author: Tom Glaze, Justice.

text:
    Norvell GOODEN v. STATE of Arkansas
    CR 94-1085
    902 S.W.2d 226
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      Ronald Carey Nichols, for appellant.

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

Appellant Norvell Gooden was found guilty by a jury of arson and sentenced as a habitual offender to fifty years in prison. Gooden’s sole point for reversal is that the trial judge erred in allowing the prosecution to cross-examine defense witness, Derrick Dodson, by asking him if he was aware of Gooden’s four prior felony convictions. We hold the trial judge’s ruling was correct.

In his case-in-chief, Gooden called Dodson who testified about being with Gooden on the day the arson occurred. Dodson also said that he did not have personal knowledge of Gooden setting the fire and added, “I don’t believe he would do anything like that. I’ve been knowing him too long. He’s not that type of guy.” After Dodson’s direct examination, the deputy prosecutor and defense counsel approached the bench and conferred with the trial judge who ruled the defense had “opened the door” by placing Gooden’s character in issue by Dodson’s statement that Gooden “wouldn’t do that sort of thing.” The state thén cross-examined Dodson, asking him if he was aware that Gooden had two prior felony convictions of theft of property and two convictions of breaking and entering. Gooden objected to the state’s questions as being irrelevant to the charge of arson, but the trial judge reiterated that Dodson had placed Gooden’s character in issue and the state’s questions were fair cross-examination. Dodson then responded to the state’s revelation of Gooden’s criminal background, stating that even being made aware of Gooden’s previous convictions did not change his opinion of Gooden.

Gooden’s objection as to the relevance of the type of crimes for which Gooden had been convicted is without merit because the cross-examination was allowed not to show Gooden had committed the arson, but to determine the weight to be given the character testimony of the witness.

Ark. R. Evid. 404(a) provides in pertinent part:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; . . .

This court has recognized that by producing a character witness the defendant opens the door to evidence which might otherwise have been inadmissible. Rank v. State, 318 Ark. 109, 883 S.W.2d 843 (1994). Once the admissibility of character evidence is established under Rule 404, Rule 405 establishes the methods of proof which may be utilized. Smith v. State, 316 Ark. 407, 872 S.W.2d 843 (1994). Ark. R. Evid. 405 clearly provides that in cross-examining a defendant’s character witness, it is permissible to inquire into the witness’s knowledge of relevant specific instances of conduct. Ark. R. Evid. 405(a) reads as follows:

Ark. R. Evid. 405. Reputation or Opinion. — (a) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (Emphasis added.)

In Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986), Reel was charged with murder, and at trial, he called his employer who testified that he had always regarded Reel as a truthful and honest employee. On cross-examination the trial judge permitted the prosecutor to question the witness with respect to an earlier misdemeanor conviction of Reel’s. In affirming the decision of the court in Reel, this court explained the reason for the rule set out in Ark. R. Evid. 405(a) as follows:

The purpose of the cross examination of a character witness with respect to a prior offense is to ascertain the witness’ knowledge of facts which should have some bearing on the accused’s reputation. If the witness does not know that an accused was previously convicted of a crime, the witness’ credibility suffers. If he knows it but then disregards it in forming his opinion of the accused, that may legitimately go to the weight to be given the opinion of the witness . . .
4= 4= 4=
... By presenting a character witness an accused opens the door which would otherwise be closed. If he wants us to know what his reputation is, we must be able to determine the witness’ awareness of the relevant facts.

288 Ark. at 191-192, 702 S.W.2d at 810-811.

Here, Dodson’s testimony that Gooden was “not that type of guy,” is similar in nature to the character testimony given in Reel. Likewise, Dodson’s character testimony opened the door for the state to inquire of Dodson’s knowledge, or lack of knowledge, regarding Gooden’s prior convictions, and such inquiries and testimony provided a means by which the jury could determine what weight and credibility it should give Dodson’s opinion of Gooden.

Finally, Gooden contends that, at the very least, the trial judge should have given an admonitory instruction to inform the jury that it should consider the reference to Gooden’s conviction only to the extent of Dodson’s knowledge of Gooden and the weight to be given his opinion of Gooden’s character. While this court has recognized limiting instructions in these circumstances to assist the jury in placing the testimony in its proper light, Smith v. State, 316 Ark. 407, 872 S.W.2d 843 (1994), Gooden simply failed to request such an instruction.

For the reasons above, we affirm.


source: Caselaw Access Project

license: Public Domain

text:
    Frank WILLIAMS, Jr. v. STATE of Arkansas
    CR 93-988
    902 S.W.2d 767
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      Thomas A. Potter and Charles A. Potter, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

On October 7, 1992, Clyde Spence, a farmer in Lafayette County, fired appellant Frank Williams, Jr. for breaking a tractor. Spence had employed Williams for several years, and had recently helped Williams obtain parole from prison under a work-release agreement. Before midnight that same night, Spence answered a knock at the door to his home. When the door opened, Spence’s wife overheard Williams’ voice. Mrs. Spence then heard two shots. She ran to the door and found her husband lying in the floor with blood coming out his ears. The Spences’ son, Paul, who was spending the night, came running to the door, and Mrs. Spence informed Paul that Williams had shot Mr. Spence. Paul Spence called Captain John Bishop of the Arkansas State Police, and told Bishop that Williams had killed his father. Paul informed Bishop that his mother had heard Williams’ voice. Bishop then called the radio dispatcher, telling him that Mrs. Spence had heard Williams’ voice at the time of Mr. Spence’s murder and that Williams was a suspect.

The police dispatcher subsequently notified Chief Deputy Peter Briggs that Spence had been killed and that someone had heard Williams’ voice prior to the shooting. Additionally, Captain Bishop told Deputy Briggs over the radio that Williams was apparently the assailant. Pursuant to information provided by Bishop and the dispatcher, Briggs found Williams, arrested him, and administered Williams his rights. Briggs performed a pat-down search of Williams which revealed the presence of a .25 automatic handgun in Williams’ pocket. Knowing Williams was a parolee, Briggs realized Williams was violating the law by having a gun on his person. Subsequently, two .25 casings were found at the murder scene.

Williams was charged with breaking or entering, felon in possession of a firearm, theft of property, and the capital murder of Spence, but the felon in possession of a firearm charge was severed for a separate trial. Williams was tried by jury, and found guilty of capital murder and sentenced to death.

On appeal, Williams makes three arguments. First, Williams argues the seizure of the .25 pistol and his custodial statements should have been suppressed as fruits of an illegal arrest. Further, Williams argues his custodial statements should have been suppressed because the rights form he signed prior to giving his statements was defective. Finally, Williams argues testimony regarding his status as a work-release inmate had no independent relevance to any fact at issue, and thus, should have been suppressed. We find no merit with any of Williams’ arguments.

In his initial argument, Williams contends his detention and arrest without a warrant were unlawful because the arresting officer did not have reasonable cause to believe Williams had committed a felony at the time he was arrested. See Ark. R. Crim. P. 4.1(a)(i). First, reasonable cause to arrest without a warrant does not require that degree of proof sufficient to sustain a conviction. Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991). This court has also held that reasonable cause to arrest without a warrant exists when the facts and circumstances within the officers’ collective knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant in a man of reasonable caution the belief that an offense has been committed by the person to be arrested. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986). See also Ark. R. Crim. P. 4.1(d). In sum, the officers, in arresting Williams, collectively were aware that Spence had been killed, that Williams’ voice was heard at the time Spence was murdered, and that Williams was apparently the assailant.

Even if the foregoing facts lacked or fell short of reasonable cause, Williams’ arrest was lawful under Ark. R. Crim. P. 3.1, which authorizes an officer to detain any person who he reasonably suspects has committed a felony. For purposes of this rule, reasonable suspicion means a suspicion based upon facts or circumstances which give rise to more than a bare, imaginary, or purely conjectural suspicion. Ray, 304 Ark. 489, 803 S.W.2d 894. In addition, if an officer who has detained a person under Rule 3.1 reasonably suspects that the detained person is armed and presently dangerous, the officer or someone designated by him may search the outer clothing of the detainee and seize a weapon or other dangerous thing which may be used against the officers or others. Ark. R. Crim. P. 3.4. Here, Briggs, the arresting officer, knew Williams was a murder suspect and a known felon. In detaining Williams, Briggs asked Williams if he had anything in his pocket, and Williams volunteered, “Yes, a pistol.” Briggs then pulled a .25 automatic handgun from Williams’ pocket. This court has held that evidence discovered as the fruit of a reasonable and lawful pat-down search is admissible. Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980). In reviewing the totality of the circumstances, we conclude the trial court’s finding that a valid warrantless search was performed was not clearly wrong. See Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992). We conclude the facts here justified a lawful detention and subsequent search of Williams pursuant to Rules 3.1 and 3.4, and is yet a second reason why the trial court’s denial of Williams’ motion for suppression should be sustained.

We also mention a third reason why Williams’ suppression argument should fail. At the time of his arrest, Williams was known as a felon and parolee. He had executed an Act 309 inmate agreement whereby he was released from the penitentiary conditioned upon, among other things, the following:

12. SEARCH. Inmate must submit your person, place of residence, and motor vehicles to search and seizure at any time, day or night, with or without a search warrant, whenever requested to do so by the supervisor or any law enforcement officer.

In Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990), the court upheld a warrantless search of Cherry, who, as a parolee, was subject to an agreement directing that his person, automobile, residence, or any property under his control could be searched by a parole officer without a warrant, if the officer had reasonable grounds for investigating whether Cherry had violated the terms of his parole or had committed a crime. Relying upon Griffin v. Wisconsin, 483 U.S. 868 (1987), the Cherry court pointed out that the supervision of probationers is a “special need” of the state, permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. The court further concluded that the special needs of the parole process call for intensive supervision of the parolee, making the warrant requirement impractical. The court, however, stated that a parole/probation officer’s ability to conduct a warrantless search is not unlimited and that such a search must be reasonably conducted. Again, in this case, Officer Briggs was well aware Williams was a parolee, and that he had been implicated in Spence’s murder. Obviously, such facts suggested reasonable grounds to investigate whether Williams had violated the terms of his parole, including whether he had violated the law and was improperly in possession of a firearm.

Williams’ second point for reversal is that his two custodial statements were inadmissible because the “constitutional rights form utilized by the officers failed to satisfy the requirements of Miranda v. Arizona, 384 U.S. 436 (1966).” He argues the rights form was deficient because of the following language:

3. You have the right to consult an attorney before answering any questions or making a statement, and you may have him present with you during questioning. Do you understand?_
4. If you cannot afford an attorney as determined by the Court one will be appointed for you at no cost to you. Do you understand? ___

(Emphasis added.) Williams claims the two paragraphs, as read together, can reasonably be interpreted as linking an indigent’s right to counsel before and during questioning to some point after questioning. Thus, Williams argues the form violates both the letter and spirit of Miranda and his custodial statements should have been suppressed.

In Duckworth v. Eagan, 492 U.S. 195 (1989), the Supreme Court addressed a similarly worded rights form and held that, based on the totality of the form, the warnings reasonably conveyed to the defendant his rights as required by Miranda. There, the relevant portion of the form provided the following:

You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.

Id. at 198. (Emphasis in the original with other emphasis omitted.) In finding the Duckworth form met constitutional muster, the Court distinguished California v. Prysock, 453 U.S. 355 (1981), where the Court had “suggested that Miranda warnings would not be sufficient ‘if the reference to the right to appointed counsel was linked [to a] future point in time after the police interrogation.’” Duckworth at 194. (Emphasis in original, citation omitted.)

The Duckworth court found the lower court had “misapprehended the effect of the inclusion of ‘if and when you go to court’ language.” First, the inclusion accurately described Indiana’s procedure for the appointment of counsel. Second, Miranda does not require that attorneys be “on call” for immediate appointment, but only that a suspect be informed that he has a right to counsel before and during questioning, and that an attorney will be appointed if the suspect cannot afford one. Id.

In Arkansas, as in Indiana, attorneys are appointed by the court upon a showing of indigency. See Ark. R. Crim. P. 8.2(a). Thus, paragraph 4 of the forms, as read to and signed by Williams, accurately reflects the fact that the court will determine indigency before appointing counsel.

Concerning this rights-form issue, we also conclude that, viewed in their totality, the warnings contained in the forms reasonably conveyed to Williams his rights as required by Miranda, namely, that he had the right to remain silent, that anything he said could be used against him in a court of law, that he had the right to the presence of an attorney, and that if he could not afford an attorney, one would be appointed for him prior to any questioning, if he so desired. Specifically, paragraphs 1, 4 and 5 informed Williams that he could remain silent and that an attorney would be appointed at no cost to him, but if he decided to answer any questions or make a statement, he had the right to stop at any time and consult with an attorney. As the Court in Duck-worth stated, “the prophylactic Miranda warnings are not themselves rights protected by the Constitution.” Duckworth at 203. Warnings that are the “fully effective equivalent” of Miranda will insure that the right against compulsory self-incrimination is protected. Id. We hold that the warnings given to Williams here were equivalent to those articulated and required by Miranda.

Before leaving this issue, we also address Williams’ comment that his two signed statements did not contain everything he had said during his interviews with Officer Briggs. Suffice it to say, Officer Briggs testified that he had “put in” everything Williams said although he did not include all the questions asked of him. When testimony on the circumstances surrounding the taking of a custodial confession is conflicting, it is the trial court’s province to weigh the evidence and resolve the credibility of the witnesses. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). Here, Williams had the opportunity to read his statements and refuse to sign them. Instead, he signed both of them.

In his third argument, Williams asserts the trial court erred in allowing the prosecutor and witnesses to refer to the fact he was on parole and in a work-release program at the time of the murder. He claims his past record has no probative relevance in this matter, and even if it did, the probative value of the evidence was substantially outweighed by its prejudicial nature.

The state’s case against Williams was largely based upon the fact that Williams killed Spence because Spence had fired him. Spence had employed Williams in past years, and had arranged recently for Williams to work for him while Williams was participating in the work-lease program. Williams had told his girlfriend that if he lost his job with Spence, he would have to go back to prison or find another job. The state’s theory was that Williams’ motive for killing Spence was one of revenge. The trial court agreed with the prosecutor that the evidence was admissible to show Williams’ motive, and we believe the trial court was correct in so ruling. See Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988). We also mention that, after the trial court ruled such testimony and evidence was admissible, the state agreed to accept an admonishment to the jury that Williams’ work-release status be considered going only to show Williams’ motive for the murder and for no other purpose, but Williams never requested such an instruction. As a consequence, no reversible error has been demonstrated. Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993).

The state has asked this court to conduct a proportionality review which we have done in the past. See Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989); Hill v. State, 289 Ark. 387, 711 S.W.2d 479 (1986). Comparative proportionality review is not constitutionally mandated in every case where the death sentence is imposed. Pulley v. Harris, 465 U.S. 37 (1984). Our Legislature, by enacting recent sentencing procedures, has provided a statutory check on arbitrariness by requiring a bifurcated proceeding where the jury is provided with information on aggravating and mitigating circumstances, and with standards in the use of that information. See Ark: Code Ann. §§ 5-4-103, 5-4-603-605 (Repl. 1993). Additionally, our review upon appeal includes a review of the aggravating and mitigating circumstances presented to the jury and a harmless error review of the jury’s findings. See § 5-4-603.

In the present case, the jury unanimously found one aggravating circumstance existed beyond a reasonable doubt, namely, Williams had previously committed another felony, an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person. See Ark. Code Ann. § 5-4-604(3) (Repl. 1993). The previously committed felony involved circumstances in which Williams threatened a law enforcement officer with a butcher knife, and was the offense for which Williams was currently on parole. In that encounter, Williams pointed an eight-inch knife towards the officer. In recalling the event, the officer said that if he had not moved away from Williams, Williams would have “cut me up and spit me out.” The officer recounted that Williams threw down the knife only after the officer drew his revolver. As to mitigating circumstances, Williams offered testimony regarding his deprived socioeconomic background and his dysfunctional family, and expert testimony that he was under the influence of alcohol and marijuana at the time of the murder. A unanimous jury found no mitigating circumstances probably existed at the time of the murder. We find no error.

The record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h), and there is no error that has been identified that would warrant reversal. Therefore, we affirm.

       Although Williams attempts to rely upon an officer’s statement that Captain Bishop said, “[T]he person (Mrs. Spence) at the house ‘thought’ they (sic) heard his (Williams’) voice,” other clear testimony was given that Williams’ voice was the om heard.

        See Act 309 of 1983, codified as Ark. Code Ann. §§ 12-30-401-408 (1987 and Supp. 1993).

      We note that, in determining reasonableness in Cherry, the court had before it a slightly more narrowly worded parole agreement which limited the search to be done by a parole officer, while here Williams consented to search by his supervisor or any law enforcement officer.


author: Robert L. Brown, Justice.

text:
    Lesley Glen HILL v. STATE of Arkansas
    CR 95-205
    902 S.W.2d 229
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      Ralph Myers, III, and R. Brent Crews, for appellant.

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

The appellant, Lesley Glen Hill, appeals his judgment of conviction for rape and kidnapping which resulted in a sentence of 40 years on each charge, to be run consecutively, with 20 years suspended on the kidnapping conviction. He mounts one argument on appeal — that the circuit court erred in denying his motion for a continuance at trial. The issue is meritless, and we affirm.

On April 21, 1993, Hill was charged in an amended information with rape, kidnapping, and first degree battery. On August 9, 1994, trial commenced on the charges. After the jury was selected, sworn, and seated and following opening statements, defense counsel moved for the exclusion of anticipated DNA tests by the State on grounds of irrelevancy. Defense counsel then made a second motion:

The second one is, Judge, as of yesterday the defense was given an opportunity to meet with the State’s witness from the FBI Laboratory. At that time, Judge, we gained information that there are other laboratories other than the FBI that conduct similar tests. There is enough samplings or other samplings available that the defense could be provided with specimens of these samplings and be allowed to have its own laboratories conduct a DNA test of these specimens to refute the expert witness which is offered by the State.

The prosecutor responded that Hill had known for several months the State intended to introduce DNA evidence and that the defense, in effect, had not been diligent in selecting another DNA lab. Defense counsel answered that Hill was indigent.

The trial court ruled that the DNA evidence anticipated from the State was relevant and that the request to delay the trial for further testing was untimely. Later in the trial, the State, as part of its case, presented F.B.I. Special Agent Keith Howland as a witness to testify to the DNA results. He stated that the DNA found on the victim matched Hill and that the probability of selecting another person at random who was unrelated to Hill with the same set of DNA profiles as Hill was 1 in 10 million in the white population, 1 in 52 million in the black population, and 1 in 1.15 million in the Hispanic population.

The jury found Hill guilty of rape, kidnapping, and third-degree battery, and the 60-year sentence was assessed.

Turning to Hill’s one issue on appeal, it is well-settled that a motion for a continuance is addressed to the sound discretion of the trial court, and the court’s decision will not be reversed absent an abuse of discretion. Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995); King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993); Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990); Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). This court has further held that the denial of a continuance which would deprive an accused of the chance to have an independent review of DNA analysis will be closely examined. Hunter v. State, 316 Ark. 746, 875 S.W.2d 63 (1994); Swanson v. State, 308 Ark. 28, 823 S.W.2d 812 (1992).

Motions for continuance are governed in part by Arkansas Rule of Criminal Procedure 27.3, which provides:

The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

This court has denoted several factors to be considered by the trial court in deciding a continuance motion:

(1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.

Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993); French v. State, 271 Ark. 445, 609 S.W.2d 42 (1980).

Furthermore, our statutes require the moving party to submit an affidavit to justify a continuance once the State has objected to the motion:

(a) A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it.

Ark. Code Ann. § 16-63-402(a) (1987).

We have held that the trial court does not abuse its discretion in denying a continuance, when the motion is not in substantial compliance with the statute requiring an affidavit and due diligence. Wilson v. State, supra; Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994); Cloird v. State, supra. Here, the State objected to the continuance, but Hill filed no affidavit or verified motion in support of his motion. For that reason alone, Hill’s motion should fail. Additionally, there was no showing that the defense had a witness or could procure a witness to conduct a review of the DNA testing. Instead, defense counsel argued that Hill was indigent and could not afford a DNA inquiry, and, in addition, that he had previously been unaware that there were other places that could conduct such a review.

This court has been faced with the issue of a delay in order to allow DNA testing several times in the recent past. In Swanson v. State, 308 Ark. 28, 823 S.W.2d 812 (1992), for example, this court upheld the trial court’s denial of a continuance when the defendant could not provide the name of a potential expert witness, nor offer any hope of procuring the attendance of such a witness in the near future. We stated that what the appellant was seeking was “an open-ended continuance for an unnamed witness” and, thus, the trial court did not abuse its discretion in denying the motion. Swanson, 308 Ark. at 35, 823 S.W.2d at 816. However, in Hunter v. State, 316 Ark. 746, 875 S.W.2d 63 (1994), we reversed the trial court’s denial of a motion for continuance, when the defendant announced that he had located an expert to review the DNA evidence and when the State was dilatory in providing the requested DNA information to the defendant.

The case before us is closer to the fact situation in Swanson v. State, supra. Here, Hill had not located a witness to testify by time of trial and was basically requesting an open-ended continuance to search for some unnamed witness which he might not be able to afford. These circumstances, coupled with the fact that Hill waited until after the trial was in progress to move for a continuance and then filed no affidavit to establish the materiality of the anticipated evidence, support the trial court’s denial of the motion. There was no abuse of discretion.

Affirmed.

       Reference is made in the record that this was the second trial of this matter. An earlier trial in 1993 resulted in a hung jury.


author: Per Curiam.

text:
    Alfred James MILLER v. STATE of Arkansas
    CR 95-129
    902 S.W.2d 228
    Supreme Court of Arkansas
    Opinion delivered July 10, 1995

      Frank E. Shaw, for appellant.
    No response.
   Per Curiam.

Appellant Alfred James Miller through his counsel, Frank E. Shaw, moves to file a belated brief. The record in this case shows that counsel Shaw moved on February 27, 1995, to be relieved as counsel or, in the alternative, for an extension of time to file his brief. The motion to be relieved was denied, and the due date for appellant’s brief was set for March 29, 1995. Appellant tendered his brief approximately two months late on May 26, 1995. Counsel Shaw states in his motion to file a belated brief that it was due on April 28, 1995, and that he did not meet the deadline due to hospitalization and medical infirmities. But, again, the record in the Supreme Court Clerk’s office shows that the brief was due on March 29, 1995.

The motion for belated brief is granted. A copy of this opinion will be sent to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    James ARONSON, M.D. v. Douglas HARRIMAN
    94-1218
    901 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995
    [Rehearing denied September 11, 1995.]

      Mitchell, Williams, Selig, Gates & Woodyard, by; R.T. Beard, III, for appellant.

      Odom, Elliott, Winburn & Watson, by: Bobby Lee Odom, Russell B. Winburn, and Conrad T. Odom, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a medical malpractice case. The appellee, Douglas Harriman, underwent surgery to correct scoliosis, and was left paralyzed from the chest down following the procedure. He brought suit against the appellant, Dr. James Aronson, the orthopedic surgeon who performed the procedure, and certain named malpractice insurance carriers. The case proceeded to trial against separate defendant Dr. Aronson on the issues of negligent medical care and treatment, and on Dr. Aronson’s alleged failure to obtain Mr. Harriman’s informed consent to the procedure. The jury considered these issues separately, and returned a verdict in favor of Dr. Aronson on the issue of medical malpractice, but in favor of Mr. Harriman on the issue of informed consent. The trial court entered judgment against Dr. Aronson in the amount of $931,287.53 in accordance with the jury’s verdict, from which he now appeals. Mr. Harriman cross-appealed the trial court’s order dismissing separate defendant American Insurance Exchange; however, we dismissed Mr. Harriman’s cross-appeal, pursuant to his motion to withdraw.

In presenting his appeal, Dr. Aronson raises three points: (1) that the trial court erred in denying his various motions for directed verdicts, motion in limine, and in submitting the issue of informed consent to the jury; (2) that the issue of informed consent was inappropriate to submit to the jury because Mr. Harriman himself could not state that, if he had been informed that paralysis was a possible complication of the surgery, he would not have undergone the procedure; and (3) that the trial court erred in instructing the jury and submitting an interrogatory to them on the issue of informed consent. We affirm.

Facts

On September 4, 1991, appellee Douglas Harriman, then eighteen years old, underwent surgery at Arkansas Children’s Hospital to correct scoliosis, commonly known as the abnormal curvature of the spine. The surgery, known as a Cotrel-Dubosset (“CD”) instrumentation procedure, which involves the implantation of rods into the spinal column, was performed by the appellee, Dr. James Aronson, an orthopedic surgeon. After the CD rods were inserted and during the stage of procedures known as the “wake-up test,” in which Mr. Harriman was brought to a level of consciousness in order to determine whether he could move his feet and toes, it was determined that Mr. Harriman could not move his feet at all. The rods were then removed, the incision closed, and Mr. Harriman was taken to a recovery room where several other tests were performed. Most unfortunately, following the surgery, Mr. Harriman was left paralyzed from his chest down.

Mr. Harriman filed a complaint in Pulaski County Circuit Court against Dr. Aronson’s malpractice insurance carrier, American Physicians Insurance Exchange (“American”), and St. Paul Fire & Marine Insurance Company (“St. Paul”), the insurance carrier for Arkansas Children’s Hospital, alleging medical negligence. Thereafter, Mr. Harriman amended his complaint to include Dr. Aronson as a separate defendant. The trial court granted American’s motion to dismiss, St. Paul was non-suited, and the case proceeded to trial against Dr. Aronson on the issues of negligent medical care and treatment, and on Dr. Aronson’s alleged failure to obtain Mr. Harriman’s informed consent to the procedure.

At trial, Douglas'Harriman’s mother, Janet Harriman, testified that a school nurse discovered that her son, a diabetic, had scoliosis. After seeing two other physicians, Mrs. Harriman took Douglas to see Dr. Aronson at Arkansas Children’s Hospital, thinking that he would fit Douglas with a brace. According to Mrs. Harriman, Dr. Aronson told them that a brace would not work, as Douglas’ body had grown to maturity, and mentioned the possibility of surgery. During a second visit with Dr. Aron-son, they further discussed the option of surgery, as well as the Harrimans’ concern that Douglas was a diabetic.

During a third visit to the hospital, Douglas underwent an MRI and saw a slide show, which indicated that scoliosis became dangerous when the curvature reached 40 degrees. It was Mrs. Harriman’s testimony that Dr. Aronson had told them that the curvature in Douglas’ spine was 38 degrees, but that he felt that surgery was necessary. Mrs. Harriman further stated that she and her husband, Harlan Harriman, had discussed the surgery, and that their main concern was the idea of their son being anesthetized under his diabetic condition. Mrs. Harriman could not recall Dr. Aronson telling her that paralysis was a risk; furthermore, she stated that she would have remembered had Dr. Aron-son told her of this possibility. According to Mrs. Harriman, when signing the consent form, she asked Dr. Aronson if her son could be disabled, to which he responded, “I have done a number of these operations, and I have never had anything happen yet.”

During cross-examination of Mrs. Harriman, Dr. Aronson sought and obtained admission of a notation in a medical chart by Dr. Neal Lenthicum, a resident physician who treated Douglas, in which Dr. Lenthicum indicated that the risks and benefits of surgery had been discussed with Douglas and his parents, that their questions had been answered, that he had seen Douglas with Dr. Aronson, and that the family understood the procedure and would proceed with surgery. Also admitted into evidence during cross-examination of Mrs. Harriman was a consent form signed by Mrs. Harriman and her son, as well as a progress note written by Dr. Aronson indicating that he had discussed the risks of the procedure with the family, including risks of “neurological damage”; however, no specific mention was made of the possibility of paralysis in the medical chart or consent form.

Douglas’ father, Harlan Harriman, corroborated much of his wife’s testimony,, adding that they had left the decision up to Douglas as to whether to have the surgery. It was his testimony that Dr. Aronson had stated, in December of 1990, that the procedure was one “that had been done many, many times” and that there was no problem with the surgery. While Mr. Harriman stated that the family did not discuss the possibility of paralysis, and that he had never heard any discussion about the possibility of a disability, he later admitted that, after a nurse said something to his wife, the subject of disability did arise, and that a discussion followed. Here again, no specific mention was made of the potential of paralysis.

Dr. John David Warbritton III, a board-certified orthopedic surgeon with a solo practice in Oakland, California, also testified on behalf of Douglas. He stated that, although he had never seen Douglas personally, he had examined his medical records, from which he determined that, as a result of either the incorrect placement of hooks or excessive instrumentation during the procedure, an interruption of blood to Douglas’ spinal cord occurred, causing a spinal stroke and, ultimately, paralysis.

When counsel for Mr. Harriman questioned Dr. Warbritton regarding the standard of care in 1991 for informing patients of complications pertaining to a spinal operation involving instrumentation, Dr. Aronson objected on the grounds that the information elicited had not been provided in discovery, and that Dr. Warbritton was not competent to testify on this issue. The trial court sustained the objection; however, Dr. Warbritton later testified that the opinions he had formulated in Douglas’ case were based upon “a national standard of care for all board-certified orthopedic surgeons.”

At the conclusion of Dr. Warbritton’s testimony, Dr. Aron-son, recognizing from pre-trial discovery that Mr. Harriman had no other experts left to be called as witnesses, moved in limine that Douglas be precluded from testifying on the issue of informed consent on the basis that there was no competent evidence in the record to submit a jury question on the issue. The trial court denied the motion.

Douglas Harriman testified regarding the discovery of his scoliosis, stating that he was in quite a lot of pain during his early high school years. While he remembered that Dr. Aronson had talked with him about the possible infections and his diabetic condition, he stated that he never considered the possibility of paralysis, as Dr. Aronson never mentioned this risk to him prior to the surgery. It was Douglas’ testimony that had Dr. Aronson mentioned the chance of paralysis, he “[couldn’t] say that [he] wouldn’t have had [the surgery], but it would have made the decision a lot harder to decide.”

After Mr. Harriman rested, Dr. Aronson moved for directed verdict based on Mr. Harriman’s failure to produce testimony, as required by Ark. Code Ann. § 16-114-206(b)(l), to show that the information Dr. Aronson provided Douglas did not comply with that given by other medical care providers with the same training and experience at the time of the surgery in the locality in which Dr. Aronson practiced, or in a similar locality. The trial court denied the motion, and Dr. Aronson made yet another motion for directed verdict based upon Mr. Harriman’s alleged failure to state, pursuant to Ark. Code Ann. § 16-114-206 (b)(2)(C), that he would not have had the surgery even had he known of the potential risk of paralysis. The trial court again denied the motion.

Thereafter, Dr. Aronson, a board-certified orthopedic surgeon and a pediatric orthopedic specialist, testified on his own behalf. His credentials in the field on spinal surgery are extensive, which include working with Jean Dubousset in Paris, for whom the CD procedure was named, and with Dr. Harry Shuflebarger, who is widely recognized as the foremost CD spine surgeon in the United States. Dr. Aronson denied telling the Harrimans that it was “mandatory” that Douglas have surgery, stating that he twice explained the risks versus the benefits of surgery to them, as this was the “way he always [did] things.” It was Dr. Aronson’s testimony that, when he explained to the Harrimans the neurological risks involved in operating in the vicinity of the spinal cord, Mrs. Harriman “stepped back and was taken aback,” and asked him if he had ever had that happen, to which he responded in the negative, stating, however, that the risk was one in one thousand. Specifically, Dr. Aronson testified that “neurologic” was a “big term,” and stated that he explained this risk to the Harrimans as follows:

Of course, I explain that that means if you injure a nerve in a hand that means a limited loss of feeling and strength. But if you injure the spinal cord a neurologic problem means paralysis. I discussed that September 3rd in front of all these students with Doug and his family. I discussed it in our second clinic visit well before we scheduled surgery. I would never schedule surgery without discussing that first.

On cross-examination, when asked if he “discussfedj all those things with Douglas Harriman including paralysis,” Dr. Aronson responded affirmatively, stating, “Of course I did.”

Dr. Albert Sanders testified on Dr. Aronson’s behalf, stating that he had reviewed the medical records, x-rays, depositions, as well as the testimony of Dr. Warbritton. It was Dr. Sanders’ opinion that Dr. Aronson’s care and treatment of Douglas was “completely appropriate.” He stated on cross examination that paralysis was a risk with the type of procedure in question, and that it was appropriate to inform the patient of that risk.

At the close of Dr. Aronson’s case, he renewed his motions for directed verdict, incorporating the same arguments in his previous motion at the close of Mr. Harriman’s case, which the trial court denied. Mr. Harriman offered rebuttal testimony, stating that he “remembered no talk ever — ever on the subject even being brought up of paralysis.” Dr. Aronson renewed his motions for directed verdict, which the trial court denied. Thereafter, the trial court instructed the jury separately on the issues of negligence and informed consent. The jury returned a verdict in favor of Dr. Aronson on the issue of medical malpractice, but in favor of Mr. Harriman on the issue of informed consent. The trial court entered judgment against Dr. Aronson in the amount of $931,287.53 on the issue of informed consent, from which Dr. Aronson now appeals.

I. Sufficiency of evidence on informed consent

For his first argument on appeal, Dr. Aronson submits that the trial court erred in denying his various motions for directed verdict, in denying his motion in limine, and in submitting the issue of informed consent to the jury. Particularly, Dr. Aronson asserts that Mr. Harriman failed to present evidence as required by Ark. Code Ann. § 16-114-206(b)(l) (1987), that the information provided to him about the anticipated surgery itself, including the recognized risks and benefits of the procedure, failed to conform with that type of information as would customarily have been given to a patient by orthopedic surgeons practicing in Little Rock or a similar locality in order to obtain Mr. Harriman’s informed consent to the surgical procedure.

Mr. Harriman concedes in his brief that the trial court refused to allow his expert, Dr. John Warbritton, to testify regarding the standard of care for informed consent; however, he asserts that Dr. Aronson introduced certain evidence into the trial which established that paralysis was a risk of the procedure about which a patient would customarily have been advised by an orthopedic surgeon in Little Rock or a similar locality. Specifically, Mr. Harriman contends that there were four critical pieces of evidence which supported the jury’s verdict on informed consent: (1) a notation in the medical chart by Dr. Neal Lenthicum; (2) the consent form; (3) a notation in the medical chart by Dr. Aronson; and (4) the testimony of Dr. Albert Sanders.

The framework for considering the issue of informed consent is set out in Act 709 of 1979, codified at Ark. Code Ann. § 16-114-206(b)(1987), which states, in pertinent part, as follows:

(1) [T]hat type of information regarding the treatment, procedure, or surgery as would customarily have been given to a patient in the position of the injured person ... by other medical care providers with similar training and experience at the time of the treatment, procedure, or surgery in the locality in which the medical care provider practices or in a similar locality.

See also Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995). Shortly after the legislature passed Act 709, we discussed the physician’s duty to warn in Fuller, Adm’x v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980), holding that the physician’s duty to disclose risks is measured by the customary practice of physicians in the community in which he practices or in a similar community. In so holding, we stated that the disclosure standard “always requires expert medical testimony for the jury to determine whether a physician’s failure to disclose constitutes a breach of his duty to disclose.” Id. at 479.

Twelve years later, in Grice v. Atkinson, 308 Ark. 637, 826 S.W.2d 10 (1992), we reaffirmed our position in Fuller in upholding the trial court’s decision to direct a verdict in favor of a dentist where the patient’s expert witness merely stated in a conclusory fashion that the information that the dentist had provided the patient in order to obtain her consent for oral surgery was inadequate. In Grice, we held that the expert’s testimony lacked the “essential constituent of proof’ mandated by Ark. Code Ann. § 16-114-206(b)(l), where there was no attempt to compare the locale of the expert’s practice to that of the dentist, there was no testimony regarding the size, character, availability of facilities, or even the location of the expert’s practice, and where there was no attempt to compare the similarity of medical/dental facilities, practices and advantages available in the dentist’s locality with those existing in comparable localities with which the expert was familiar.

Most recently, we relied on our decision in Fuller in Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995), in affirming the trial court’s granting of summary judgment in favor of a physician on the issue of informed consent, where, upon the trial court’s review of the deposition of the patient’s disclosed expert, the expert could not offer testimony as required by § 16-114-206(b).

Our standard of review in determining the propriety of the trial court’s refusal to direct a verdict is whether the jury’s verdict was supported by substantial evidence, that is, evidence that was sufficient to compel a conclusion one way or the other that goes beyond suspicion or conjecture. Barnes, Quinn, Flake & Anderson v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993). Dr. Aronson made a directed verdict motion at the close of Mr. Harriman’s case specifying the same grounds he now argues on appeal; that is, that Mr. Harriman failed to present the requisite expert testimony pursuant to Ark. Code Ann. § 16-114-206(b)(l). While Dr. Aronson’s abstract indicates that he merely “renewed [his] motions for directed verdict” at the close of Mr. Harriman’s case and at the close of all the evidence, we recently held in Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995), that a criminal defendant is not required to restate his grounds for directed verdict where he has made a specific motion at the close of the State’s case, and incorporates the same arguments by the later renewal. We see no reason not to apply the rule in Durham to civil cases and to this case in particular, as Dr. Aronson made a specific motion at the close of Mr. Harriman’s case as required by Ark. R. Civ. R 50(a), and incorporated the same arguments by the later renewal. As such, we will reach the merits of his arguments.

When reviewing the evidence in a light most favorable to Mr. Harriman, as we are required to do, See e.g. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995), we recognize that, had Dr. Aronson stood on his directed verdict motion at the close of Mr. Harriman’s case, his argument that there was insufficient expert evidence on the issue of the physician’s duty to disclose would be well taken. However, Dr. Aronson waived his objection to the sufficiency of the evidence when he presented his own case. See Durham v. State, supra; Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992). See also Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990).

During the presentation of his case, Dr. Aronson testified on his own behalf, through which he provided the required proof on the physician’s duty to disclose. Specifically, Dr. Aronson testified that he saw Douglas during preoperative rounds along with Dr. Elaine Barber, the chief resident, Dr. Neal Lenthicum, a junior resident, a medical student, and his nurse. It was Dr. Aronson’s testimony that while obtaining Douglas’s consent to surgery, he was instructing the young doctors on this procedure. According to Dr. Aronson, he “always talk[ed] about the following complications, with spine surgery especially,” which included bleeding, infection, the effects of anesthesia, neurological injury, the use of hooks and rods in the procedure, the possibility of hardware failure, and the risk of death. Of particular significance was Dr. Aronson’s statement that “[w]hen you operate on the spinal cord and do scoliosis surgery, there is no way not to talk about the potential for neurologic injury.” Under these circumstances, when considered together with Dr. Albert Sanders’s testimony that paralysis is a risk in spinal surgeries about which a patient should be informed, we cannot say that the trial court erred in denying Dr. Aronson’s motion for directed verdict made at the close of his case and again at the close of all the evidence.

Dr. Albert Sanders, a board-certified orthopedic surgeon practicing in San Antonio, Texas, testified on behalf of Dr. Aronson, stating that, in his opinion, Dr. Aronson’s care and treatment of Douglas in September of 1991 was “completely appropriate” and met the appropriate standard of care of pediatric surgeons in Little Rock or in a similar community. However, on cross examination, Dr. Sanders offered the following testimony concerning the risk of paralysis:

COUNSEL FOR MR. HARRIMAN: You’ve stated that paralysis is a risk of this type of procedure; is that correct?
WITNESS: That is correct.
COUNSEL FOR MR. HARRIMAN: Is it appropriate to inform a patient of that risk?
WITNESS: It is appropriate.
COUNSEL FOR MR. HARRIMAN: Is it inappropriate or is it a breach of the standard of care not to inform them of that risk?
WITNESS: Paralysis is one of the most devastating complications of scoliosis surgery and patients must be informed of it.
COUNSEL FOR MR. HARRIMAN: And if they are not, is it a breach of the standard of care?
WITNESS: That would be.

When considering Dr. Sanders’s testimony that it is a breach of the standard of care to fail to inform a patient of the risk of paralysis, together with Dr. Aronson’s own testimony regarding the standard of care, we must conclude that the trial court did not err in denying Dr. Aronson’s motion for directed verdict.

II. Ark. Code Ann. § 16-114-206(b)(2)(C)

For his second argument on appeal, Dr. Aronson claims that the trial court erred in failing to grant his motion for directed verdict on the grounds that Mr. Harriman failed to comply with the statutory language of Ark. Code Ann. § 16-114-206(b)(2)(C), as Mr. Harriman could not state that he would not have had the surgery even if he had been informed of the risk of paralysis. Stating his argument another way, Dr. Aronson submits that Mr. Harriman failed to meet his burden of proving that Dr. Aronson’s negligence in failing to inform him of the potential of paralysis was a proximate cause of his injuries. During his case in chief, Mr. Harriman testified as follows:

COUNSEL FOR MR. HARRIMAN: If Dr. Aronson had mentioned to you that there was included in the risks the chance of paralysis, what effect would that have had on your decision to have the surgery?
COUNSEL FOR DR. ARONSON: Objection, Your Honor.
THE COURT: Objection be denied.
WITNESS: I wouldn’t — I couldn’t say that I wouldn’t have, but it would have made the decision — I can’t say that I still wouldn’t have had it. I may still have had it, but it would have made the decision a lot harder to decide, I’m sure.
COUNSEL FOR MR. HARRIMAN: Did you consider it at all?
WITNESS: No.
COUNSEL FOR MR. HARRIMAN: When, if anytime, was it mentioned to you by Dr. Aronson prior to surgery?
WITNESS: It never was.

Arkansas Code Annotated § 16-114-206(b)(2) (1987) states as follows:

(2) In determining whether the plaintiff has satisfied the requirements of subdivision (b)(1) of this section, the following matters shall also be considered as material issues:
(C) Whether the injured party would have undergone the treatment, procedure, or surgery regardless of the risk involved or whether he did not wish to be informed thereof.

When looking to the plain language of this subsection, we agree with Mr. Harriman’s assertion that it merely states that whether the injured party would have undergone the procedure regardless of the risk involved is a material issue, rather than a required constituent of proof. Thus, we must address Dr. Aronson’s argument that Mr. Harriman did not prove that Dr. Aronson’s failure to inform him of the risk of paralysis was a proximate cause of his damages.

In support of hi» argument that Mr. Harriman failed to prove the required element of causation, Dr. Aronson asserts that the following passage from a Hofstra Law Review article is directly probative of this issue:

But suppose the plaintiff, despite an awareness of his litigation posture, is so uncertain of how he would have reacted to an adequate disclosure that he can say no more than, “I don’t know.” Should his case be deemed legally sufficient? I think not, for a few reasons. First, such an unenlightening answer indicates that the plaintiff is unable to assert even that his right of self-determination was violated. Since the essence of the cause of action is a frustration of the plaintiff’s right to self-determination, the inability to assert even a probable violation seems to destroy the crux of the action. Since the one person in the world who should best know how he would have reacted to an adequate disclosure has given an unenlightening response, permitting the jury to consider the issue would be an exercise in undue speculation. Rejecting the “I don’t know” response does not unduly impose an “honest” plaintiff; rather, it bases the distinction between a case which is legally sufficient and one which is not on the presence or absence of critical testimony from the “world’s foremost authority” on the subject.

David E. Seidelson, Lack of Informed Consent in Medical Malpractice, 14 Hofstra L. Rev. 621 (1986). Even so, we cannot agree with Dr. Aronson’s position that Mr. Harriman’s failure to state that he absolutely would not have undergone the procedure had he been informed of the risk of paralysis should have precluded the jury from being allowed to reach the issue of informed consent. Instead, we adopt an objective standard for determining the effect of complete information on Mr. Harriman’s decision. Under an objective standard, causation is evaluated in terms of whether a reasonable and prudent patient in Mr. Harriman’s position would have withheld consent to the treatment or procedure had the material risks been disclosed. Pegalis & Wachsman, American Law of Medical Malpractice 2d, § 4:1, pp. 200-201 (Clark Boardman Callaghan 1992). In adopting the objective standard, the Maryland Court of Appeals stated that:

[I]f a subjective standard were applied, the testimony of the plaintiff as to what he would have hypothetically done would be the controlling consideration. Thus, proof of causation under a subjective standard would ultimately turn on the credibility of the hindsight of a person seeking recovery after he had experienced a most undesirable result. Such a test puts the physician in “jeopardy of the patient’s hindsight and bitterness.”

Sard v. Hardy, 379 A.2d 1014, 1025 (Md. 1977) (internal citations omitted.) The objective approach we take permits the jury to take into account Mr. Harriman’s testimony with regard to whether he would have consented to such risks but would not predicate the outcome of the case solely on that testimony.

Our adoption of an objective standard is consistent with Ark. Code Ann. § 16-114-206(b)(2) (1987), which states that testimony of the injured party about what he would have done regardless of the risk is only one factor to be considered material to the determination, rather than dispositive. By adopting this standard, we are in line with a majority of cases which have wrestled with this issue. See Prosser & Keeton on Torts § 32, p. 191 (5th ed. 1984); see also Speiser, Krause, Gans, The American Law of Torts, § 15:73, p. 658 (Lawyers Co-operative Publishing Co. 1987).

In applying this objective standard to the facts at hand, we do not agree that the jury should have been precluded from being allowed to reach the issue of informed consent; as the jury was able to consider Mr. Harriman’s testimony that he was unsure whether he would have undergone the procedure had he known of the risk of paralysis, along with other factors such as whether a patient of ordinary intelligence and awareness in Mr. Harriman’s position could reasonably be expected to know of the risks involved in the procedure, and whether Mr. Harriman actually knew of the risks of the procedure. See Ark. Code Ann. § 16-114-206(b)(2)(A) and (B). Thus, the jury was free to conclude that, with the information that paralysis was in fact a risk, a reasonable prudent patient would not have consented to having the surgery. As there was conflicting testimony as to whether Dr. Aronson informed Mr. Harriman of the risk of paralysis, it was within the province of the jury to weigh the credibility of the witnesses. See Quinney v. Pittman, supra. The jury found, by a preponderance of the evidence, that Dr. Aronson failed to supply to Mr. Harriman that type of information regarding the treatment and surgery as would have been customarily given to a patient in Mr. Hardman’s position by other medical providers with similar training and experience at the time of the treatment and surgery in Little Rock or in a similar locality. Under these circumstances, we conclude that Dr. Aronson’s failure to so advise Mr. Harriman was a proximate cause of Mr. Hardman’s damages, and, thus, Dr. Aronson’s argument on this point is without merit.

III. Informed consent instruction

Dr. Aronson’s final point on appeal is that the trial court erred in instructing the jury on the issue of informed consent. Specifically, Dr. Aronson objected to jury instruction numbers five, six, and nine, arguing that there was a “lack of sufficient competent evidence” to submit the issue of informed consent to the jury. Jury instruction number five was given as follows:

Douglas Harriman claims damages from James Aronson, M.D. and has the burden of proving each of these essential propositions: First, that he has sustained damages; second, that James Aronson, M.D. was negligent or that James Aronson, M.D. failed to give sufficient information to Douglas Harriman to obtain an informed consent.

Dr. Aronson objected to jury instruction number five, which was a modification of Arkansas Model Instruction: Civil 3d 203, as the issue of informed consent was added to this instruction. The trial court overruled Dr. Aronson’s objection.

Also at issue is jury instruction number six, which reads as follows:

You’ll be given three written interrogatories [sic]. These interrogatories present the issues of fact which you must decide.
Second, do you find from a preponderance of the evidence that Dr. James Aronson failed to supply to Douglas Harriman that type of information regarding the treatment and surgery as would customarily have been given a patient in the position of Douglas Harriman by other medical care providers with similar training and experience at the time of the treatment and surgery in this locality or a similar locality?

Dr. Aronson objected to the submission of jury instruction number six on the basis that there was a lack of sufficient competent evidence in the record to submit the issue of informed consent to the jury. The trial court again overruled Dr. Aronson’s objection. Finally, jury instruction number nine was read to the jury, which states that:

Prior to plaintiff’s surgery the physician has a duty to supply to Douglas Harriman that type of information regarding the treatment and surgery as would have been given to a patient in the position of Douglas Harriman by other medical care providers with similar training and experience at the time of the treatment and surgery in the locality in which the medical care provider practices, or in a similar location. A failure to meet this standard is negligence.
In determining whether a physician satisfied his duty to provide information regarding the treatment and procedure, you may consider the following matters: (A) Whether a person of ordinary intelligence and awareness in a position similar to that of Douglas Harriman could reasonably be expected to know of the risk or hazards inherent in such treatment or surgery — and surgery. (B) Whether Douglas Harriman knew of the risk or hazard inherent in such treatment or surgery. (C) Whether Douglas Harriman would have undergone the treatment and surgery regardless of the risk involved, or whether Douglas Harriman did not wish to be informed thereof, and (D) Whether it was reasonable for the physician to limit disclosure of information because such disclosure could be expected to adversely and substantially affect Douglas Harriman’s condition.

It is true that jury instructions stating abstract legal propositions without any evidentiary basis should not be given. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993). As we stated earlier, there was sufficient evidence to submit the issue of informed consent to the jury; likewise, there was a sufficient evidentiary basis which supported the trial court’s decision to give the related instructions on this issue.

Affirmed.


text:
    George M. CALLAHAN et al. v. Mary Ellen CLARK
    94-1361
    901 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      Wright, Lindsey & Jennings, by: James M. Moody and Troy A. Price, for appellants.

      Sloan, Rubens & Peeples, by: Kent J. Rubens and Timothy O. Dudley, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a legal malpractice case arising out of appellant George Callahan’s representation of appellee Mary Ellen Clark in a divorce action. The case was submitted on interrogatories, whereby the jury concluded that Mr. Callahan was negligent in failing to determine the value of the marital business, setting damages at $120,000.00, and in advising Ms. Clark to sign the property settlement agreement awarding damages of $248,000.00 in this regard. The trial court entered judgment against Mr. Callahan and his law firm accordingly.

Mr. Callahan and his law firm appeal, asserting four specific points of error: (1) that the jury’s award of $248,000 for negligence was based on conjecture and speculation, rather than on the required substantial evidence of damages flowing from specific breaches; (2) that the jury’s award of $120,000 for negligent failure to value marital assets could only have been based on conjecture and speculation since the jury did not and could not have found that the court would have awarded such an amount; (3) that the trial court erred in allowing Ms. Clark’s trial counsel to taint the proceedings below with unfairly prejudicial evidence of a supposed ethical violation by Mr. Callahan; and (4) that the trial court erred in refusing to allow Mr. Callahan to introduce evidence that Ms. Clark eventually lost custody of her children, the threat of which strongly bore on her inclination to sign the property settlement agreement. None of these arguments has merit. We affirm.

Facts

In March of 1989, appellee Mary Ellen Clark hired appellant George Callahan, an attorney with the firm of Callahan, Crow, Bachelor, and Newell of Hot Springs, to obtain what she thought would be an uncontested divorce from her husband, Harvey Clark, to whom she had been married for over eight years. When Ms. Clark first met with Mr. Callahan, she outlined her objectives in the divorce as follows: (1) that she receive custody of the couple’s four children; (2) that she retain some role in operation of their business, Clark Industries, Inc., which produced replacement parts for classic cars, and which was operated out of a “shop” building on a small piece of land adjacent to the marital residence; and (3) that she obtain a steady income for herself and her children.

Shortly after Ms. Clark’s initial meeting with Mr. Callahan, the divorce proceedings became bitterly contested. Mr. Clark sought custody of the children, and the business became the subject of much disagreement. Particularly, the Clarks accused each other of draining business assets and improperly using business funds, and the Internal Revenue Service ultimately imposed a tax lien on the business, with the Clarks facing personal liability for failure to withhold payroll taxes. Thereafter, the chancellor appointed Robert Ridgeway, an attorney who had previously represented the Clarks, as a special master to oversee Clark Industries.

Following the exchange of several drafts, the Clarks executed a settlement agreement in January of 1990 relating to both custody and division of their marital property. Ms. Clark was awarded custody of the children, and Mr. Clark agreed to pay $1200 per month in child support. Although Ms. Clark was no longer living there, she became the owner of the marital residence and the land on which the shop was located. Mr. Clark was permitted to continue to operate the business, but was required to pay Ms. Clark $3000 per month in rent for a period of five years for use of the property. In turn, Ms. Clark agreed to transfer all of her stock in the business to Mr. Clark, who, upon execution of the agreement, paid Ms. Clark $10,000 cash, $3000 in vacation pay, and $2766.33 in reimbursement for sums Ms. Clark had advanced to the business. Additionally, Mr. Clark paid $10,000 toward Mr. Callahan’s attorney’s fees, and agreed to assume full responsibility for the outstanding taxes reflected in the tax lien.

The property settlement agreement contained provisions that imposed responsibilities and risks on both parties, which included the condition that if Ms. Clark defaulted on the mortgage payments for either the marital residence or the shop, Mr. Clark could reclaim and obtain ownership of both pieces of property by paying the overdue payments and attorneys fees or costs. Conversely, if Mr. Clark defaulted on any of his required payments, Ms. Clark was given the right to reenter the premises of the business and to attach and sell all corporate assets.

In May of 1990, some four months after executing the settlement agreement, the bank note on the shop property became due and Mr. Clark refused to sign an extension of the note; thus, Ms. Clark was unable to refinance her loan. The bank initiated foreclosure proceedings, and Mr. Clark exercised his right under the agreement to reclaim the house and shop, and terminated the $3000 per month lease payments to Ms. Clark. Thereafter, Ms. Clark filed an action for malpractice against Mr. Callahan and his law firm, alleging, among other things, that he was negligent both in failing to have Clark Industries valued, and in advising her to sign the property settlement agreement. She amended her complaint to include Robert Ridgeway, the special master, as a separate defendant, but the trial court later dismissed Mr. Ridge-way upon Ms. Clark’s motion.

The case proceeded to trial. Ms. Clark’s first witness was the appellant, Mr. Callahan, who stated that he had been practicing law for 26 years. In order to value Clark Industries, he examined four to five years of tax returns, financials that Ms. Clark and Elaine Simpson, Ms. Clark’s sister and part-time bookkeeper for Clark Industries, had provided to him, and the master’s full reports containing accounts receivable and accounts payable information. In addition to reviewing these documents, Mr. Callahan walked through the business and looked at the equipment, and telephoned Ron Reagan, the owner of Chemfab, a similar business which manufactured aircraft parts, who advised him that liquidation of Clark Industries would not be in Ms. Clark’s best interests.

As it was his understanding that custody was Ms. Clark’s top priority, Mr. Callahan stated that he knew she would have to make some concessions with regard to the business, recognizing that the Clarks could not jointly operate the business, and that its real value was the genius of Mr. Clark, who had the contacts and identified the market. According to Mr. Callahan, he was able to give Mr. Clark much of the marital debt in the agreement, and obtained for Ms. Clark substantial hard assets — the real estate, home, building, and other personal property. Mr. Callahan testified that he explained to Ms. Clark that pursuant to the agreement, both parties ran substantial risks; however, he stated that he did not know that the bank would not let the $24,000 note on the shop be refinanced unless both parties signed it, and that he did not check with the bank as to whether Mr. Clark’s signature would be required. He explained that there was never any presumption that Mr. Clark would be responsible for the note, as Ms. Clark had told him that she would not go back to One Bank, who had the note, as she did not like their rate of interest. According to Mr. Callahan, Ms. Clark “constantly reassured” him that she would be able to refinance the note and deal with the risk.

Patty Ann Lueken, a licensed attorney since 1989, testified as an expert witness on behalf of Ms. Clark, stating that 50 percent of her practice was devoted to domestic relations cases. She reviewed the files in the case, and offered her opinion that, a deposition or set of interrogatories would have been very helpful in order to value Clark Industries. Particularly, she stated that she would have taken Mr. Clark’s deposition in order to determine what he thought the value of the company was, and would have used his deposition as a negotiating tool. It was Ms. Lueken’s opinion that it was necessary to get an expert as to the value of the business in the case, and that Mr. Callahan failed to meet the applicable standard of care in his representation of Ms. Clark.

According to Ms. Lueken, paragraph 19, the default provision of the property settlement agreement, put Ms. Clark in a terrible position in that if she could not renew the note on the shop in May of 1990, she ended up with nothing, with the exception of a party barge, a Bronco, and some other personal items. This provision reads as follows:

In the event that the Wife defaults on the mortgage payment for either the home or the shop building note or notes, the Husband has the right to bu_y back the home, the land the home is situated on, the shop building and the land that the shop building is situated on by paying only the back payments owed at that time plus attorney’s fees or other costs in order to bring the note or notes current. The default by the Wife on these payments is agreed by the parties to be defined as late payments sufficient to necessitate legal action by the filing of a Complaint for Foreclosure in order to collect these past due amounts by an attorney.

It was Ms. Lueken’s opinion that Mr. Callahan, in advising Ms. Clark to sign this agreement containing this provision, should have been aware of what liabilities Ms. Clark had, as his file clearly showed that she was not going to be able to renew the note, as it reflected that some of her credit cards had been cut off, the Bronco payment was behind, and that there were IRS liens for which she was partially responsible. According to Ms. Lueken, this provision provided that, in the event that Ms. Clark defaulted, Mr. Clark would get whatever was left over after foreclosure, without having to pay any of the equity in the shop or the remaining portion of the $180,000 lease payment to Ms. Clark. Moreover, the lease payment, Ms. Lueken stated, would actually be paid by Clark Industries, which was owned by Mr. Clark. After costs, Ms. Lueken estimated that Mr. Clark would receive an additional $70,000 to $80,000 as a result of this provision.

Philip Dixon, a licensed attorney since 1960 with 60 to 70 percent of his practice devoted to domestic relations, testified out of turn as an expert witness on behalf of Mr. Callahan. It was his opinion, after reviewing the files in the case, that Mr. Callahan met the applicable standard of care and performed the due diligence that was required of him in the representation of Ms. Clark. It was Mr. Dixon’s opinion that Mr. Callahan had more discovery and more information available to him overall than many attorneys get throughout a lawsuit, specifically referring to the reports of the master. He testified that he had reviewed the deposition of Dr. Ralph Scott, Ms. Clark’s economist, and that he disagreed with his assumptions made in arriving at his figures. Particularly, he stated that Dr. Scott assumed that both parties could walk away from the business and still continue to have an income stream of $100,000.

Regarding paragraph 19 of the agreement, Mr. Dixon stated that he was aware that Ms. Lueken had criticized Mr. Callahan for not having Mr. Clark personally guarantee the lease agreement, or in not having him agree in writing to help Ms. Clark renew the note. It was Mr. Dixon’s opinion that, as Mr. Callahan had stated that he had counseled Ms. Clark regarding her debts and that she assured him that she had the means to take care of the situation, Mr. Callahan’s conduct in advising Ms. Clark to sign the property settlement agreement, which included the provision in paragraph 19, was reasonable under the circumstances. On cross-examination, however, Mr. Dixon stated that he had never seen a default provision like the one in paragraph 19 of the agreement.

Elaine Simpson testified on her sister’s behalf, as she had done some bookkeeping at Clark Industries. She stated that she was present at a few meetings between Ms. Clark and Mr. Callahan, and that she had given Mr. Callahan a note reading, “If we do not have someone do a current inventory of assets currently at this plant, Mary will lose thousands of dollars as this list doesn’t include the hundreds of dies nor a large portion of tools in the tool and die shop. These are high dollar values.” Ms. Simpson further stated that she did not receive a response to her note; rather, Mr. Callahan repeatedly requested her sister to make lists. At one meeting for settlement negotiations, Ms. Simpson claimed that there was a discussion as to whether Mr. Clark would be required to sign the renewal note for the shop when it came up at One Bank in May of 1990. According to Ms. Simpson, Mr. Clark, who was present at the meeting with his attorney, agreed to keep his name on the note for five years.

Mary Clark testified as to her involvement in Clark Industries, stating that she talked to Mr. Callahan numerous times about obtaining an inventory of the business. It was her testimony that she did not want to sign the agreement with the default provisions in paragraph 19, but that Mr. Callahan insisted that it had to be there without explaining why. She further testified that Mr. Callahan knew that Mr. Clark’s name had to remain on the note for the shop, and that Mr. Callahan assured her that paragraph 30 of the agreement obligated Mr. Clark to sign the extension in May of 1990. Paragraph 30 states as follows:

That each of the parties agree to cooperate with the other in executing such instruments as shall be necessary to perform the agreements herein contained, and each of the parties do hereby bind themselves and their respective personal representatives, heirs and assigns to perform and keep the agreements herein contained.

In May of 1990, when Mr. Clark refused to sign the extension agreement, Ms. Clark stated that she tried to extend it on her own with another bank, but her credit was too bad.

Over Mr. Callahan’s objection, Dr. Ralph Scott, an economist, testified that he valued the business based on the year 1988, stating that it grew steadily up until that time. He calculated owner compensation at $113,000 and subtracted corporate loss of $20,735 for a total of $92,266 as a measure of the Clark’s compensation. From that figure, Dr. Scott subtracted $30,000, based on a Department of Labor publication, for what it would have cost the Clarks to hire a bookkeeper, thus leaving $62,266. He used this figure to make a projection for the next 15 years, or Ms. Clark’s work life expectancy, arriving at a figure of $692,297, one-half of which is $346,148. From listening to the testimony, Dr. Scott opined that one-half of the outstanding tax liability should be subtracted from this amount. He further stated that he would have arrived at a much higher figure had he factored in growth of the company and fringe benefits. He compared the business to a physician’s practice, stating that it should be viewed as an asset that is going to generate income like a stock or bond.

At the close of Ms. Clark’s case, Mr. Callahan made specific motions for directed verdict based on lack of competent evidence that any act or omission on his part proximately caused damages, and on lack' of competent evidence from which the jury could reach a verdict without speculation as to how a chancellor could effect a remedy which would have entitled Ms. Clark to one half of the business. The trial court denied both motions, and Mr. Callahan presented the testimony of Stephany Slagle, the attorney for Mr. Clark during the divorce proceeding, who testified as to the complexity of the case. She stated that if no agreement had been reached and the company had to be liquidated according to the usual practice in Garland County, it would have destroyed both Mr. Clark and Ms. Clark financially. She stated that there was never a meeting at which she, Ms. Simpson, Mr. Clark, and Ms. Clark were present where Mr. Clark made a promise that he would renew the note in May of 1990. She stated that she would have remembered such a promise had one been made, as she would not have believed it. Ms. Slagle further opined that in August 1989, the business could not be valued without knowing what Ms. Clark had done, as she was paying for her race horses, personal vehicle, babysitters, and other things which were completely out of Mr. Clark’s control. In December of 1989, according to Ms. Slagle, the business was “worth very little, if not in the hole.” Like Mr. Callahan, Ms. Slagle did not hire an appraiser or anyone to make a valuation of the business.

Harvey Clark testified that by the fall of 1989, he did not think the business would break even with the debt he and Ms. Clark had. He stated that he told his wife that he would sign the note until the time the divorce was final. According to Mr. Clark, when she raised the question about his signing the note during one of the final negotiation sessions, she retracted her question, stating that she was going to refinance the note, and that she thought she might sell it. Mr. Clark testified that, had his signature on the note been proposed as a condition to the agreement, he did not think that he would sign it, stating that he would not want to secure something for his landlord.

Mr. Callahan renewed all motions and objections at the conclusion of all of the evidence, which the trial court denied. The trial court submitted separate interrogatories to the jury, from which the jury found Mr. Callahan negligent in advising Ms. Clark to sign the settlement agreement, and that she sustained damages in the amount of $248,000. Mr. Callahan appeals.

I. Jury award for negligence

For his first allegation of error, Mr. Callahan asserts that the jury’s award of $248,000 for negligence in advising Ms. Clark to sign the property settlement agreement was based on conjecture and speculation, rather than on the required substantial evidence of damages flowing from specified breaches. This amount was obviously predicated on the $3000 per month lease payments Ms. Clark lost, calculated as 60 required payments or $180,000, less ten payments made or $30,000, for a subtotal of $150,000, together with $98,000 in equity she had in the marital home, for a total of $248,000 — the exact amount of the verdict.

As Mr. Callahan appeals from the trial court’s denial of his motion for directed verdict as to proof of negligence and resulting damages, he is challenging the sufficiency of the evidence. Our standard in reviewing the sufficiency of the evidence is well settled: (1) The evidence is viewed in a light most favorable to the non-moving party; (2) the jury’s finding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce the mind of the factfinder past speculation and conjecture. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995). Moreover, to prove negligence in Arkansas, the plaintiff must show that he or she suffered damages proximately caused by the defendant’s negligence. Vanderford v. Penix, 39 F.3d 209 (8th Cir. 1994), citing Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993). To show damages and proximate cause in a legal malpractice action, the plaintiff must show that but for the alleged negligence, the result would have been different in the underlying action. Vanderford v. Penix, supra. In Arkansas, an attorney is negligent if he fails to exercise reasonable diligence and skill on behalf of his client. Id., citing Arkansas Kraft v. Cottrell, supra, Welder v. Mercer, 247 Ark. 999, 448 S.W.2d 952 (1970).

In support of his argument that Ms. Clark failed to prove that Mr. Clark would have agreed to a more favorable settlement, or that litigation to judgment would have yielded a better result, Mr. Callahan relies in part on the following passage from Roger E. Mallen’s and Jeffrey M. Smith’s recent treatise on attorney malpractice, in which they state as follows:

Assuming a cause of action [for negligent settlement] can be stated, the client must not only establish that concluding such a settlement fell outside the standard of care, but also what would have been a reasonable settlement and that such sum would have been agreed to and collectible.
In evaluating and recommending a settlement, the attorney has broad discretion and is not liable for a mere error in judgment.

Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 24.36 at 521 (1989). However, Mallen and Smith also speak on speculative damages as follows:

The general rule is that an attorney is not liable for any damages which are remote or speculative. The test of whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but rather the more basic question of whether there are identifiable damages ... No one can precisely say what the plaintiff lost or should have lost in such situations, but difficulty or imprecision in calculating damages does not exculpate the attorney. Even though damages cannot be calculated precisely, they can be estimated. Otherwise, attorneys could avoid liability merely because damages are difficult to measure.

Mallen & Smith, § 16.3 at 894-895 (1989). (Emphasis added.)

In reviewing the evidence before us, we ascertain that sufficient facts existed by which the jury could find evidence of negligence, and from which the jury could identify and assess damages which were not remote or speculative. As such, a final resolve of this case hinged on which witnesses the jury chose to believe.

We have long stated that it is the province of the jury to weigh the credibility of the witnesses. Quinney v. Pittman, supra. As such, the jury was free to believe the testimony of Ms. Clark and her sister, Ms. Simpson, over that of the other witnesses, that Mr. Callahan assured Ms. Clark that the agreement required Mr. Clark to extend the note in May of 1990 and beyond, and that Mr. Clark had verbally agreed to sign the extension. In light of Ms. Lueken’s testimony that Mr. Callahan should have included a provision in paragraph 19 that Mr. Clark either personally guarantee the lease agreement, or that he agree in writing to help Ms. Clark renew the note, the jury could have reasonably concluded that either a guarantee or an agreement to help renew the note should have been made a part of the contract. There was also testimony from Ms. Lueken that Mr. Callahan should have been aware of what liabilities Ms. Clark had, as his file clearly showed that, due to her numerous expenses, she was not going to be able to renew the note. Even Mr. Dixon, Mr. Callahan’s own expert, testified that in his 35 years of practice, he had never seen a default provision like the one in paragraph 19 of the settlement agreement, which operated in Mr. Ciark’s favor when Ms. Clark defaulted on the shop note.

As Ms. Clark correctly states in her brief, her damages were indeed identifiable, for her default was a result of Mr. Clark not being required to sign the renewal on the shop note. As mentioned previously, Ms. Clark lost $150,000 in lease payments and $98,000 in equity she had in the marital home totally $248,000, the amount of the jury verdict. Under these circumstances, we cannot say that the trial court erred in failing to direct a verdict in Mr. Callahan’s favor, as there was substantial evidence to support both the jury’s finding on interrogatories that Mr. Callahan was negligent in advising Ms. Clark to sign the property settlement agreement, and that Ms. Clark sustained damages in the amount of $248,000.

II. Failure to value business

For his second argument on appeal, Mr. Callahan asserts that the jury’s award for $120,000 for negligent failure to value marital assets could have only been based on conjecture and speculation, since the jury did not and could not state that the court would have awarded that amount. In his reply brief, Mr. Callahan concedes that this issue is only relevant if we hold in his favor on the first issue. As stated above, we find no merit to Mr. Callahan’s first point on appeal; thus, we need not address his second argument.

III. Ethical inquiry

Mr. Callahan further argues that the trial court erred in allowing Ms. Clark’s counsel to taint the proceedings below with unfairly prejudicial evidence of a supposed ethical violation. Ms. Clark called Mr. Callahan as her first witness, and he was questioned about a letter that he had written to her in April of 1989, in which he set a minimum fee of $2500, and stated that her divorce would not be finalized until her account with his firm was paid in full. When counsel for Ms. Clark inquired as to whether this was a proper fee arrangement, Mr. Callahan replied that “There’s some disagreement about that,” stating that, “There is an ethical opinion that says that if your client cannot pay you, that you must continue to represent her and to see that her rights are protected regardless of whether you are paid or not.” After Mr. Callahan offered further testimony regarding his fees, counsel for Mr. Callahan made a relevancy objection, which the trial court overruled. Thereafter, the trial court admitted into evidence, over Mr. Callahan’s relevancy objection, legal bills that Mr. Callahan had sent Ms. Clark, finding that the bills could be used to attack Mr. Callahan’s credibility. During cross-examination of Mr. Callahan’s expert, Phillip Dixon, Ms. Clark was allowed to question him, over Mr. Callahan’s objection, regarding his opinion as to whether Mr. Callahan’s fee arrangement was ethical. Finally, during closing argument, counsel for Ms. Clark stated as follows:

Mr. Dixon . .. told you that the first thing [Mr. Callahan] did was unethical. He wrote a fee agreement that said, “We are not going to enter a divorce decree until you have paid all of our fee.”
Under our rules of ethics, as Mr. Dixon told you that is an unethical thing for a lawyer to do. The very first thing he did in this case, writing the fee agreement, was unethical and had to do with money.

We need not explore this issue further, as Mr. Callahan did not make a contemporaneous objection to the admission of this testimony; instead, he allowed counsel for Ms. Clark to ask some 17 additional questions before registering an objection with the trial court. A contemporaneous objection is necessary in order to preserve an issue for appellate review. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). As Mr. Callahan had offered similar testimony, Mr. Dixon’s testimony on this issue was merely cumulative. We will not find prejudicial error where the evidence erroneously admitted was merely cumulative. Williams v. Southwestern Bell, 319 Ark. 626, 893 S.W.2d 770 (1995). Thus, the admission of Mr. Dixon’s testimony was harmless error. As to comments made by Ms. Clark’s counsel during closing argument, we find no objection made by Mr. Callahan in the abstract or in the record. Under these circumstances, Mr. Callahan’s argument is without merit.

IV Evidence regarding custody

Finally, Mr. Callahan asserts that the trial court erred in refusing to allow him to introduce evidence that Ms. Clark eventually lost custody of her children, the threat of which strongly bore on her inclination to sign the property settlement agreement. He contends that if the jury had been made aware of Mr. Clark’s strong desire to obtain custody, “it might well have evaluated Callahan’s advice in a different light.”

The trial court sustained Ms. Clark’s relevancy objection to this evidence, stating that it was “after the fact” evidence, and that it might lead to more rebuttal testimony. We have often stated that the trial court determines the relevancy, competency, and probative value of testimony; it is within the trial court’s discretion whether to admit testimony, and its decision will not be reversed absent a manifest abuse of discretion. Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W.2d 366 (1992). As Mr. Clark obtained custody after the alleged acts of malpractice took place, we cannot conclude that the trial court abused its discretion in refusing to allow this testimony on relevancy grounds. Thus, Mr. Callahan’s argument is without merit.

Affirmed.