews, supra. It is not speculative or conjectural to calculate future medical expenses where there is a history of medical expenses that have accrued as of the date of trial, particularly where there is also a degree of medical certainty as to the need for future medication. Williams v. Gates, 275 Ark. 381, 630 S.W.2d 34 (1982).

A copy of Prysock’s medical bills and a medical itemization demonstrating $4,086.61 in past medical damages were submitted to the jury. Dr. Reynolds testified that Prysock’s injury is permanent, that his pain will increase as his work load increases, and that he will require future medical treatment. Prysock testified that he cannot do much hard work with his left arm, that his injury has affected his ability to farm, and that his condition is not improving. Both the doctor and Prysock testified that all of the medical bills were incurred as a result of his injury caused by the accident. In sum, this evidence was sufficient for the trier of fact to consider this element of damage.

In addition, Prysock proved a permanent injury with reasonable certainty. Handy Dan Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985). See also Matthews, supra. There was medical testimony that Prysock sustained an injury, suffered pain and discomfort up until the time of trial, and that none of his conditions are likely to get better, but will probably become worse. The jury could reasonably conclude that the consequences of his injury will occur in the future. East Texas Motor Freight Line, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986).

Prysock presented proof of loss of past earnings by testifying concerning the amount of the additional expenses incurred because of the injuries he sustained, and showed his loss of earning capacity, or his loss of ability to earn in the future. The probable diminution of earning capacity may be inferred from evidence of impaired ability to work, despite the absence of direct proof of the value of the diminished capacity. Haney v. Noble, 250 Ark. 557, 466 S.W.2d 467 (1971). See also Honeycutt, supra. The testimony in this case clearly established that Prysock sustained a permanent injury that will impair his capacity to earn.

Prysock presented sufficient proof of pain, suffering, and mental anguish, and is entitled to a recovery for this element in the past as well as that reasonably to be experienced in the future. See Matthews, supra; East Texas Motor Freight Line, Inc., supra; The Scott-Burr Stores Corp. v. Foster, 197 Ark. 232, 122 S.W.2d 165 (1938); Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984).

We recognize that the amount of the award is undeniably liberal. However, when we take into account all elements of damages, we cannot say that the amount of the award, $198,000, is so great that it shocks the conscience of the court or demonstrates that the jury was motivated by passion or prejudice. Matthews, supra.

Affirmed.

Turner, J., dissents.

Otis H. Turner, Justice,

dissenting. Based upon the record in this case, I am convinced that the jury award is excessive. I would order a remittitur or a new trial, the option resting with appellee.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Richard Lee McMILLAN a/k/a Richard Lee McMillen v. Honorable Francis T. DONOVAN
    CR 89-134
    784 S.W.2d 752
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Helen Rice Grinder, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves former (double) jeopardy.

On December 20,1988, the appellant, Richard Lee McMillan, was charged by grand jury indictments with one count of conspiracy to commit theft of property and one count of accomplice to capital felony murder. In addition, he was charged with four other counts: two counts of conspiracy to commit burglary and two counts of conspiracy to commit aggravated robbery.

The trial court initially joined all of the charges to be tried on March 7, 1989. McMillan then filed a motion to sever the conspiracy to commit theft of property and accomplice to capital felony murder charges from the four other counts with which he was charged. The trial court, however, severed all of the charges.

McMillan was convicted of all of the conspiracy counts, but the charge of accomplice to capital felony murder remains.

On June 30,1989, McMillan submitted a motion requesting that the accomplice charge be dismissed on the grounds of former jeopardy. The trial court denied the motion, but reduced the charge to accomplice to first degree murder. McMillan then filed a petition for writ of prohibition with this court. It was temporarily granted, with instructions to remand to the trial court to make specific findings of fact and conclusions of law as to the issue of former jeopardy.

The trial court submitted its findings and order to this court, which McMillan attacks on four points of error. Since we find reversible error in McMillan’s claim that the trial court erred in dismissing his motion to dismiss on the basis of former jeopardy grounds, we will limit our discussion to that point of error. In doing so, we will treat the trial court’s denial of a plea of double jeopardy as a final and appealable order. Beard, Morrison & Cooky. State, 277 Ark. 35, 639 S.W.2d 52 (1982) (citing Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959)).

Arkansas R.Cr.P. 21.3 addresses the failure to join related offenses and provides in pertinent part as follows:

(a) Two (2) or more offenses are related offenses for the purposes of this rule if they are within the jurisdiction and venue of the same court and are based on the same conduct or arise from the same criminal episode.
(b) When a defendant has been charged with two (2) or more related offenses, his timely motion to join them for trial shall be granted unless the court determines that because the prosecuting attorney does not have sufficient evidence to warrant trying some of the offenses at that time, or for some other reason, the ends of justice would be defeated if the motion is granted. A defendant’s failure to so move constitutes a waiver of any right of joinder as to related offenses with which the defendant knew he was charged.
(c) A defendant who has been tried for one (1) offense may thereafter move to dismiss a charge for a related offense, unless a motion for joinder of these offenses was previously denied or the right of joinder was waived as provided in subsection (b). The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.

In Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986), we recognized that this rule has three requirements: 1) the offenses must be within the jurisdiction of the same court, 2) arise from the same conduct or criminal episode, and 3) a timely motion to join must be made.

In this case, McMillan, a Conway Police Officer, conspired with Kenneth Clements to steal a flatbed trailer from a parking lot. In the course of stealing the trailer, Clements shot and killed a police officer. McMillan was not physically present during the commission of the theft and murder, because he was on duty at the police department.

After McMillan was charged with the offenses of conspiracy to commit theft of property and accomplice to capital felony murder, he submitted the following motion to the trial court:

MOTION FOR SEVERANCE OF OFFENSES

Comes the defendant, Richard Lee McMillan, by his attorney, Helen Rice Grinder, and for his Motion for Severance of Offenses made pursuant to the Arkansas Rules of Criminal Procedure, Rule 22.2, states as follows:
1. That the defendant is charged by indictment as an accomplice to capital felony murder and with five conspiracies. Only one conspiracy charge; Conspiracy to Commit the Theft of a flatbed trailer, is related to the accomplice charge. The other conspiracy charges are not the same or similar in character or related to the accomplice charge.
2. Severance of the accomplice charge and the conspiracy to commit theft charge, from the other charges, is necessary due to the complexity of the evidence which will be offered at trial. Severance is also necessary for a fair determination of the innocence or guilt of the defendant due to the number of charges.

The trial court granted this motion; however, it also severed the conspiracy to commit theft of property charge from the accomplice to capital felony murder charge.

McMillan’s subsequent conviction of conspiracy to commit theft of property serves as the basis for his motion to dismiss the accomplice to capital felony murder charge according to Rule 21.3.

In Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987), we stated that:

[c]ourts should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek. It would not be in the interest of justice and fair play to be blindly guided by the title of a motion or pleading. We continue to abide by the well-established rule that a pleading will not be judged entirely by what it is labeled but also by what it contains.

The conspiracy to commit theft of property charge and the accomplice to capital felony murder charge are within the jurisdiction of the Faulkner County Circuit Court. The offenses concededly arise from the same criminal episode. In deciding whether a timely motion to join was made, we consider that McMillan’s motion, although entitled “Motion for Severance Of Offenses,” plainly shows on its face that McMillan intended that the two charges be joined together and that they also be severed from the remaining four charges.

In his brief, the Attorney General concedes that “the face of this motion plainly shows that it was McMillan’s intention to have joined the conspiracy charge involving the theft of a flatbed trailer . . . and the murder charge . . . and that the Faulkner County Circuit Court erred in denying McMillan’s motion to dismiss . . . .”

We agree.

Consequently, we dissolve the temporary stay of the writ of prohibition, reverse the judgment of the trial court, and order the trial court to dismiss the charge in accordance with this opinion.

Hickman, Hays, and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. In this criminal case the state concedes error. The state is wrong and unfortunately this court has failed to correct that wrong.

The majority opinion fairly sets out the facts and law, but I believe the court misconstrues and misapplies A.R.Cr.P. Rule 21.3 in reaching its result. Rule 21.3 reads as follows:

(a) Two (2) or more offenses are related offenses for the purposes of this rule if they are within the jurisdiction and venue of the same court and are based on the same conduct or arise from the same criminal episode.
(b) When a defendant has been charged with two (2) or more related offenses, his timely motion to join them for trial shall be granted unless the court determines that because the prosecuting attorney does not have sufficient evidence to warrant trying some of the offenses at that time, or for some other reason, the ends of justice would be defeated if the motion is granted. A defendant’s failure to so move constitutes a waiver of any right of joinder as to related offenses with which the defendant knew he was charged.
(c) A defendant who has been tried for one (1) offense may thereafter move to dismiss a charge for a related offense, unless a motion for joinder of these offenses was previously denied or the right of joinder was waived as provided in subsection (b). The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted. (Emphasis added.)

Everyone agrees that two of the six offenses with which appellant was charged were related, viz., one count of conspiracy to commit theft of property and one count of accomplice to capital felony murder. When appellant moved on January 10, 1989, to sever the four unrelated offenses, the trial court erroneously severed, as well, the conspiracy theft of property charge. Appellant never objected to this unrequested judicial act, nor did he later move to join both the conspiracy theft of property offense with the capital felony murder charge so they could be tried together. Instead, appellant stood mute, on the issue, defended later unsuccessfully against the conspiracy theft charge (for which he received no sentence) and then moved to dismiss the capital murder charge because it had not been joined and tried together as required under Rule 21.3.

Rule 21.3 places the burden on the appellant to move to join related offenses and if he fails to do so, he waives his right of joinder. See also Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986). Here, appellant never moved for joinder of the two related offenses — those who had already been joined with four other offenses. Instead, he moved to sever those four unrelated offenses from the two related ones and the judge severed one too many. Somehow, the majority concludes that the appellant met his burden because his motion to sever also contained a motion to join. I thoroughly disagree. But even if this were so, the appellant failed to get a ruling from the trial judge on the motion to join. As we have stated numerous times, the burden to obtain a ruling is on the movant, and questions left unresolved are waived and may not be relied upon on appeal. See, e.g., Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). The burden, in these circumstances, should be no less in our review of an appellant’s request for a writ of prohibition.

I submit that if the prosecutor had separately filed those same six charges against the appellant, and the appellant failed to move to join the two related crimes, the court would hold appellant waived his right of joinder. In this case, the trial court erred — not the prosecutor — when severing all the offenses, and I strongly believe the appellant had the affirmative duty to request the court to join the two related offenses as a prerequisite to his requesting dismissal later, citing double jeopardy as his reason.

The Arkansas Rules of Criminal Procedure are intended to provide for a just, speedy determination in every criminal proceeding. We are bound to construe them so as to secure simplicity in procedure, fairness in administration, the elimination of unnecessary delay and expense and to protect the fundamental rights of the individual while preserving the public interest.

In the present case, appellant’s fundamental rights could have been preserved if he had requested the related conspiracy theft and murder charges to be tried together. If, after such a request, the trial judge denied such joinder, appellant clearly would have grounds to claim double jeopardy and dismissal of the second related charge. Here, appellant made no such request regardless of how the majority may characterize the appellant’s motion to sever. This court’s failure to require the appellant to comply with the plain language of Rule 21.3, in my view, ignores the public’s interests in this matter. The appellant observed the trial court’s error in its ruling, he never objected nor did he ask the court to correct its mistake by joining the two related offenses. I would deny appellant’s request for writ of prohibition.

Hickman and Hays, JJ., join this dissent.


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice, dissenting.

text:
    Walt PATTERSON, in His Official Capacity as Director of the Department of Human Services; and Department of Human Services v. R.T., et al.
    89-64
    784 S.W.2d 777
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Debby Thetford Nye, General Counsel, and Breck G. Hopkins, Deputy General Counsel, Department of Human Services, for appellants.

      Griffin J. Stockley and Jeanette Whatley, Central Arkansas Legal Services; and Brian Wolfman, Legal Service of Arkansas, for appellees.
   Jack Holt, Jr., Chief Justice.

This appeal focuses on a question concerning disqualification of the presiding chancellor. We find that she should have recused from this case; thus, we reverse and remand.

The appellees, four adults, individually and as parents and next friends of six minors, filed this class action suit in equity pursuant to 42 U.S.C. § 1983 (1982) on behalf of:

Themselves and all parents, guardians, and custodians whose children have been found by a court of competent jurisdiction to be dependent/neglected or abused and have been placed in the custody of a relative or other person or institution, but who have not been placed in a state-approved foster care program, and who are not receiving the statutorily mandated services to reunite the family.

The appellees alleged below that appellants, the Department of Human Services and Walt Patterson, Director of the Department, had failed to provide the same reunification services to the members of the class that are provided to parents, guardians, or custodians and their children where the children have been placed in state-approved foster care, thereby violating the Arkansas Juvenile Code of 1975 [Ark. Code Ann. §§ 9-27-301 — 9-27-367 (1987)] and the due process and equal protection clauses of the fourteenth amendment. They asked for declaratory relief stating that appellants’ failure to provide them with reunification services mandated by the Juvenile Code violated their statutory and constitutional rights and for injunctive relief requiring the appellants to provide services and to amend their policies.

When this action was filed, it was assigned to the First Division of the Pulaski County Chancery Court. The case was transferred to the Third Division to be heard by the Honorable Judith Rogers. Shortly thereafter, appellants filed a motion for an order of recusal asking that the chancellor disqualify herself. The motion was denied.

After numerous hearings and several amendments to the pleadings, an agreement was reached by the parties as to a new definition of the class, and the chancellor entered an order accordingly. However, the chancellor, in her decision on the merits, established a new class as follows:

All parents, guardians, or custodians and their children who, since July 1, 1985, have been involved in judicial proceedings [where the Department of Human Services or its agents (including SCAN) has been a party] in which a finding of dependency/neglect or sexual abuse has been entered and has resulted in placement of the child(ren) with a relative, or other person or institution, and who are not receiving or will not receive in the future the same services to reunite the family which are being provided to families and their children who have been placed in a state-approved foster care, and who are not receiving permanency planning service and periodic reviews in those situations where reunification is not possible.

In this decision, the chancellor found that the appellees’ equal protection, due process, and statutory claims had merit and ordered the appellants to provide the same services to class members as are provided to families and children where the children have been placed in state-approved foster care and to amend their policies to conform to the order of the court. In addition, the chancellor ordered the appellants to establish an implementation process for reunification services. From this order, appellants appeal.

For reversal, appellants contend that the chancellor erred in refusing to recuse. We agree. Appellants make six additional arguments on appeal; however, we do not address them inasmuch as the issues in the case may be different on remand.

“A judge must avoid impropriety and appearance of impropriety.” Arkansas Code of Judicial Conduct Commentary to Canon 2 (1988). Accordingly, “[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . .” Arkansas Code of Judicial Conduct Canon 3(C)(1) (1988).

Where a judge exhibits bias or the appearance of bias, this court will reverse. Burrows v. City of Forrest City, 260 Ark. 712, 543 S.W.2d 488 (1976); Farley v. Jester, 257 Ark. 686, 520 S.W.2d 200 (1975). “[T]he proper administration of the law requires not only that judges refrain from actual bias, but also that they avoid all appearances of unfairness.” Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978).

In Farley, supra, the chancellor made a statement during trial, which reasonably could have been understood by the litigants as an implication that the testimony of one witness would receive more consideration than the testimony of other witnesses. In holding that the chancellor should have disqualified himself, we stated:

[C]ourt proceedings must not only be fair and impartial — they must appear to be fair and impartial. This factor is mentioned in a Comment found in 71 Michigan Law Review 538, entitled, “Disqualification of Interest of Lower Federal Court Judges: 28 U.S.C. § 455”, as follows:

“Another factor to be considered in a judge’s decision to disqualify is the contention that the appearance of impartiality is as important, if not more so, than actual impartiality. In 1952, Justice Frankfurter explained his disqualification in a case by stating that ‘justice should reasonably appear to be disinterested as well as be so in fact.’. . . More recently the Court set aside an arbitration award and stated that ‘(a)ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.’ ”

Likewise, in the Code of Judicial Conduct, prepared by the Special Committee on Standards of Judicial Conduct of the American Bar Association, and adopted by this court by Per Curiam Order of November 5,1973, the Commentary to Canon 2 points out that not only must a judge avoid all impropriety, but must avoid also any appearance of impropriety.

In appellants’ motion to recuse and brief in support thereof, they alleged that Chancellor Rogers should recuse inasmuch as she is an active member of the Permanency Planning Task Force sponsored by the National Council of Juvenile and Family Court Judges, “an advocacy group which has taken public positions with respect to the policy questions which are subject of this litigation” and supported and participated in the drafting of Act 868 of 1985. They also claimed that she should recuse because she has provided services to the Juvenile Justice Commission and, as a result, “will participate in proposals regarding a number of policy questions which could be a matter of litigation in this case.”

In response, appellees admitted the chancellor’s membership in the Permanency Planning Task Force, but denied that the Task Force supported and drafted Act 868 of 1985.

Chancellor Rogers, in her order denying the appellants’ motion for recusal, acknowledged membership on the Permanency Planning Task Force and the Juvenile Justice Commission, and noted that the Task Force is not an advocacy group; that it has not issued any advisory opinions dealing with the relief sought by the plaintiffs; that the Juvenile Justice Commission has not discussed the type of case presently involved; that she possesses no knowledge of disputed evidentiary facts to warrant recusal; and that her membership on the committees in question does not affect her impartiality.

The chancellor’s membership on the Juvenile Justice Commission and the Permanency Planning Task Force does not automatically require disqualification, nor do we find that any bias necessarily resulted from the chancellor’s membership and participation in these organizations. However, her identification with these organizations, coupled with her conduct and comments during pretrial proceedings and at trial, exhibited the appearance of bias. In short, she should have recused.

During a hearing on a motion for class certification, the chancellor, in response to cross-examination of appellees’ expert witness, Amy Rossi, concerning Rossi’s position on whether home placement should trigger intervention by the state, remarked: “I want to make a statement, since I’ve looked at the definition of an expert, I’m going to say I’m pretty much an expert in this area. . . .”

Later in this hearing, the following exchange between the chancellor and appellees’ expert witness, JoAnn Nash, took place during direct examination:

Mr. Stockley (appellees’ counsel): Ms. Nash, were you employed by me to review some case files?
Ms. Nash: Yes.
The Court: You say, “Unlike foster case, it was frequently noted in cases where children were placed with relatives that it was the agency’s goal to close the case without attempts for reunification and without permanency planning for the child.”
Ms. Nash: Yes, Judge Rogers.
The Court: Did it say on it, “the goal is to close without attempts for” — or what was the wording that you got that?
Ms. Nash: No, the wording would say that it was the agency’s goal to close the case due to relative placement.
Ms. Nash: Can I refer to a particular example —
The Court: Sure. Well, pull one out that says, “even in those instances when it was the opinion of the agency that reunification was not possible and/or desirable, no permanency planning assistance was provided even though requested by the relative.” Do you have one of those?
Ms. Nash: Yes.
The Court: Good, let’s pull that one.

From this scenario it is obvious to this court that the chancellor, during the early stages of the trial proceedings, communicated the appearance of bias to the litigants by declaring that she was an expert and then directing the appellees’ witness to furnish the court with certain types of case files that would bolster the appellees’ allegations.

In examining another pretrial proceeding on appellants’ motion to dismiss, we find further comments by the chancellor that provided a basis for the litigants to reasonably question her disinterest:

Mr. Stockley: Even — if I could make one comment because I need to be clear on this myself. Even if all these cases got resolved before trial date, we still have a class that has been certified that is entitled to —
The Court: Some relief.
Mr. Stockley: — to the relief or no relief. I mean —
The Court: Yeah, I agree with that.
Ms. Nye (appellants’ counsel): Your honor, I disagree with that. If there — there’s a continuing responsibility to keep the class definition alive and if at a point in time we come to trial —
The Court: Well now, wait a second, wait a second. Suppose you go ahead and deliver services to all these people but we haven’t changed the system, which is really what the plaintiffs are caring about, and which is what this court cares about ....
Ms. Nye: Certainly and that is to my point on the declaratory aspect of it, being a legal issue with respect to the treatment of the remaining class definition.
The Court: It’s certainly a legal issue as respect to whether or not people get damages and their 1983 things, but whether or not we go ahead and set guidelines for future action because we have seen it happen over and over and over again by members of a class, I think that’s a little different. Then I think the court can go ahead and do that and the court’s going to do that. I know it’s very difficult but I’m going to do it. We may sit here between now and the 29th or 30th, but we’re going to get — we’re going to go ahead and see that not only these individually named plaintiffs are given services, but that we set up some sort of system, by agreement or court order which is then appealable, to say that we will not do this to children. . . .

The mind-set of the chancellor is apparent to us. By commenting, “Suppose you [appellants] go ahead and deliver services to all these people, which is really what the plaintiffs [appellees] are caring about, and what this court cares about . . . ,” the chancellor has declared before trial that the appellees are entitled to receive services before she had heard any evidence on the merits concerning their entitlement to services. She further exhibited the appearance of bias when she stated that “we’re going to go ahead and see not only these individually named plaintiffs are given services, but that we set up some sort of system, by agreement or court order. . . .” [Emphasis added.]

The chancellor’s involvement had obviously gone beyond objectivity, and the court seemed to be announcing the outcome of the case before it was tried. The tone of the court’s remarks was administrative in nature and not judicial.

Likewise, the chancellor’s remarks during trial provided cause for the litigants to reasonably question her impartiality. For example, during the testimony of Ms. Rossi, the first witness called by the appellees, the chancellor commented, “— you know, I don’t think Ms. Rossi will have any real trouble finding a case or you [Mr. Stockley] should have — be able to give it to her and and say, “Was this one of the cases you found and on that basis did you go ahead? Do you remember any case that you found that said it didn’t provide services, could you go through your cases and find it?”

In addition, the chancellor, in response to a request by one of the attorneys, stated: “Yes you may inquire. Counsel if you think that my patience is short, it is not because my patience is short on this particular case, it is because I have been dealing with this system for eleven years and although I do see an improvement, I do not see enough of an improvement. . . .” [Emphasis added.] Later, the chancellor expressed appreciation of appellee’s witness, Ms. Nash, acknowledging that Nash’s testimony made it easier for her [the chancellor] to “make some sense out of what I wanted to do . . . .” [Emphasis added.]

In the chancellor’s findings of fact and conclusions of law, she gave effect to her earlier remarks by ordering appellants to provide services to the appellees and to change their system by amending their policies to conform to her order.

Of course, a judge trying a case without a jury may develop “bias” as the trial progresses, and that “bias” ultimately may result in the court’s judgment. It is, however, the communication of that bias at inappropriate times and in inappropriate ways that will cause us to reverse. That is what has happened in this case. While we suggest no knowing violation or intentional misconduct on the part of the chancellor, we reverse this decision because it was so tainted by the appearance of prejudgment.

As Justice Black stated for United States Supreme Court in In Re Murchison, 349 U.S. 133 (1955), “[T]o perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ”

Reversed and Remanded.

Hays, J., dissents.

Glaze, J., not participating.

Steele Hays, Justice, dissenting.

I do not share the view of the majority that the appellants have shown such prejudice by the trial judge that an appellate court can conclude the chancellor should have recused from the case. This was a long, involved trial with complex issues, including class certification, yet the majority offers only subjective interpretation of isolated excerpts from a voluminous record to sustain its position. In their strongest sense, these segments fall considerably short, I believe, of the sort of “objective, demonstrable prejudice” which our cases require. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). In their weakest sense, they are merely ambiguous. Nor is it unusual for trial judges to express tentative views on the merits of a case from the moment they have read the pleadings. Those are not indicative of a prejudice that taints a trial.

We have said, correctly I submit, that recusal is a matter which must be left largely to the discretion of the trial judge. Sloss v. Farmers Bank & Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986); Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). If that language of the law is to have any meaning, the appellants should not prevail on this contention. I would affirm.


author: Darrell Hickman, Justice. Otis H. Turner, Justice,

text:
    Dorothy PONDER v. Don Leroy CARTMELL, et al.
    89-170
    784 S.W.2d 758
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990
    [Rehearing denied April 16, 1990.]

      Steven L. Festinger, for appellant.

      Wright, Lindsey & Jennings, for appellees.

      Hays and Turner, JJ., would grant rehearing.

   Darrell Hickman, Justice.

Dorothy Ponder was injured when the bus in which she was riding was involved in an accident. She sued the bus driver, Don Cartmell, and Ozark Coaches Sales and Service, the owner of the bus. The case went to trial on the sole issue of damages, liability having been admitted. The jury awarded Mrs. Ponder $25,000. On appeal, she challenges certain evidentiary rulings by the trial court which affected the jury’s assessment of damages. We find error and reverse and remand.

In her complaint, Mrs. Ponder claimed she sustained injuries to various parts of her body, including her back, neck, and left breast. Immediately following the accident, she was examined by Dr. Livingstone, a general practitioner. The doctor prescribed treatment for her injured breast, then referred her to specialists for a mammogram. Apparently, there was no other treatment of the breast injury until nearly two years later when Mrs. Ponder was examined by Dr. Pike. Dr. Pike discovered fibrocystic disease in the breast and performed surgery. In a letter to Mrs. Ponder’s attorney, Dr. Pike said he doubted the accident had any relation to the development of the disease. The first issue involves the appellees’ use of this letter at trial.

The appellees had filed a motion in limine asking that the breast injury not be mentioned. The trial judge agreed that evidence of the breast surgery and Mrs. Ponder’s resulting fear of developing breast cancer should not be admitted. However, he did not prohibit evidence of Mrs. Ponder’s treatment by her general practitioner and the doctors who performed the mammogram.

During Mrs. Ponder’s testimony about her injuries, she did not mention the breast surgery performed by Dr. Pike nor did she ask the jury to award her damages for the expenses incurred in Dr. Pike’s treatment. However, on cross-examination, the appellees introduced Dr. Pike’s opinion letter and attempted to discredit Mrs. Ponder’s testimony with it. Mrs. Ponder objected, saying that she had not presented any evidence of her treatment by Dr. Pike.

The court allowed the letter to be introduced into evidence because the appellant had “opened the door” on the subject. In fact, it was the appellees who first mentioned the surgery performed by Dr. Pike. Their use of the letter created the impression that Mrs. Ponder was seeking damages for injuries which her own doctor realized were not caused by the accident. The appellees introduced a collateral matter into evidence, then used it to impeach Mrs. Ponder’s testimony. The court should not have allowed this to take place. See Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987).

This error alone would be sufficient to warrant reversal, but we also base our decision on another evidentiary error committed by the court. Mrs. Ponder’s treating physician, Dr. Richard Jordan, testified that Mrs. Ponder had a degenerative disc disease in her neck which was aggravated by the accident. He performed two surgical procedures on her — an anterior scalenotomy and a discectomy — and testified that the treatment was necessitated by the injury she received in the accident.

The appellees presented an expert witness, Dr. Thomas Fletcher, who disagreed with Dr. Jordan’s testimony. Dr. Fletcher’s testimony emphasized three things. First, he said the appellant had only suffered a neck sprain and lower back sprain in the accident; second, he said the accident did not cause or aggravate the appellant’s degenerative disc problem. In other words, he disagreed that the bus accident caused the injuries to the discs in the appellant’s neck. There is no problem with this aspect of Dr. Fletcher’s testimony. Certainly, a defendant’s medical expert may testify that the physical injuries for which the plaintiff seeks compensation were not caused by the accident. See Shemman v. American Steamship Co., 89 Mich. App. 656, 280 N.W.2d 852 (1979). But Dr. Fletcher’s testimony went beyond this. In the third aspect of his testimony, Dr. Fletcher told the jury that Dr. Jordan misdiagnosed the appellant’s symptoms and that this misdiagnosis led to unnecessary surgery. He disagreed that the scalenotomy was the proper treatment for the appellant’s continuing complaints of neck pain, saying an anterior scalenotomy was “not indicated for muscle spasm alone or pain alone.” He also said that the discectomy was not a proper treatment for the appellant’s neck problems, saying “discectomy is not indicated for degenerative disc disease alone.” Dr. Fletcher said he would not have performed either operation. It is this part of Dr. Fletcher’s testimony that the appellant says should not have been admitted into evidence, and we agree.

The appellant’s recovery should not be diminished because Dr. Jordan’s misdiagnosis, if indeed that was the case, led to the use of extreme medical procedures. Given Dr. Fletcher’s testimony, the jury might have determined that the appellant should have been treated more conservatively and that surgery was an extreme or unnecessary measure. This violates the principle that, so long as an individual has used reasonable care in selecting a physician, she is entitled to recover from the wrongdoer to the full extent of her injury, even though the physician fails to use the remedy or method most approved in similar cases or adopt the best means of cure. See Am. Jur.2d Damages, § 536. This principle is also recognized in Restatement (2d) Torts, § 457, Illustration 1:

A’s negligence causes B serious harm. B is taken to a hospital. The surgeon improperly diagnoses his case and performs an unnecessary operation. . . A’s negligence is the legal cause of the additional harm which B sustains.

See also O’Quinn v. Alston, 213 Ala. 237, 104 So. 653 (1925) (where treating surgeon amputated finger, it was error to ask defense expert whether amputation was necessary); Whitaker v. Kruse, 495 N.W.2d 223 (Ind. App. 1986) (Plaintiff may recover expenses of unnecessary surgery).

It is true that a plaintiff who seeks to recover medical expenses must prove the expenses are reasonable and necessary. Kay v. Martin, 300 Ark. 193, 777 S.W.2d 859 (1989). “Necessary” means causally related to the tortfeasor’s negligence. See Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1985). If a plaintiff proves that her need to seek medical care was precipitated by the tortfeasor’s negligence, then the expenses for the care she receives, whether or not the care is medically necessary, are recoverable.

We will briefly address two issues which may arise upon retrial. Two exhibits entered into evidence by the appellees clearly mentioned the appellant’s insurance coverage. Reference to insurance should be deleted if the exhibits are used on retrial.

A surveillance tape, showing some of the appellant’s daily activities, was entered into evidence by the appellees over the appellant’s objection. We find the tape was admissible. The tape showed the appellant walking past a Social Security benefits sign, but she explained that she was procuring benefits for her mother, not herself. That the tape depicted only a selected portion of two days of appellant’s life is not an argument against admissibility of the tape, but a factor to be weighed by the jury. Also, on retrial, appellant should receive any tapes to which she was not previously given access.

Finally, there was no error in the court’s failure to compel the appellees to answer certain interrogatories and deposition questions.

Reversed and remanded.

Holt, C.J., Hays and Turner, JJ., concur in part and dissent in part.

Otis H. Turner, Justice,

concurring in part; dissenting in part. I agree with the majority that it was error for the trial court to admit into evidence the report of Dr. Pike. For that reason this cause should be reversed and remanded. However, I disagree that the second point argued by the appellant, concerning the admissibility of the medical expenses, warrants reversal.

The majority opinion correctly acknowledges our longstanding rule that the medical expenses recoverable by the plaintiff must be found to be reasonable and necessary, but then ignores the “reasonable” requirement of the two-pronged test. Reasonable in relation to what? I perceive the test to be whether the medical expenses were reasonable in relation to whatever injury resulted from the negligence of the defendant as proved by the plaintiff and as found by the trier of fact. Under our advocacy system, the plaintiff must prove an injury occasioned by defendant’s negligence, medical treatment as a result of that injury, that the medical treatment procured was both reasonable and necessary and last, the amount of money necessary to reimburse the plaintiff for all reasonable and necessary medical expense, if any, which the trier of fact finds was occasioned by defendant’s negligence.

Whether or not a tortfeasor’s negligence causes the medical care and resulting charges is a question for the jury. Just because the plaintiff says it’s so, and just because the plaintiffs physician says it’s so, does not alone prove the issue — and, where controverted, it remains an issue for the jury to determine. The burden is on the plaintiff not only to show that any treatment was reasonable and necessary, but also that the specific treatment for which the plaintiff seeks compensation and the charges for that treatment were reasonable and necessary under the circumstances. Kay v. Martin, 300 Ark. 193, 777 S.W.2d 859 (1989).

Dr. Jordan testified that he tried to eliminate the appellant’s symptomology by performing an anterior scalenotomy, a procedure designed merely to produce symptomatic improvement. He also requested a diagnostic study known as an MRI. This study indicated some evidence of degenerative disc disease. The appellant did not have a herniated disc, but a degenerative one, without evidence of any nerve-root compression. She did not exhibit any radicular neurologic deficit. Thereafter, a discogram at two levels of the neck was performed and the test, run at levels C-5 and 6 and C-6 and 7, showed that she had similar pain from both 5 and 6. Dr. Jordan states that he now has three pieces of evidence that indicate some relationship between the disc spaces at 5-6 and 6-7 to her pain, and, based on those results, he elected to remove the two discs and fuse the vertebra at those levels. For all of this treatment and other treatment, substantial medical bills were incurred for which the appellant claims compensation.

On cross-examination Dr. Jordan stated that the myelogram which he had performed did not indicate bulging discs; instead, he said there is an impingement on the contrast over the disc which is the same thing as a bulging disc. He also admitted that his consultation notes recorded that, having reviewed the myelogram, he felt that, other than a very small defect at C-6/7, the myelogram was normal and the small defect did not contribute to the appellant’s syndrome. Dr. Jordan then testified that he certainly thought she had a neck sprain and a bulging disc.

Defendant called Dr. Thomas M. Fletcher, who had given a report based on his review of the records and had subsequently examined the appellant. Dr. Fletcher testified that degenerative disc disease is a wear-and-tear phenomenon that is a consequence of aging rather than trauma. Dr. Fletcher also stated that the surgical procedure called scalenotomy is an operation that has generated considerable controversy and is now infrequently performed.

Where there is degeneration of the disc, the disc will usually bulge, and it is very common to see, in the lower back of a person aged 40 or over, bulges from the intervertebral discs. They appear on myelograms and are nothing more than a degenerative aging change. Dr. Fletcher testified that his diagnosis of the appellant’s condition was that her injury had been a cervical or neck and lower-back sprain injury and that this had occurred independent of her pre-existing degenerative disc disease. Further, with severe sprains, a patient is usually put to bed and subsequently wears a neck collar. Dr. Fletcher’s opinion was that the appellant suffered a cervical sprain, together with a lower-back or lumbosacral sprain, but did not have a bulging disc according to the studies run for Dr. Jordan which he had examined. Rather, she had a degenerative disc. The significance, of course, is that the presence or absence of a bulging disc determines the course of treatment and management of the case.

Dr. Fletcher concluded that the appellant did not have clinical indications calling for scalenotomy because there was no neurological indication that she had compression of the nerves. He also opined that the records did not indicate that a cervical discectomy was required. A discectomy is necessary if there is nerve-root compression or spinal cord compression, but none of the sort was found in the appellant. Further, based on the myelogram and other test results, he did not see any clinical indication of a cervical condition at the C5-6 level, and in his opinion the appellant did not exhibit any injury to the body of her cervical spine in connection with this accident, other than a cervical sprain.

The majority is holding that, so long as an individual has used reasonable care in selecting a physician, the claimant is entitled to recover from the wrong-doer to the full extent of his injury, even though the physician fails to use the remedy or method most approved in similar cases or to adopt the best means of cure. Again, this presupposes an injury as diagnosed by the treating physician. This is an improper and unwarranted supposition but is a question to be resolved by the factfinder under proper instructions. For authority for the above proposition, the majority cites E.L. Bruce v. Corbett, 188 Ark. 962, 695 S.W. 270 (1930). The Bruce case, however, says no such thing. In Bruce, the court said only that the damages may not be diminished by showing that more skillful treatment would have produced better results. That is not the issue here. The issue here is the cost of the treatment and whether or not the treatment that was given, and for which the appellees are being charged, was needed at all. This is, quite simply, a question for the jury.

Holt, C.J., and Hays, J., join.


author: Robert H. Dudley, Justice. Jack Holt, Jr., Chief Justice,

text:
    Kenneth R. IRVIN v. STATE of Arkansas
    CR 90-14
    784 S.W.2d 763
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990
    [Rehearing denied April 2, 1990.]

      William C. McArthur, for appellant.

      Steve Clark, Att’y Gen., by; Joseph V. Svoboda, Asst. Att’y Gen., for appellee.

      Price, J., not participating.

   Robert H. Dudley, Justice.

In July 1982, appellant pleaded guilty to a felony and was sentenced to imprisonment for five (5) years under the Youthful Offender Alternative Service Act of 1975. Ark. Stat. Ann. §§ 43-2339 to -2349 (Supp. 1982). Under the Act appellant was immediately eligible for parole. Ark. Stat. Ann. § 43-2342(c). Upon completion of his five-year sentence he was entitled to have the record of conviction expunged. Ark. Stat. Ann. § 43-2344. Appellant completed his sentence without incident. There is no showing whether the record was in fact expunged.

In October 1987, appellant possessed a firearm. He was subsequently charged and convicted in the case at bar of being a convicted felon in possession of a firearm. Ark. Code Ann. § 5-73-103 (Supp. 1989). We reverse and hold that even though the appellant’s record may not have been actually expunged, his prior sentence under the Youthful Offender Act cannot be used as the underlying felony in a later prosecution for felon in possession of a firearm.

The Youthful Offender Alternative Service Act of 197 5 provides that upon completion of the sentence, “the Commissioner [of the Department of Correction] shall direct that the record of the eligible offender be expunged . . . .” Ark. Stat. Ann. § 43-2344. Expunged means an entry upon judicial and law enforcement records “signifying that the defendant was completely exonerated of any criminal purpose and said disposition shall not affect any civil right or liberties of said defendant.” It does not mean the physical destruction of the records. Ark. Stat. Ann. § 43-2340(g).

The foregoing language leaves little room for doubt about our decision in this case. However, we are additionally persuaded by the public policy underlying the Youthful Offender Act. That policy is to remove the stigma of youthful indiscretions, and to give a youthful offender a second chance to a life free of a criminal record.

The federal Youth Corrections Act, 18 U.S.C. §§ 5005 to -5026 (1976), is similar to our Youthful Offender Act of 1975. While federal decisions do not mandate how we decide state issues, we note that the three (3) Circuit Courts of Appeal which have construed the federal act have construed that act the same as we now construe our act. United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980); United States v. Purgason, 565 F.2d 1279 (4th Cir. 1977); United States v. Fryer, 545 F.2d 11 (6th Cir. 1976).

The State argues that it produced the judgment of conviction, and even though it may have been subject to expungement, it was up to the appellant to show actual expungement. Such an argument disregards the language of the Act. The 1982 judgment of conviction offered in evidence by the State to establish the original conviction revealed that appellant was sentenced under the Youthful Offender Act. Under the language of the Act the young offender does not have to petition for expungement. Instead, it is a ministerial duty to be completed by the Commissioner of the Department of Corrections. The Act provides that the “Commissioner shall direct that the record of the eligible offer be expunged. . . .” Even if the Commissioner had failed to perform his ministerial duty, we would not subject a citizen to incarceration solely because a State official did not perform a ministerial act.

Further, proof of a prior felony is an element of the crime of felon in possession of a firearm and must be proven beyond a reasonable doubt by the State. To require an accused to prove expungement would be to require an affirmative defense when none is required by the statute. See United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980).

The State additionally argues that this case is governed by Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984). In Gosnell, we held that an expunged conviction can be used to enhance the sentence of an habitual offender. We distinguish Gosnell because in that case the expunged conviction was not used as an element of the crime. Here, the State used the expunged conviction as an element of the crime.

Finally, the State argues that the commentary to the felon in possession statute, Ark. Code Ann. § 5-73-103, dictates affirmance. The argument is without merit. The commentary deals with suspension and probation, not with expungement.

Reversed and remanded.

Holt, C.J., concurs.

Jack Holt, Jr., Chief Justice,

concurring. I concur and make the following observation and comment:

Even though the Youthful Offender Alternative Service Act of 1975 provided that upon completion of the sentence, the Director (of the Department of Correction) “shall direct that the record of the eligible offender be expunged ....,” Ark. Stat. Ann. § 43-2344 (Supp. 1982), the state asserts that Irvin had a duty to prove that his record has been, in fact, expunged. Such an argument defies common sense and good reason.

As the court in United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980), stated: to require a defendant “to rebut evidence of his conviction by producing a certificate,” whose issuance is controlled by the government, . . . would be “analogous to placing the burden upon a person never before convicted the burden of proving his clear record.”

Upon completion of his five year sentence, Irvin was entitled to have his conviction expunged and it was the state’s duty and responsibility by statute to do so. Such an oversight on the part of the state is inexcusable.


author: Robert H. Dudley, Justice.

text:
    M.N. OSBORNE, Agent, and Jerry A. King Ministries, Inc. v. CITY OF CAMDEN
    89-287
    784 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Mitchell, Williams, Selig & Tucker, by: W. Christopher Barrier, for appellants.

      Bramblett & Pratt, by: James M. Pratt, Jr., for appellee.
   Robert H. Dudley, Justice.

M.N. Osborne purchased a 33,000 square foot building in Camden. After purchasing the property, he discovered that a zoning line traversed the building at an angle, leaving practically all of the building zoned “neighborhood commercial.” Only a small part of the rear right of the building was zoned “light industrial.” Osborne petitioned the City Planning Commission to zone all of the tract on which the building was located to “light industrial.” The Commission denied his request. He then petitioned the Board of Directors of Camden to overturn the Commission’s zoning decision. The Board affirmed the Commission’s decision and denied appellant’s rezoning petition. Osborne transferred the property to appellant Jerry King Ministries, Inc., but continued to seek rezoning, acting as King’s agent in this action. Appellant filed suit in chancery court to enjoin the City from enforcing the zoning ordinance. The trial court upheld the ordinance. We affirm the result by the trial court, but for a reason different from the one given by the Chancellor.

Municipal zoning authority is conferred solely by State enabling legislation. Taggart v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). Failure to comply with a mandatory procedural requirement of the enabling statute renders a zoning ordinance invalid. City of Searcy v. Roberson, 224 Ark. 344, 273 S.W.2d 26 (1954). A zoning ordinance “shall consist of both a map and a text.” Ark. Code Ann. § 14-56-416(a)(2) (1987). Compliance with this provision of the statute is mandatory, and failure to comply with it will render a zoning ordinance void. City of Benton v. Phillips, 191 Ark. 961, 88 S.W.2d 828 (1936); City of Searcy v. Roberson, supra. The purpose of this provision is to give notice of the city’s zoning proposal so that, before adoption, residents may object or make suggestions, and after adoption, land purchasers may acquaint themselves with the zoning restriction. City of Benton v. Phillips, supra.

In this case the zoning ordinance in dispute was the comprehensive zoning ordinance of 1977, which consisted only of a text. No map was approved by the City as the 1977 zoning map. A Camden official explained that the City was frugal. Sometime later a city planner drew a map which contained, he said, the boundaries which the City had intended. The Chancellor upheld this “working map” as being sufficient to validate the ordinance. The cases of City of Benton v. Phillips, id. and City of Searcy v. Roberson, id., are squarely in point, and the ruling was in error. The 1977 comprehensive zoning ordinance was invalid because it did not contain a map.

The invalidity of the 1977 ordinance causes the City to fall back to its prior comprehensive zoning ordinance, the one of 1964. In 1964 the city officials were not so parsimonious. They employed the City Planning Division of the University of Arkansas to prepare a map and made it a part of the ordinance. However, this 1964 ordinance does not give appellant any zoning relief because the property was zoned at that time the same as it was in 1977. As could be expected, appellant argues that the 1964 ordinance is also invalid. The Chancellor did not rule on this argument. Rather than remand, and in order to end the controversy, we will decide the issue.

An appeal in a chancery case opens the whole case for review as if no decision had been made in the trial court. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). “It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below.” Ferguson v. Green, id. at 565. Accordingly, we turn to the question of whether the 1964 ordinance was valid.

Appellant contends that Ark. Code Ann. § 14-56-422(5) (1987) requires that both the text and the map of the 1964 ordinance be filed in the City Clerk’s office. Evidence established that the map was filed in the City’s Planning and Code Enforcement Office, and not the City Clerk’s office. Such a filing will not render the ordinance invalid.

The City Planner’s office does not have an outside door, and entry into the office is through the City Clerk’s office. When citizens went to the clerk’s office and asked for a zoning map they were referred into the planning office. Thus, there was substantial compliance with the statute.

In reading this opinion, one may wonder why we invalidate one ordinance for failure to strictly comply with the statutory requirement to make a map part of the ordinance and, in the same opinion, uphold another ordinance on the basis of substantial compliance when the map is not filed precisely as directed by the enabling legislation. The reason is in one instance the statute is mandatory and in the other it is directory. As early as Edwards v. Hall, 30 Ark. 31, 37 (1875), we adopted the principle that those things which are of the essence of the thing to be done are mandatory, while those not of the essence are directory only. We have continued to follow that distinction. Taggart v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). In this case the existence of a map is the essence of the enabling statute and of the zoning ordinance, while the place a map is filed is not.

Additionally, the appellant argued below that the 1964 classification of appellant’s property was a mistake, and it was arbitrary and capricious for the City not to correct the mistake. We quickly dispose of the argument because the alleged mistake was never presented to the City; it was only presented to the court. The City did not arbitrarily refuse to correct its mistake when its alleged mistake was not shown to it.

Affirmed.

Hays and Glaze, JJ., not participating.


author: Steele Hays, Justice.

text:
    Ronald Jackie YATES v. STATE of Arkansas
    CR 89-200
    785 S.W.2d 119
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Sullivan, Emmons & Kissee, by: Larry Dean Kissee, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Ronald Jackie Yates was convicted of two counts of rape and two counts of incest involving his niece, aged twelve. The trial court treated the two counts of incest as lesser included offenses of rape, dismissing the incest charges, and the defendant was sentenced pursuant to the verdict to consecutive twenty year sentences on the rape convictions. Yates has appealed, contending that the trial court erred a) in denying a motion for a directed verdict of acquittal, b) in overruling an objection to improper closing argument by the prosecutor, c) in refusing to suppress a confession by the defendant, and d) in overruling appellant’s objections to the prosecutor’s cross-examination of the defendant. We find merit in two of the points raised on appeal and therefore the judgment is reversed. We will discuss all the points preserved for review for purposes of remand.

I

The information alleged that appellant unlawfully engaged in sexual intercourse with his niece, a minor, twice in February 1987. When appellant was taken into custody, he first gave a written statement to the police denying any such involvement, but shortly thereafter admitted having had sexual relations with the child on two occasions in February 1987, signing a written statement to that effect. However, the victim testified to only one such incident and while her testimony was subject to some uncertainty due to an inability to recall events from two years previously, her testimony, given its strongest probative force, cannot support an inference that intercourse with the appellant occurred twice when the substance of her testimony was that it happened only once. While she may have made extra-judicial assertions to the effect that it happened on two successive days, there was no substantive proof to that effect and all she could say, beyond the single instance, was that she did not remember.

Appellant relies on Ark. Code Ann. § 16-89-111(d) (1987):

A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.

We conclude that there was no other proof of a second rape and it was error not to grant appellant’s motion for acquittal as to one count of rape.

In her testimony, the girl was unable to fix the date when the sexual intercourse occurred. She testified that it was in September of 1986, but she also said the weather at the time was cold rather than hot. She based the September date on the fact that she and her family were staying temporarily with the appellant because their own house in Florida had burned. In May the child returned to Florida and sometime later she reported the incident to her mother, an aunt and to an examining physician. The physician’s history fixed the date at “several weeks before” the victim’s return to Florida.

We do not find the lack of certainty as to the date to be material. The defendant’s confession stated it occurred in February and the victim’s inability to fix a definite date does not defeat the charge. It is rare that youthful victims of sexual abuse can provide exactness as to when an offense occurred and this victim seems to have been mildly retarded. Any discrepancies in the testimony concerning the date of the offense were for the jury to resolve. Burris v. State, 291 Ark. 157, 722 S.W.2d 858 (1987). Ark. Code Ann. § 16-85-405(a)(2)(d) (1987).

II

During closing argument the prosecutor made reference to the victim’s mental retardation. Counsel for the appellant objected on the grounds that there was no evidence that the victim was retarded. Appellant contends it was error to overrule the objection, citing Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976) and Adams v. State, 176 Ark. 816, 5 S.W.2d 946 (1928) for the rule that counsel may not go beyond the record to state facts that are prejudicial to the opposing party.

We first note that appellant’s obj ection was not made at the first opportunity. The state had previously made reference in its closing argument that the victim was mentally retarded. The defense objected but on grounds relating to other subject matter in the state’s argument and not at all to the mention of retardation. It was not until the state made a second mention of the topic that the defense objected. Having failed to make an objection at the first opportunity, appellant has waived any argument on appeal. Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984). Furthermore it seems to have been taken for granted by both sides that the victim had such limitations, as the defense itself had brought the topic up during trial in its cross-examination of both a police officer and the victim. Given the trial court’s discretion in allowing every plausible inference from the evidence, we could not say there was an abuse of that discretion. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987); Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981); Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).

III

We disagree with appellant’s contention that his confession was coerced, was involuntary, and that he was arrested illegally since he was not told that he was under no obligation to appear for questioning at police headquarters. A.R.Cr.P. Rule 2.3. The state points out that the latter argument is being raised for the first time on appeal. The abstract fails to demonstrate how that point was preserved and since the appellant has not replied to the argument, we will not address that phase of the argument.

We have independently reviewed the testimony at the suppression hearing, as required under the law, McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1980), and find appellant’s arguments unconvincing. He testified that he was told if he would confess he would be assured of a suspended sentence, that he had little or no education, could not read and was intimidated by the interrogation procedures in that one of the officers shouted at him and banged the desk repeatedly with a clenched fist. But these assertions were disputed by the interrogating officers and we do not as a rule overturn the findings of the trial court on issues of credibility. Hanson v. State, 296 Ark. 385, 757 S.W.2d 932 (1988).

IV

The other point which makes reversal necessary has to do with the cross-examination of the defendant by the prosecutor, during which the following occurred:

Q: Mr. Yates, you mentioned that you and your wife were divorced. Why, why’d y’all get divorced?

A: Well, Sir, it wasn’t relation problems. There’s other difficulties through our family that I’d rather not say.

Q: Would it surprise you to know that, was your wife in error when she swore in court that y’all were divorced because of the loss of her breast and hair and other medical problems and that you continually and maliciously made fun of her appearance?

BY MR. JARBOE:

Judge. . .

Q: And told friends and family that you did not . . .

BY MR. JARBOE:

I object to this. This is collateral. It’s very prejudicial. I ask for a mistrial.

BY MR. STALLCUP:

If Your Honor please, the subject of divorce was opened up. I asked him the reason they were divorced and he gave me the reason.

BY THE COURT:

Well, it’s prejudicial versus probative and objection overruled. Go ahead.

Q: Okay. Did you — let me back up. Was the reason that after your wife lost her hair and breast and had these problems, medical problems, that you continually and maliciously made fun of her appearance and told folks, the friends and the family that you didn’t want to be seen with her in public?

BY MR. JARBOE:

May we approach the bench?

BY THE COURT:

Yes.

(Thereupon, the following is held at the bench out of the hearing of the jury.)

BY MR. JARBOE:

This is exactly the stuff the rules talk about on inquiring into prior acts, bad conduct, that sort of thing. This whole thing about the divorce.

BY THE COURT:

This can come in under 404(b).

BY MR. JARBOE:

Well, I object to it and I contend it’s prejudicial.

BY THE COURT:

Overruled.

We do not agree, as the state urges, that the defense opened the door for such questioning by presenting the defendant as a model husband and family man. To the contrary, in opening statement counsel for the defendant told the jury the defendant had had mental problems and a serious drinking problem. The defense did represent that the defendant had had no prior involvements with the law, including even a traffic violation, was a conscientious worker and a helpful neighbor. But we do not equate these implications as suggesting he was a dutiful and caring husband. There was testimony, to be sure, that the defendant purchased a waterbed for his ex-wife’s back problems, but that evidence was aimed at the victim’s testimony that the rape occurred on a hard bed.

This line of questioning was plainly intended to depict the defendant as capable of the most detestable kind of insensitivity — taking pleasure in pointing out the physical effects of his wife’s struggle with cancer. The prejudice can hardly be doubted nor, we think, overstated. If its probative value was significant we would not readily overturn the trial court’s tacit approval by permitting it over timely objections, but we cannot conclude that the defense first presented the defendant to the jury as one solicitous of his ex-wife’s well-being, and, therefore, we believe the matter was lacking in relevance but fraught with mischief.

Reversed and dismissed in part, reversed and remanded in part.

       We disagree that incest is a lesser included offense of rape. See Ark. Code Ann. § 5-1-110 (1987); Ark. Code Ann. § 5-26-202 (1987); Ark. Code Ann. § 5-14-103 (1987) and see Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984).


author: David Newbern, Justice.

text:
    Jack William BEEBE v. STATE of Arkansas
    CR 89-204
    784 S.W.2d 765
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990
    [Rehearing denied April 2, 1990.]

      Norwood, Smith & Martin, P.A., by: Doug Norwood, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.

      Price, J., not participating.

   David Newbern, Justice.

Jack William Beebe appeals from his conviction of aggravated robbery and theft for which he was sentenced to concurrent sentences of 50 and 60 years imprisonment as an habitual offender. He raises four points of appeal, and we find none of them warrant reversal.

Martha Campbell testified that she and her husband, Jesse Campbell, and Beebe discussed robbing a convenience store. Jesse obtained a shotgun belonging to Martha’s brother. He sawed the barrel off. Jesse and Martha made some masks to be used in a robbery. On a Monday, the Campbells and Beebe went to the bank at Centerton, Arkansas. They were driving a blue and white Dodge truck. Jesse and Beebe went inside to look around, and they asked for change for a ten dollar bill. Upon driving away from the bank they discussed the possibility that the surveillance cameras at the bank might cause them to be spotted if they robbed it.

That evening the three picked out a convenience store to rob. The Campbells waited with the truck some distance from the store while Beebe walked to the store and back. The store was closed, so the robbery attempt failed. They then picked out a second convenience store but decided to wait until there were no customers present. Jesse and Beebe stood where they apparently could observe the store, and a policeman came up to them and asked what they were doing. They then returned to Martha and the truck, giving up the attempt to rob the second store.

The next day the Campbells and Beebe decided to rob the bank. They let Jesse out at the bank, and Martha and Beebe went out a dirt road with the truck. As they had planned it, Jesse took a teller’s car after the robbery and met Martha and Beebe at the truck. Later that day, they were stopped by police officers while riding around in the truck.

At a pre-trial suppression hearing, Bill Baskin, a state police investigator, testified that he had received a radio transmission to the effect that he should look out for a “rough” blue and white pickup truck with two men and a woman. Physical descriptions were given to Baskin of the persons wanted for investigation in connection with the bank robbery. Upon seeing a truck with occupants matching the description, he stopped the truck.

The Campbells and Beebe were separated from each other, and they gave conflicting stories about where they were going. Beebe was sent to a state police vehicle where he was put in the back seat from which he could not get out without help from outside. Martha was then placed in the car with Beebe, and they were taken to the sheriffs office for continued investigation. They were not told they were not obliged to go.

Martha had left her purse on the seat of the truck. When the purse was searched for weapons, the money from the bank robbery was found. The officer driving Martha and Beebe received a radio transmission to place them under arrest, and he did so after stopping the car and handcuffing them. An FBI agent had told officers at the scene of the traffic stop that people matching the descriptions of the Campbells and Beebe had been seen the day before “casing” the bank. In addition, two bank tellers who had been victims of the robbery were brought to the scene. One of them identified Martha and Beebe as having been at the bank the day before. Apparently that information was not passed on to the officer who drove Beebe and Martha to the sheriffs office.

Beebe was questioned at the sheriffs office. The prosecutor, David Clinger, participated in the questioning. He told Beebe that the sentence for aggravated robbery was ten to forty years or life imprisonment and did not mention possible enhancement based on previous convictions. Speaking apparently to Beebe and the Campbells, Clinger said, “As far as making an armed robbery case, we don’t need a single thing out of any of you all’s mouth.” Beebe testified at the pre-trial hearing that he would not have made a statement had he known his sentence could have been different from that stated by Clinger.

1. Suppression of Beebe’s statement

Beebe contends his statement to the police should have been suppressed because his arrest was unlawful and the police failed to comply with Ark. R. Crim. P. 2.3 and 3.1. The statement is not included in the abstract of the record. We have no idea whether the statement was prejudicial. Rule 11 (f) of the Rules of the Arkansas Supreme Court and Court of Appeals requires an abstract of the parts of the record which are material to the points to be argued in the brief. Nichols v. State, 268 Ark. 541, 595 S.W.2d 237 (Ark. App. 1980). See Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977). Without knowing whether the statement was prejudicial, we cannot review the question presented.

2. Prior bad acts

Beebe moved in limine to suppress testimony about the planning of the convenience store robberies. He contends it was error to deny the motion because the testimony was more prejudicial than probative. In Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), we stated that one of the elements to be considered under A.R.E. 404(b) in determining whether the evidence of prior bad acts could be admitted was the A.R.E. 403 test of probative value versus unfairly prejudicial effect. The evidence here meets the other elements of the Rule 404(b) test because it shows Beebe’s participation in a continuing course of conduct or plan to commit an aggravated robbery.

Whether the probative value of the testimony about prior bad acts outweighs any unfair prejudice is a question within the discretion of the trial judge, and we will not disturb the trial judge’s decision absent an abuse of discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

Beebe cites Golden v. State, 10 Ark. App. 363, 664 S.W.2d 496 (1984), in which the court of appeals found error in admitting evidence of three burglary convictions which were unrelated to the one charged. The court noted the other evidence in the case and pointed out that it was unnecessary to refer to the earlier convictions.

We cannot hold that the court abused its discretion in permitting Martha to testify about the events leading up to the bank robbery. Beebe was charged as an accomplice. The other evidence against Beebe was strong but circumstantial. It was based on his presence and association with the Campbells immediately prior to and after the robbery. Martha Campbell’s testimony that Beebe participated in the planning and attempting of the two convenience store robberies within 24 hours of the bank robbery was directly and highly probative that he was a participant in the bank robbery. The unfair prejudice was minimal in comparison.

3. Prosecutor’s participation

Beebe argues that because Prosecutor Clinger participated in questioning him and made misleading statements to him, any statement by Beebe to the police should have been suppressed or else he should have been allowed to call Clinger as a witness. He claims his rights under the Sixth and Fourteenth Amendments have been violated.

We do not approve of a prosecutor participating in a criminal investigation in such a manner as might cause him to become a witness. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). The argument here, however, is that Clinger should have been required to testify when Beebe called him as a witness. It is contended that his testimony would have shown that Beebe’s statements to the police were the result of overreaching because of Clinger’s remarks about the sentence for aggravated robbery and whether any statements from Beebe were needed for a case against him.

As noted above, we have no idea what statement or statements were made by Beebe. Unlike the Duncan case, there were no remarks by the prosecutor at the trial which amounted to testimony about the interrogation of the defendant. The argument has no merit.

4. Comment on Beebe’s failure to testify

In closing argument, a deputy prosecutor reviewed the evidence presented by the state and said, “I submit to you that that evidence has not been disputed.” He then made reference to various witnesses’ testimony, some of which had not been challenged by cross-examination.

No objection was made by the defense until the conclusion of the state’s argument. The remark was not necessarily a comment on Beebe’s failure to testify as the state’s evidence could have been disputed by evidence other than testimony by the accused. Even if the comment had been improper, the objection came too late, Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987), and Beebe did not fulfill his obligation to obtain a ruling on it in order to preserve the point for appeal. Wood v. State, 276 Ark. 346, 635 S.W.2d 224 (1982).

Affirmed.