author: Steele Hays, Justice. Robert L. Brown, Justice,

text:
    B & F ENGINEERING, INC. v. Michael COTRONEO
    91-217
    830 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered April 20, 1992

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Munson and Valerie Denton, for appellant.

      Kitterman Law Firm, by: Gregory S. Kitterman', and Perroni, Rawls, Looney & Barnes, by: Samuel A. Perroni, for appellee.
   Steele Hays, Justice.

This is a tort case arising from an automobile accident. On the afternoon of October 23, 1990, the appellee, Michael Cotroneo, was driving his pickup truck westbound on Interstate 30 when he was struck head-on by a vehicle driven by G.W. Franks. The Franks vehicle was owned by the appellant, B & F Engineering, Inc. (B & F), Frank’s employer. Franks was intoxicated and driving on the wrong side of the highway. G.W. Franks died following the collision and Michael Cotroneo sustained serious injuries, as did his passenger, Anthony Martin.

Two lawsuits were filed as a result of the collision. Anthony Martin filed suit in November of 1990 in Saline Circuit Court against Martin Eisele, Special Administrator for G.W. Franks, deceased, and B & F Engineering. That complaint was answered in a timely manner. The other lawsuit was filed against B & F on January 25, 1991, by Michael Cotroneo. Cotroneo’s summons and complaint were properly served on Donald Beavers, agent for B & F, who forwarded them to B & F’s liability insurer. No answer was filed on behalf of B & F in response to Cotroneo’s complaint.

On February 19, 1991, Cotroneo filed a motion for default judgment alleging that more than twenty days had elapsed since B & F was served and it had failed to respond. Nine days later B & F filed a general denial and response to the default judgment motion, asserting that its failure to answer was due to mistake, inadvertence or excusable neglect by its insurer in falling to notify counsel of the complaint. The response also asked the court to extend the time for B & F to file an answer pursuant to Ark. R. Civ. P. 6, to deny Cotroneo’s motion for default judgment and to consolidate the two actions arising out of the same accident. Attached to the response was an affidavit of Samuel M. Mingledorff, Senior Claims Examiner for the Nashville Regional Office of the State Auto Insurance Companies. In his affidavit Mingledorff stated that he had received by facsimile transmission a complaint and summons styled Michael Cotroneo v. B & F Engineering, Inc., but he failed to recognize that it was a separate cause of action from the suit entitled Martin v. Eisele, Special Administrator for G. W. Franks, Deceased and B & F Engineering, Inc., arising out of the same accident and which the insurance company was already defending. Due to that misconception, he did not notify counsel of the second summons and complaint.

After a hearing on the motion for default judgment, the Saline Circuit Court entered a default judgment against B & F and scheduled a jury trial on the issue of damages. The jury awarded Cotroneo one million four hundred thousand dollars compensatory damages and one million dollars in punitive damages. B & F raises four points of error on appeal.

The first point on appeal is whether the trial court erred in entering an order of default judgment against B & F. Cotroneo contends that B & F waived its right to raise this issue on appeal by failing to file a motion to set aside a default judgment. The grounds for setting aside such entries are in Rule 55(c) of the Arkansas Rules of Civil Procedure. B & F argues, however, that since it requested an extension of time to file its answer before the default judgment was actually entered, Ark. R. Civ. P. 6(b) applies.

B & F’s response to Cotroneo’s default judgment motion asked the court to deny the motion. A hearing was held in which the appellant argued against entry of the default judgment. We have not had the opportunity to consider this issue since the 1990 amendment to Rule 55. Accordingly, we have turned to federal court decisions since the standard for setting aside a default judgment in Ark. R. Civ. P. 55(c) is taken from the federal rule and should be interpreted in accordance with federal case law. See Addition to Reporter’s Notes to Rule 55, 1990 Amendment. The federal courts regard opposition to a motion for entry of a default judgment as a motion to set aside a default judgment, hence, Rule 55 governs the resolution of this issue. See Kohlik v. Atlantic Corp. Inc., 112 F.R.D. 146 (S.D.N.Y/1986); United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705 F.2d 839 (6th Cir. 1983); Breuer Electric Mfg. Co. v. Toronado Systems of America, Inc., 687 F.2d 182 (7th Cir. 1982); Meehan v. Snow, 652 F.2d 274 (2nd Cir. 1981); 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2692 (1983); 21 Federal Procedure, L. Ed. § 51:17 (1984).

The standard by which we review the granting or denial of a motion to vacate a default judgment is whether the trial court abused its discretion. Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984). Default judgments are not favorites of the law and should be avoided when possible. Id. In fact, the purpose for the 1990 amendment to Ark. R. Civ. P. 55 was to liberalize Arkansas practice regarding default judgments and the revised rule reflects a preference for deciding cases on the merits rather than on technicalities. See Addition to Reporter’s Notes to Rule 55, 1990 Amendment.

That observation may seem inconsistent with our affirmance of the default judgment in this case; however, we do not mean to retreat from the intent and spirit of the recent amendment to Rule 55 and choosing between those conflicting policies in this case was not an easy task. While we subscribe to the concept of efficient and expeditious disposition of litigation, we recognize as well that the interests of justice are generally best served when cases are resolved on the'merits. Nevertheless, under the circumstances of this case we are constrained to hold that the trial court did not abuse its discretion by granting the default judgment in favor of the appellant. To hold otherwise would, we believe, give sanction to a slipshod treatment of writs of summons by defendants.

Arkansas R. Civ. P. 55(c) provides that a court may set aside a default judgment previously entered if it finds that the default was due to mistake, inadvertence, surprise or excusable neglect. ■The appellant argues that the insurance company’s failure to recognize that the complaint concerned a different lawsuit could only be characterized as a mistake.

“The court’s have not been particularly liberal in granting relief from defaults attributable to the inaction of insurance companies which have assumed the defense of lawsuits against their insureds.” 21 Federal Procedure, L. Ed. § 51:22 (1984). See also Pena v. Seguros La Comerial, S.A. 770 F.2d 811 (9th Cir. 1985); Spica v. Garczynski, 78 F.R.D. 134 (E.D. Pa. 1978); Davis v. Safeway Stores, Inc., 5342 F.2d 489 (5th Cir. 1976); Robinson v. Bantam Books, Inc., 49 F.R.D. 139 (S.D.N.Y. 1979); Wagg v. Hall, 42 F.R.D. 589 (E.D. Pa. 1967). However, there are cases to the contrary, and, ironically, we find one particularly informative when compared with the facts of the instant case, even though the opposite result was reached. In Stuski v. United States Lines Co., 31 F.R.D. 188 (E.D. Pa. 1962), a negligence action, it was shown that the plaintiff had instituted another action against the defendant utilizing a substantially identical complaint. Defense counsel contended that because the complaints were virtually identical the insurer must have confused them so that its failure to return the one involved in the second case was due to mistake. The court accepted this argument and granted the motion to set aside a default judgment noting that the defendant had not been guilty of any gross neglect, that no prejudice would result to the plaintiff from setting aside the default and that the defendant had a meritorious defense to the action.

Like the Stuski court, we see no substantial prejudice to the appellee in this case from setting aside the default, however, Stuski is distinguishable and instructive in two respects. First, the style of the two pleadings that were confused in Stuski were identical, whereas in this case the two styles had marked dissimilarities. The plaintiffs were different and Cotroneo’s complaint was solely against B & F whereas the other lawsuit named an additional defendant. We think the Stuski incident represents the type of “mistake” Rule 55(c) seeks to remedy while the error by the insurer in this case must be classified as inexcusable neglect. We are aware of no case that would require us to set aside a default judgment when any mistake was made by a defaulting party. That would render almost meaningless the discretion a trial court has when deciding a motion to set aside a default judgment. We believe the more reasoned approach is to consider the nature of an alleged mistake on a case by case basis.

The second difference is that in Stuski the defaulting party had a meritorious defense and here the defense counsel did not offer any defense on the merits to the original action. Arkansas R. Civ. P. 55(c) states in part, “[t]he party seeking to have the judgment set aside must demonstrate a meritorious defense to the action. . . .” The federal courts also require some showing of a meritorious defense before granting relief from a default judgment. 10 C. Wright, A. Miller & M. Kane, supra at § 2697; 21 Federal Procedure, L. Ed, supra at § 51-23. A majority of courts that have considered the question refuse to accept general denials or conclusory statements that a defense exists and “the only real exception to the requirement is where the judgment is void, such as for lack of jurisdiction.” 21 Federal Procedure, L. Ed., supra; see also Bruce v. Paxton, 31 F.R.D. 197 (E.D. Ark. 1962). The underlying basis for this theory is to determine whether there is a possibility that, after a full trial, the outcome of the suit would be contrary to the result achieved by the default. Id. Finding an abuse of discretion where the appellant offers no defense is difficult to say the least.

For its second point, B & F contends that it was error for the trial court to exclude evidence it proffered in mitigation of punitive damages. The evidence the court refused to admit was testimony, from B & F’s current and past presidents, that Franks was a dependable employee and had never had any problem with drinking and driving company trucks. Also, the custodian of records from the Department of Finance was prepared to testify that Franks’ record showed no citation for the three years ending in October 1990 and an earlier search of the records showed no violation of sufficient number of points which would cause a record to be kept on Franks. In refusing to allow the appellant to admit the evidence set forth above, the court stated that the evidence applied to the phase of facts that are in the complaint and it contradicts the facts admitted by the default judgment.

Under the Arkansas Rules of Civil Procedure a default judgment establishes liability, but not the extent of damages. Proof is still required to establish the amount of damages except in suits in which a verified account has been submitted. After default the defendant has the right to cross-examine the plaintiff’s witnesses, to introduce evidence in mitigation of damages, and to question on appeal the sufficiency of the evidence to support the amount of damages awarded. The defaulting defendant may not introduce evidence to defeat the plaintiff s cause of action. H. Brill, Ark. Law of Damages (2nd ed.), § 8-1 (1990). [Emphasis added.]

There is a fine line between contradiction and mitigation in this context. But in this case it appears the appellant sought to circumvent the allegation in Cotroneo’s complaint that B & F had knowledge of Franks’s propensity to drink and drive, therefore, the court did not err in excluding it.

B & F also challenges the trial court’s decision to allow certain testimony by Dr. Charles Venus. Dr. Venus testified as an expert for the appellee regarding dollar figures he had computed concerning the appellee’s loss of income and loss of household services. Dr. Venus calculated his present value figures when he was under the assumption that the appellee was one hundred percent disabled and testified to two dollar amounts for loss of future income and loss of household services, $629,688 and $99,807, respectively. Venus testified that if it was determined that Cotroneo’s disability was less than one hundred percent, then the calculations would be based upon the correct percentage. On cross-examination the figures based upon twenty-four percent disability came into evidence because prior to Venus’s testimony, Cotroneo’s treating physician testified that the appellee had a twenty-four percent anatomical impairment. The appellant argues the figures based upon the appellee having one hundred percent disability were misleading and confusing to the jury.

Any prejudice associated with its introduction was alleviated by the admission of the correct figures and Dr. Venus’s instruction to reduce the calculations proportionately if the disability was less than one hundred percent. When there is a conflict in the evidence the determination by the jury of the issues is conclusive. Butler Mfg. Co. v. Hughs, 292 Ark. 198, 729 S. W.2d 142 (1987). Moreover, the weight and value to be given to the testimony of expert witnesses is the exclusive province of the jury. Id.

For its final allegation of error the appellant argues that the damages awarded are so excessive that they appear to have been given under the influence of passion or prejudice.

In W.M. Bashlin Co. v. Smith, 277 Ark. 406, 463 S.W.2d 526 (1982), this court held the question is whether the verdict “shocks the conscience” of the court or demonstrates that jurors were motivated by passion or prejudice.

The appellee presented extensive evidence of his medical injuries suffered as a result of the accident and the fact that Cotroneo was an active man who engaged in physical labor as a carpenter prior to the accident. Dr. David Barnett, an orthopedic surgeon who treated the appellee, testified about his injuries. Barnett testified that upon arrival in the emergency room after the accident Cotroneo had a very severe fracture of his right foot and his heel bone. With reference to his foot, the bone was literally crushed and pushed off to the side when it was broken, leaving the bone bulging out the side of the foot. As the bone was pushed outward the arteries, nerves and tendons were displaced. Cotroneo suffered permanent damage to his heel pad which Barnett characterized as like walking on bone. The doctor testified that when the surgeons took Cotroneo to surgery to stabilize the bone they could see that it was so broken that there was no way to fully repair it. Cotroneo’s foot also required skin grafts because the accident removed the skin over an area of his foot. By the time of trial he had undergone four operations and had developed severe traumatic arthritis. He also had an unstable fracture of his forearm on the right with a dislocation in the wrist of that bone. He had facial fractures, a skull fracture and in general, had multiple trauma where there were bruises and contusions.

Dr. Bob Moffett, Cotroneo’s plastic surgeon, testified about the broken bones, lacerations and bruises to the face. Cotroneo fractured his jaw bone and hinges, his nose, cheek bones and the bottom portion of his skull. After Cotroneo had been stabilized Moffett had to wire his teeth together and perform a tracheotomy to provide an airway. Moffett testified that he had performed five surgeries on Cotroneo’s face and that Cotroneo will probably never be free of pain.

There was a significant amount of testimony about the probability of Cotroneo having additional surgery and how he may never achieve normal movement in the area where his bones were fused in his foot. Also his hearing and sight were affected by the accident and he can no longer chew without pain. Additionally, there was testimony regarding how the accident affected his relationship with his two young sons and how the appellee was finding it difficult to obtain work. Photographs shown to the jury reveal the severity of Cotroneo’s injuries.

In light of the evidence of Cotroneo’s injuries we do not regard the award of compensatory damages as shocking. Admittedly the amount awarded is high but there was no compelling proof of prejudice or influence of such kind as to warrant disturbing the jury award. See Price v. Watkins, 283 Ark. 502, 678 S.W.2d 762 (1984).

We also affirm the punitive damage award. The evidence that Franks was operating the vehicle while under the influence of alcohol when his blood alcohol level was .22 readily supports the verdict for punitive damages. Because Franks was acting in the scope of his employment at the time of the accident, his acts of operating a vehicle when impaired by alcohol were imputed to his employer. In Honeycutt v. Walden, 294 Ark. 440, 743 S.W.2d 809 (1988), we addressed this situation:

We have held many times that malice may be inferred from the operation of a motor vehicle, a potentially lethal machine, by one whose judgment, responses and coordination are impaired by alcohol.

Id. at 442, 743 S.W.2d at 810.

Affirmed.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. This case involves a tragic accident, and the allegations are of the most serious kind. Nevertheless, the circumstances of this case are precisely the kind that the expanded Ark. R. Civ. P. 6(b) was intended to embrace — a good faith mistake resulting in a failure to answer a complaint on time.

The former Rule 6(b) provided for an extension of time only when failure to act was due to “excusable neglect, unavoidable casualty or other just cause.” The current Rule 6(b), which became effective on February 1, 1991, broadened the scope of “just causes” considerably:

(b) Enlargement: When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of mistake, inadvertence, surprise, excusable neglect, or other just cause ....

In the Matter of the Changes to the Arkansas Rules of Civil Procedure, the Arkansas Inferior Court Rules, and the Administrative Orders of the Arkansas Supreme Court, 304 Ark. 733 (1990). (Emphasis added.) The majority decision states the obvious, which is that the amendment was intended “to liberalize Arkansas practice.”

Here, B & F Engineering contends by its agent’s affidavit that it mistook the second complaint arising out of this accident as duplicative of the first compliant which it had already forwarded to the company’s counsel. Because of this erroneous assumption, the agent failed to act on Cotroneo’s complaint. Service of process was had on B & F on January 25, 1991. No responsive pleading was filed by B & F by February 14, 1991, and on February 19, 1991, Cotroneo moved for a default judgment. B & F countered that the court should extend the period to answer under Rule 6(b) because its failure to answer was the result of mistake, inadvertence, surprise, exclusable neglect, or other just cause. Also, on February 28, 1991, B & F answered Cotroneo’s complaint.

The trial judge heard the motion for default judgment on March 19, 1991,-and ruled in Cotroneo’s favor. In doing so he stated:

There was a late filing of the answer, there was sufficient time to file the answer. Just simply making, assuming a fact that did not exist, assuming a fact that was contradicted by the face of the pleadings, to me, is not any kind of an excuse for a default judgment. And I don’t necessarily think a default judgment is a harsh remedy. (Emphasis added.)

He then added later on in his ruling: “The answer was simply filed late and there is absolutely no excuse [for] it.” (Emphasis added.)

The trial judge hinged his decision on the fact that no legitimate excuse existed for B & F’s inaction. His ruling under former Rule 6(b) would be correct in that B & F’s neglect does not appear to be excusable. However, this failure to act does qualify as a mistake or inadvertence, and B. & F’s explanation, under oath, as to how it happened seems entirely plausible. Certainly, two complaints had been filed as a result of the same accident.

The clear purpose behind our change in Rule 6(b) and Rule 55(c) is best expressed in the Reporter’s Note to Rule 55:

Rule 55 has been substantially amended to liberalize Arkansas practice regarding default judgments. The revised rule, which reflects a clear preference for deciding cases on the merits rather than on technicalities, is intended to avoid the harsh results that often flowed from the previous version. Because the rule represents a significant break from prior practice, many cases decided under the old rule and the statute from which it was derived will no longer be of precedential value.
Under revised Rule 55(a), the entry of a default judgment is discretionary rather than mandatory. In deciding whether to enter a default judgment, the court should take into account the factors utilized by the federal courts, including: whether the default is largely technical and the defendant is now ready to defend; whether the plaintiff has been prejudiced by the defendant’s delay in responding; and whether the court would later set aside the default judgment under Rule 55(c).

As the majority says, defaults are not favored, and we have announced a clear preference in favor of trial on the merits in the Rule 6(b) amendment. The default in this case is due to a technicality, and Cotroneo is not prejudiced by a fourteen-day delay in B & F’s answer. Moreover, B & F is ready to defend. A meritorious defense need not be espoused to the trial judge in Rule 6(b) situtations, and B & Fmade it clear at oral argument that it had proceeded under Rule 6(b) for an enlargement of time in which to answer and not Rule 55(c). All of these factors militate in B & F’s favor; none were considered by the trial judge on the record.

The case cited by the majority supports this position. See Stuski v. United States Lines, 31 F.R.D. 188 (E.D. Pa. 1962). There, two complaints were involved and, as in the present case, the second complaint was not forwarded to counsel due to a mistaken belief that the complaints were duplicative. However, one complaint was filed in state court and one was filed in federal court. Facially, the two complaints were contradictory as in the present case. Nevertheless, the district court set the default aside.

The trial judge has wide discretion in these matters, a point which I readily concede. But, here, it appears clear that the trial judge used the old standard of excusable neglect in reaching his decision. Had he found that B & F had concocted its defense for failure to answer after the fact, this would take the mistake out of the good-faith category. But the judge did not make such a finding.

This is an important case, as it is the first to be decided since the 1990 amendment broadening Rule 6(b) and Rule 55(c). If that amendment is to have any meaning, this case should be reversed and remanded for a trial on the merits.

I respectfully dissent.

       Ark. R. Civ. P. 6(b) provides in part, “[w]hen by these rules or by notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may at anytime in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of mistake, inadvertence, suprise, exclusable neglect, or other just cause. . . .”

       The first suit is Martin v. Eisele, Special Administrator for G.W. Franks, Deceased and B & F Engineering, Inc. The second lawsuit is Michael Cotroneo v. B & F Engineering, Inc.

       Rule 6(b) and Rule 55(c) were both amended by the same Per Curiam Order to include “mistake,” “inadvertence,” and “surprise.”

       The new standard, including mistake and inadvertence had been in effect for about six weeks when the judge made his decision on March 19, 1991.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Everett L. YOUNG and Mary E. Young v. Val JAMISON, Howard County Assessor and Tax Collector
    91-335
    828 S.W.2d 831
    Supreme Court of Arkansas
    Opinion delivered April 20, 1992

      Chisenhall, Nestrud & Julian, P.A., by: Charles R. Nestrud and Janie W. McFarliw, and Nichols, Wolff, & Ledbetter, P.A., by: Mark W. Nichols, for appellants.

      James C. Graves, for appellee.
   Steele Hays, Justice.

This challenge to a tax exemption was dismissed for lack of jurisdiction by the circuit court in which the action was brought. The trial court found that the county court had exclusive jurisdiction of the subject matter. We agree with the trial court.

Appellants, Everett and Mary Young, are residents and taxpayers of Mineral Springs, Howard County, Arkansas. On June 28,1990, they filed an action in the Circuit Court of Howard County asking for a writ of mandamus against appellee, Val Jamison, as Howard County Assessor and Tax Collector. Appellants sought the writ to direct Jamison to place the Howard Memorial Hospital on his assessment rolls as property which is nonexempt rather than as exempt, which is its present classification. Appellants alleged that the Hospital had entered into a contract with a for-profit organization to use a portion of the hospital to operate a dialysis unit. Appellants maintained the presence of the dialysis unit defeated the hospital’s tax-exempt status, as the hospital was no longer used exclusively for public purposes or public charities as required by art. 16, § 5, of the Arkansas Constitution.

Jamison answered and moved to dismiss for lack of subject mater jurisdiction, contending appellants’ action constituted a matter “related to county taxes” and therefore exclusive subject matter jurisdiction was vested in the county court, pursuant to art. 7, § 28, of the Arkansas Constitution. Appellants answered, denying appellee’s argument and moving for summary judgment on the matter.

A consolidated hearing was held on May 1, 1991, and on May 31,1991, the trial court granted appellee’s motion to dismiss for lack of subject matter jurisdiction. Appellants appeal from that order.

Appellants acknowledge that art. 7, § 28, of the Arkansas Constitution provides exclusive and original jurisdiction to county court in matters relating to county tax matters. The section provides:

The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concern of the respective counties. [Our emphasis.]

Appellants argue, however, that an exception to that jurisdiction has been provided by the legislature in Ark. Code Ann. § 26-61-301 (1987) which provides:

(a) ***
(b) (1) ***
(b)(2) Upon the refusal or failure of any county officer to perform any duty imposed upon him under the provisions of this subchapter [dealing with the administration of the assessment of taxes], any citizen of the county may, and the prosecuting attorney of the district including such county shall, institute in the proper court mandamus proceedings to compel the county officer to perform his duties.

But the appellants’ proposed interpretation is clearly unconstitutional, as the legislature cannot alter by statute the jurisdiction granted or withheld by the Constitution. Harding v. State, 94 Ark. 65, 126 S.W. 90 (1910). Consequently the argument does not avail the appellants.

Furthermore, the cases appellants cite in support of their interpretation of this statute would not sustain original jurisdiction of county tax matters in circuit court. See Jeffery v. Trevathan, 215 Ark. 311, 220 S.W.2d 412 (1949) (and cases cited therein). Rather, those cases reflect that the issues before the circuit court were on appeal from county courts. This is the correct procedure, of course, as we recently pointed out in Scott County v. Frost, 305 Ark. 358, 807 S.W.2d 469 (1991):

A circuit court could have’ jurisdiction of a [county] taxation matter such as this, but it would be a result of Ark. Const, art. 7, § 33, which provides for appeals to be taken from county court to circuit court.

In the case before use, the appellants brought this case originally in circuit court without first having the case heard in county court. Under art. 7, § 28, of the Constitution, the circuit court had no jurisdiction and the trial court was correct in dismissing the case.

Affirmed.


author: David Newbern, Justice.

text:
    Sherry EARNEY, Pamela Cook and Glenda Endamano v. Hon. Ellen BRANTLEY
    91-345
    828 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered April 20, 1992

      Malcolm R. Smith, P.A., for appellant.

      Wright, Lindsey & Jennings, by: Alston Jennings, for appellee.
   David Newbern, Justice.

Petitioners, Earney, Cook, and Endamano, seek a writ of prohibition to the Probate Court to prevent consideration of a renewed petition for probate of a will. That pleading seeks an opportunity for the proponent of the will to cure “evidentiary deficiencies” outlined by this Court in our opinion reversing the decision to admit the will to probate. In the Matter of the Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (1991). Following issuance of the mandate the proponent of the will returned to Judge Brantley and renewed her petition arguing that it was within the discretion of the Court to conduct further proceedings and it would be unjust to deny probate without permitting her to cure the procedural defects. The Court found that it was authorized to conduct another hearing and to consider new proof. Petitioners then filed this petition asking us to prohibit the hearing. We find that a writ of prohibition is not a proper remedy, and, accordingly, the petition is denied.

Petitioners phrase the issue as whether the Probate Court has authority to conduct an additional hearing or is bound by the mandate of this Court. The argument is focused on their contention that our decision means that the will is not entitled to probate and there remains nothing for the Court to consider in connection with this will. Be that as it may, see Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989), neither that question nor any of the other legal questions implicated here are sufficient to raise doubt concerning the exercise of jurisdiction by the Probate Court.

Prohibition is an extraordinary writ not issued to prohibit a trial court from erroneously exercising its jurisdiction. Pryor v. Hot Spring County Chancery Court, 303 Ark. 630, 799 S.W.2d 524 (1990); Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988). Law of the case, like res judicata, is an affirmative defense to be raised in the trial court and presents no question of jurisdiction. Pryor v. Hot Spring County Chancery Court, supra. Absent a showing that the Probate Court is acting without or in excess of its jurisdiction, the writ may not be granted.

Petition for writ of prohibition denied.


author: Tom Glaze, Justice.

text:
    Robert D. WARD and Terri Ward, d/b/a Fire Repair Service v. DAPPER DAN CLEANERS AND LAUNDRY, INC.
    91-351
    828 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered April 20, 1992

      William R. Butler, for appellants.

      Ray Owen, Jr., and John P. Lewis, for appellee.
   Tom Glaze, Justice.

This appeal ensues from an action brought by appellee against appellants for cleaning services in the amount of $4,093.12 provided appellants. Upon filing its action, appellee caused a prejudgment attachment order to be issued by the Garland County Circuit Court pursuant to Ark. Code Ann. §• 16-110-104 to -111 (1987).

In support of its request for prejudgment attachment, appellee and its counsel submitted affidavits alleging they believed appellants were about to remove their property out of state with the intent to defraud their creditors. Two days after being served with appellee’s pleadings, appellants moved to dismiss appellee’s complaint, requested the return of their truck (seized under appellee’s prejudgment attachment order), and prayed for damages for the loss of use of its vehicle and for sanctions under ARCP Rule 11. Five weeks later, appellants filed an additional argument in support of their motion to dismiss and request for sanctions, stating that, on July 18, 1988, the Arkansas Supreme Court had ruled the prejudgment attachment laws unconstitutional. McCroy v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988). They argued that, when appellee obtained its prejudgment attachment order on June 7,1991, appellee knew or should have known the laws under which it was proceeding had been ruled unconstitutional three years earlier.

In ruling on appellant’s motion to dismiss, the trial court agreed that appellee’s prejudgment attachment of appellants’ truck was not supported by existing law or by a good faith argument for the extension, modification or reversal of the existing law. Nonetheless, the court still denied appellants’ request for Rule 11 sanctions because appellee did not file its prejudgment attachment action for an improper purpose. The court specifically added that neither appellee’s counsel, nor the court, was aware the prejudgment attachment laws were unconstitutional. The trial court’s reasoning in denying Rule 11 sanctions was in error.

Rule 11 provides in pertinent part as follows:

Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. (Emphasis added.)

Our Rule 11 mirrors Fed. R. Civ. P. 11, and on occasion, we have looked to how the federal courts have interpreted their Rule when considering whether to award sanctions. Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989); Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988). By the terms employed in the Federal and Arkansas Rules 11, an attorney signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that (1) the attorney made a reasonable inquiry into the facts supporting the document or pleading, (2) he or she made a reasonable inquiry into the law supporting that document to ensure that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (3) the attorney did not interpose the document for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Miles, 297 Ark. 274, 760 S.W.2d 868; Smith Intern, Inc. v. Texas Commerce Bank, 844 F.2d 1193 (5th Cir. 1988); Wright & Miller, Federal Practice and Procedure: Civil 2d § 1335, p. 58(1990); Note, Rule 11 in the Federal Courts — Unanswered Questions in Arkansas, 43 Ark. L. Rev. 847, 852 (1990). When a violation of Rule 11 occurs, the Rule makes sanctions mandatory. Miles, 297 Ark. 274, 760 S.W.2d 868; Crookham v. Crookham, 914 F.2d 1027 (8th Cir. 1990); O’Connel v. Champion Intern. Corp., 812 F.2d 393 (8th Cir. 1987). Whether a violation occurred is a matter for the court to determine, and this determination involves matters of judgment and degree, and in reviewing a trial court’s Rule 11 determination, we do so under an abuse of discretion standard. Miles v. Southern, 297 Ark. 280-A, 763 S.W.2d 656 (1988) (supplemental opinion denying rehearing); Crookham, 914 F.2d 1027; O’Connel, 812 F.2d 393.

In view of the foregoing authority, it is clear the trial court in the present case failed to apply the objective standard as to whether appellee and its counsel made a reasonable inquiry into the law required by Rule 11 before they signed and filed their request for a prejudgment attachment against the appellants’ personal property. The trial court’s finding that appellee’s counsel did not file appellee’s request for an improper purpose falls short of absolving him from sanctions. Nor is counsel safeguarded from a Rule 11 award because the trial court was unaware that the laws utilized by appellee’s counsel were unconstitutional. The trial court has no duty under Rule 11 to inquire into or research the law for parties filing complaints, petitions or motions. Appellee points out that appellants, themselves, were unaware of the unconstitutionality of the attachment laws until five weeks after they first moved to dismiss, and appellants’ delay in discovering this issue should somehow serve to alleviate appellee’s responsibility under Rule 11. Appellee’s argument is wrong. Appellee and its counsel had an independent duty to meet the three requirements set out above, and their failure to do so triggers the sanctions provisions of the rule. See Wright & Miller, Federal Practice and Procedure: Civil 2d § 1335, p. 58 (1990); for federal cases where sanctions for failing to conduct a reasonable inquiry into applicable law, see Crookham v. Crookham, 914 F.2d 1027 (8th Cir. 1990); International Shipping v. Hydra Offshore, Inc., 875 F.2d 388 (2nd Cir. 1989); Smith Intern, Inc. v. Texas Commerce Bank, 844 F.2d 1193 (5th Cir. 1988); Gutierrez v. City of Hialeah, 729 F. Supp. 1329 (S.D. Fla. 1990); Chris & Todd, Inc. v. Ark. Dept. of Fin. & Admin., 125 F.R.D. 491 (E.D.Ark. 1989).

Here, appellee’s counsel need only to have checked the pocket part of volume 16 of the Arkansas Code to discover under the case notes designation in the cumulative supplement that the prejudgment attachment provisions, § 16-110-104 to -111, had been ruled unconstitutional. If counsel had made such a reasonable inquiry into the applicable law prior to signing appellee’s petition for prejudgment attachment, he obviously would never have filed it.

Based on the foregoing, we conclude appellee’s counsel signed the prejudgment attachment petition in violation of Rule 11, and therefore hold the trial court abused its discretion in ruling otherwise and in denying appellants’ motion for sanctions. See Albright v. Upjohn Co., 788 F.2d 1217 (6th Cir. 1986); Eastway Const. Corp. v. City of New York, 762 F.2d 243 (2nd Cir. 1985). Accordingly, we reverse the trial court and remand this case for the imposition of sanctions.

       Appellants also filed a counterclaim to which appellee responded, denying specifically and generally the relief requested by appellants.


author: Donald L. Corbin, Justice.

text:
    Steven Laron McARTHUR v. STATE of Arkansas
    CR 91-206
    830 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered April 20, 1992

      Robert Adcock, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Steven Laron McArthur was convicted of capital felony murder and sentenced to life imprisonment without possibility of parole. On appeal, he raises four points for reversal, none of which have merit. As one of appellant’s arguments challenges the sufficiency of the evidence, we address that challenge first. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

On January 21, 1990, a hunter discovered the body of sixteen-year-old Rodney Spence laying facedown in a ditch in north Lonoke County. Spence had been shot twice in the head at close range. Mike Spence, the victim’s father, testified that on the afternoon of January 20,1990, Rodney had left his parents’ home in Austin to pick up James McMurty, Spence’s fifteen-year-old cousin, and go to town, with the understanding that Rodney would be home by 10:00 p.m. that night. Rodney was driving a 1986 red Ford Ranger. Harold McMurty, the victim’s uncle, testified that Rodney arrived at his house at approximately 6:45 p.m. whereupon McMurty informed Rodney that James had gone with his mother to Knight’s grocery in Cabot. Rodney told McMurty that he would try to catch up with James in Cabot. When Rodney Spence did not return home by 10:30 that evening, his parents became worried and reported Rodney missing at approximately 12:30 a.m. Rodney Spence’s body was discovered the next day.

On January 23, 1990, a patrolman with the Plano Texas Police Department pulled over a red Ford Ranger with Arkansas plates, after hearing a national broadcast to be on the lookout for the vehicle. Donald Hawley, the driver of the truck, informed the Texas authorities that he and appellant Laron McArthur had been in Cabot, Arkansas, the past weekend and stayed at McArthur’s girlfriend’s apartment. Hawley stated that McArthur had left the apartment for a while on Saturday, and when McArthur returned he was driving the red truck which Hawley and McArthur drove to Dallas, Texas. According to Hawley, a pistol was located in McArthur’s sister’s apartment in Dallas.

The Plano police obtained and executed a search warrant for Robin McArthur’s apartment, where they found a gun in a nightstand drawer. At trial, the parties stipulated that the gun found in the nightstand drawer was the same weapon that was used to shoot Rodney Spence. Robin McArthur informed the police that her brother was at the Deluxe Inn in Dallas, and the Dallas Police Department took custody of McArthur that night.

Donald Hawley eventually pled guilty to capital murder, and testified at appellant’s trial. Hawley testified that McArthur had approached Rodney Spence in the parking lot of Knight’s grocery store in Cabot. According to Hawley, he and McArthur arranged for Spence to give them a ride to a liquor store and that Spence drove them to two liquor stores and a convenience store. When Spence went inside the convenience store, McArthur informed Hawley that he was going to get Spence to take them to a friend’s house and McArthur instructed Hawley to act sick when McArthur prompted him.

Hawley testified that a plan developed for stealing Spence’s truck while Spence was driving from the convenience store. McArthur directed Rodney to a remote location whereupon McArthur stated that Hawley “looked sick.” McArthur and Hawley got out of the truck on the passenger side and crouched by the truck. Spence also got out of the truck and McArthur asked Spence for assistance in getting Hawley back in the truck. Hawley then stepped around the rear of the truck, aimed a gun at Spence, and instructed Spence to lie on the ground and empty his pockets. Hawley testified that McArthur said “Well, shoot him,” and Hawley shot Spence in the head.

The two men had proceeded to drag Spence’s body when McArthur dropped the upper half of Spence’s body and stated that Spence was still alive. According to Hawley, McArthur stated that he didn’t want to see Spence suffer and fired a second shot into Spence’s head. Hawley and McArthur left Spence’s body in the ditch where it was eventually discovered. After killing Spence, Hawley and McArthur took Spence’s truck and left for Dallas where they stayed in McArthur’s sister’s apartment.

Appellant argues that the trial court should have directed a verdict in his favor because none of the state’s witnesses ever placed the appellant at the scene of the crime with a weapon in his hand. A challenge to the denial of a directed verdict is a challenge to the sufficiency of the evidence. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1991). We do not address appellant’s argument because the record reflects that appellant waived his right to challenge the sufficiency of the evidence by failing to make a motion for directed verdict at the close of the case. A.R.Cr.P. Rule 36.21(b) requires a defendant to move for a directed verdict at the close of the state’s evidence and at the close of the case if he wishes to preserve this challenge. We adhere to our strict interpretation of the requirements of Rule 36.21(b), Easter v. State, 306 Ark. 452, 815 S.W.2d 924 (1991), and do not consider appellant’s challenge to the sufficiency of the evidence.

Appellant’s second .argument for reversal is that the trial court erred in not allowing defense counsel to impeach Donald Hawley with prior statements made by Hawley. Specifically, appellant challenges the exclusion of Hawley’s prior statement to the sheriff of Lonoke County, and the exclusion of a deposition given by a doctor who evaluated Hawley.

The transcript reveals that the trial court never actually ruled on whether defense counsel could impeach Hawley with Hawley’s statement to the sheriff of Lonoke County. The issue arose when defense counsel questioned Hawley about Hawley’s prior statement to the sheriff in which Hawley spoke of horseback riding and shooting a pistol. The state objected on grounds of relevancy and the fact that Hawley had not given testimony inconsistent with that portion of his statement to the sheriff. Defense counsel rephrased his question and proceeded without renewing his objection or requesting further clarification. As we have held that the failure to obtain a ruling precludes review of the issue on appeal, Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992), Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991), Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989), we do not address appellant’s argument concerning Hawley’s statement to the sheriff.

Neither do we find error in the trial court’s exclusion of Hawley’s statements to Dr. Marino, a psychiatrist who evaluated Hawley. Appellant’s argument on this point is somewhat convoluted, but the thrust of the argument is set out in the following passage:

The Court had previously ruled that the deposition of Dr. Marino, who had worked at the Arkansas State Hospital and who had evaluated Mr. Hawley could not be used and not be introduced into evidence, but it is maintained that statement [sic] made by Mr. Hawley to Dr. Marino and to anyone else would be legally usable to test the veracity of Mr. Hawley.

Appellant failed to abstract any trial proceedings relating to Dr. Marino’s statements or statements made by Hawley to Dr. Marino. However, our search of the record reveals that the trial court granted the state’s motion in limine to exclude evidence of a deposition of Dr. Marino. At the hearing on the state’s motion, the trial court excluded the evidence after appellant’s counsel conceded that he wanted to use Dr. Marino’s deposition for the purpose of showing that Dr. Marino did not believe that Hawley was credible. We find no abuse of discretion in the trial court’s ruling as we have held that the credibility of witnesses and the weight accorded to their testimony is solely within the province of the jury. Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (1980).

On appeal, appellant argues that Hawley’s statements to Dr. Marino should have been admitted to test the veracity of Hawley. A.R.E. Rule 613 permits the use of a witness’ prior statement for impeachment purposes if the prior statement is inconsistent with the witness’ trial testimony. This rule, however, does not apply in the instant case as the record does not indicate that appellant attempted to impeach Hawley with statements Hawley made to Dr. Marino. Later, after Hawley and several other witnesses testified, appellant requested a clarification on the ruling regarding Dr.Marino’s deposition, and the court restated its prior ruling that the deposition was inadmissible. Again, we find no error in the ruling of the trial court as appellant never attempted to impeach Hawley’s credibility with statements Hawley made to Dr. Marino. Appellant concludes this portion of his argument with citations to Rule 801(d)(1) and Rule 806 of the Uniform Rules of Evidence. Appellant, however, does not state the relevance of these rules for purposes of his argument, and we are unaware of any authority in these rules for reversing the rulings of the trial court.

Appellant’s third allegation of error is that the trial court erred in refusing to grant defendant’s motion for change of venue. Appellant argues that extensive pretrial publicity and the standing of the victim’s family in the community denied him a fair and impartial trial in Lonoke County.

The record reveals that the Spence murder investigation received extended coverage in several area newspapers. However, the prominence and extent of coverage diminished with the passage of time. While sixty-two residents of Lonoke County signed affidavits stating that they did not believe appellant could receive a fair trial in Lonoke County, these affidavits are conclusory and fail to state facts supporting the conclusion that appellant could not receive a fair trial in Lonoke County. At the hearing on appellant’s motion to change venue, appellant presented the testimony of his parents and two family friends who testified that they did not believe appellant could receive a fair trial. The trial court reserved the right to rule on the motion until the conclusion of sequestered voir dire, at which time he denied appellant’s motion.

During voir dire, several prospective jurors stated that they had read newspaper accounts of the murder, but most stated that they had either forgotten the information or set it aside. Each person eventually seated as a juror stated that he or she would be able to give McArthur a fair trial and follow the instructions of the court, and appellant did not exhaust his peremptory challenges.

A change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in the county. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). The defendant carries the burden of proof, and we will uphold the trial court’s decision unless an abuse of discretion is shown. Id. In order for the defendant to prevail on a change of venue motion, the witnesses must be able to show that they have a general knowledge as to the state of mind of the inhabitants of the whole county or that they are cognizant of prejudice existing throughout the whole county. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990); Gardner, supra. The trial court has the opportunity to observe the witnesses, and we have repeatedly emphasized the opportunity in deciding whether the denial of a motion to change venue constituted an abuse of discretion.

It is not necessary that jurors be totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial. Id. We have also held that there can be no error in the denial of a change of venue in cases such as this one where an examination of the jury shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Id.

Appellant, however, argues that the trial court abused its discretion by stating that Lonoke County was not “a close-knit community” and by relying on case law which he did not disclose to appellant. The record reveals that the court stated, “the Court can almost guarantee you that this is not a ‘close-knit community,’ ” after the court had read the affidavits and heard the testimony in support of the defendant’s motion. As the trial court was in the best position to judge the credibility of the defendant’s evidence, we cannot say that the court’s finding was an abuse of discretion. The trial court also stated that “ [t] here’s other case law which the Court has based its decision upon, but we won’t go into that at this particular time.” Appellant did not object or request the trial court to disclose the case law he relied upon, and we fail to see how the trial court’s statement prejudiced appellant.

Appellant also suggests that we overrule our prior cases holding that witnesses on a change of venue motion must demonstrate county-wide knowledge of prejudice or the county’s state of mind. We decline the invitation and find no abuse of discretion in the trial court’s denial of appellant’s motion to change venue.

Appellant’s final argument is that the trial court erred in denying appellant’s motion to dismiss because the capital murder statute is unconstitutional. Appellant was convicted of capital felony murder under Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1989). This subsection provides:

(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits. . .robbery,. . . and in the course of and in furtherance of the felony, ... or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life[.]

Appellant argues that the capital felony murder statute impermissibly overlaps with the first degree murder statute because the two felony murder statutes are not sufficiently distinguishable.

This court has repeatedly rejected appellant’s argument. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Hill v. State, 303 Ark. 462, 798, S.W.2d 65 (1990); Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989). We have held that the statutes are not constitutionally infirm because there is no impermissible uncertainty in the definitions of the capital murder offenses.

Appellant also argues that the capital felony murder statute is constitutionally invalid because no narrowing mechanism exists to prevent an arbitrary and discriminatory application of the death penalty or life without parole. We reject this argument because appellant did not receive the death penalty and he has no standing to raise the argument. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Smith, supra; Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979). Appellant attempts to circumvent the standing issue with his argument that appellant’s sentence constituted “an arbitrary and discriminatory application of the . . . life without parole” sentence. We do not consider appellant’s argument because he fails to offer a compelling reason or authority for extending the prohibition against an arbitrary and discriminatory imposition of the death penalty to a sentence of life without parole.

Pursuant to Ark. Sup. Ct. R. 11(f), the entire record has been reviewed and this review has uncovered no prejudicial error warranting reversal.

Accordingly, we affirm.


text:
    NATIONAL SECURITY FIRE & CASUALTY COMPANY v. Henry POSKEY and Hon. Harold Erwin, Circuit Judge of Jackson County, Arkansas
    91-344
    828 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered April 20, 1992

      Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Dan F. Bujford, and Brian Allen Brown, for petitioner.

      David Hodges, for respondent.
   Donald L. Corbin, Justice.

Petitioner, National Security Fire & Casualty Company, seeks a writ prohibiting the Jackson County Circuit Court from hearing a case wherein respondent, Henry Poskey, seeks a judgment declaring petitioner’s insurance coverage of one Theron E. Spurlock. Respondent was injured in an automobile accident involving Spurlock. During the investigation of the accident, petitioner determined it may have a possible defense to Spurlock’s coverage. Following this determination, respondent filed his complaint for a judgment declaring petitioner’s coverage of Spurlock and requiring petitioner to defend any cause of action filed against Spurlock. Petitioner filed a motion to dismiss on grounds that respondent did not have standing to maintain the suit, that the complaint did not state a claim for which relief could be granted, and that the court lacked subject matter jurisdiction. After a hearing on the motion, the trial court entered an order summarily denying the motion to dismiss.

Ordinarily, a petition for a writ of prohibition is not the proper remedy for the failure of a trial court to grant a motion to dismiss. Farm Bureau Mut. Ins. Co. of Ark. v. Southall, 281 Ark. 141, 661 S.W.2d 383 (1983). A writ of prohibition is an extraordinary writ and is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983). There is no doubt that a circuit court has proper subject matter jurisdiction to hear a declaratory judgment action concerning insurance coverage. The propriety of hearing such a case, especially when it appears that no cause of action exists or that not all the parties to the insurance contract have been made parties to the suit, is a distinctly different issue and one that is not addressed by a writ of prohibition, for the writ is issued only to prevent a court from exceeding its jurisdiction, rather than to prevent it from erroneously exercising its jurisdiction. Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988).

Petitioner concedes that the circuit court has proper subject matter jurisdiction of a declaratory judgment action, but argues that we should issue the writ because injured parties are not permitted to sue their non-immune tortfeasors’ insurance carriers directly. Petitioner relies on our direct action statute, Ark. Code Ann. § 23-79-210 (1987). We agree that our direct action statute does not allow injured parties to sue their non-immune tortfeasors’ insurance carriers directly until the injured party has obtained a judgment against the tortfeasor and the judgment remains uncollected after thirty days. See Ark. Code Ann. § 23-89-101 (b) (1987); see also Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1988), and Savage v. Spicer, 235 Ark. 946, 362 S.W.2d 668 (1962). However, this is not a direct action by respondent against petitioner to determine Spurlock’s liability. Thus, the foregoing authorities do not prohibit the circuit court’s hearing respondent’s complaint for declaratory judgment.

As the circuit court has subject matter jurisdiction of the declaratory judgment action, we deny the petition for a writ of prohibition. Petitioner has an appellate remedy for any error that occurs in the declaratory judgment action.

In denying petitioner’s request, we do not ignore the exception to the rule enunciated in Southall, supra. In Fore v. Circuit Court of Izard County, 292 Ark. 13, 17, 727 S.W.2d 840, 842 (1987), we stated that although a writ of prohibition is ordinarily only granted in cases where the lower court is without jurisdiction, a writ will be issued “when subject matter is properly in the lower court if the facts are undisputed and the writ is clearly warranted.” The latter elements of the exception, as stated in Fore, supra, and Miller, supra, are not present in the instant case. Petitioner admits to a possible coverage defense that it may or may not assert; Spurlock, the alleged insured, is not a party to the action; and petitioner has a right to appeal any declaration that the circuit court makes. The writ of prohibition is such an extraordinary writ that it will not be issued in a case where neither the rule nor the exception permits its issuance.

The petition for writ of prohibition is denied.

Glaze, J., not participating.


author: Per Curiam.

text:
    Doug GUIRE v. STATE of Arkansas
    CR 92-301
    832 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered April 13, 1992

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Didi H. Sailings, Asst. Att’y Gen., for appellee.
   Per Curiam.

On August 5,1991, the appellant Doug Guire pleaded guilty to possession of drug paraphernalia, possession of a controlled substance with intent to manufacture, the offense of felon in possession of a firearm, and possession of a controlled substance with intent to deliver. He was sentenced as a habitual offender to concurrent terms of imprisonment and is serving fifteen years in the Arkansas Department of Correction. A fine of $7,500 was also imposed.

On the one-hundred-twentieth-day after the judgment was entered, appellant filed in the trial court a petition pursuant to Ark. Code Ann. § 16-90-111 (Supp. 1989) in which he alleged that the twenty years imprisonment with five years suspended which was imposed for possession of a controlled substance with intent to deliver was illegal or imposed in an illegal manner. The trial court denied the petition, and the record has been lodged here on appeal. Appellant seeks appointment of counsel to represent him on appeal and an extension of time to file a brief in the case. We deny the motion and dismiss the appeal because there is clearly no merit to the appeal. This court has consistently held that motions will not be granted which have the effect of continuing a clearly meritless appeal. Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Arkansas Code Annotated § 16-90-111 (Supp. 1989) provides a remedy within one-hundred-twenty days of the date of judgment where the petitioner can establish that the sentence imposed on him was illegal. Petitioner, who does not contend that he did not plead guilty to a Class Y felony, argued in the petition that he should have been charged with a Class B felony because he was in possession of less than 28 grams of the controlled substance, methamphetamine, which is a schedule II drug.

Appellant’s challenge to the sentence imposed against him was in the nature of an attack on the sufficiency of the evidence. An attack on the sufficiency of the evidence is not cognizable under Ark. Code Ann. §16-90-111. The sufficiency of the evidence was a matter to be argued in the trial court, and by pleading guilty, appellant waived the claim that the evidence was insufficient to convict him.

Motion denied and appeal dismissed.


author: Jack Holt, Jr., Chief Justice.

text:
    Larry Kenneth BUTLER v. STATE of Arkansas
    CR 91-250
    829 S.W.2d 412
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992
    [Rehearing denied June 1, 1992.]

      Don Lloyd Cook, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The primary issue in this case is whether the trial court erred in denying the motion of the appellant, Larry Butler, to suppress all evidence obtained from the warrantless entry of Springdale police officers into Butler’s home for the purpose of arresting him on a disorderly conduct charge. We find that it did and reverse and remand.

The underlying facts of this novel situation show that on October 22, 1989, Butler called the Springdale Police Department to complain of a disturbance in his neighborhood. Officer Rusty Sudduth responded to the call. Apparently, communication between Butler and Officer Sudduth, on the front porch of Butler’s home, deteriorated due to the barking and growling of Butler’s dog while they were trying to talk. As a result, Butler asked his wife to call for another police officer and reentered his home; Officer Sudduth followed and told him that he was under arrest for disorderly conduct. It is disputed as to when Officer Sudduth told Butler that he was under arrest; Butler claims that Officer Sudduth told him after the officer had entered his home, and Officer Sudduth claims that he told Butler while crossing the doorway threshhold. It is not disputed that Officer Sudduth did not place Butler under arrest while they were both on Butler’s front porch.

After Butler had reentered his home, he spoke on the telephone with the Springdale Police dispatcher; shortly thereafter, Sergeant Steve Clark arrived, entered the home, and advised Butler that he was under arrest for disorderly conduct. While Butler was still talking on the telephone with the dispatcher, Officer Sudduth unplugged the telephone. Sgt. Clark placed Butler’s right wrist in a wrist lock, and Officer Sudduth grasped Butler’s left elbow and forearm, which was in a sling because Butler had broken his left arm. When Officer Sudduth touched Butler’s left arm, Butler screamed and fell on the floor. An ambulance was called, and Butler was taken to the hospital; he was arrested upon release.

Butler was charged in the Springdale Municipal Court with disorderly conduct and refusal to submit to arrest. On June 1, 1990, Butler was found not guilty of the disorderly conduct charge and guilty on the refusal to submit to arrest charge. He was sentenced to ten days in the Springdale City Jail, fined $100.00 dollars, and assessed $52.25 in court costs.

Butler appealed to the Washington County Circuit Court, and on May 2,1991, the trial court found him guilty of refusal to submit to arrest and sentenced him to 15 days in jail, along with a fine of $200.00 and court costs in the amount of $62.75.

Now on appeal, Butler asserts three points of error: 1) that the trial court erred in denying his motion to suppress all evidence from the time of the illegal entry into his home, 2) that the trial court erred in not holding that Ark. Code Ann. § 5-54-103(b)(3) (Supp. 1991) was unconstitutional in that it is violative of the Fourth Amendment of the Constitution of the United States, and 3) that the trial court erred in allowing evidence of testimony from a municipal court trial into a de novo circuit court appeal and allowed the prosecutor to act as a witness. We find Butler’s first argument persuasive and reverse and remand.

As an initial matter, the State asserts that this argument is not preserved for appeal on the basis that A.R.Cr.P. Rule 16.2(b) provides that a defendant is to make a motion to suppress evidence at least ten days in advance of the trial date, except that the court for good cause shown may entertain a motion to suppress at a later time. In this case, on the date of Butler’s trial, Butler orally asked the trial court to suppress evidence of his arrest on the basis that the arrest was unlawful. The trial court took the motion under advisement pending the hearing of testimony relating to the issue. The trial commenced, and, after the close of all of the evidence, the trial court determined that once Officer Sudduth had reasonable cause to effect the arrest, he could lawfully follow Butler into his residence to effectuate the arrest. The trial court then overruled Butler’s motion to suppress evidence and found that the arrest was legal under the circumstances.

We note that the State did not obj ect at trial to Butler’s motion being untimely, but instead presented all of the evidence it had in opposition to the motion. While the trial court might have raised the issue on its own, it did not do so, but heard the motion on its merits. Rule 16.2 does not mandate the denial of every motion which is untimely, and in the absence of a timely objection, we cannot conclude that the motion to suppress was not properly before the trial court or that the trial court’s ruling on it was not properly preserved for review. See Vega v. State, 26 Ark. App. 172, 762 S.W.2d 1 (1989).

Butler’s claim that the trial court erred in denying his motion to suppress all evidence from the time of the illegal entry into his home is a federal issue. United States v. United States District Court, 407 U.S. 297 (1972); Johnston v. United States, 333 U.S. 10 (1948).

We find the United States Supreme Court case of Welsh v. Wisconsin, 466 U.S. 740 (1984), to be instructive. In that case, the Supreme Court held that a warrantless, nighttime entry into a home to arrest an individual for driving while under the influence of an intoxicant was prohibited by the Fourth Amendment. The Court stated:

It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. It is not suprising, therefore, that the Court has recognized, as ‘a basic principle of Fourth Amendment law,’ that searches and seizures inside a home without a warrant are presumptively unreasonable.
Consistently with these long-recognized principles, the Court decided in Payton v. New York, 445 U.S. 573 (1980), that warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. . . . Prior decisions of this Court, however, have emphasized that exceptions to the warrant requirement are ‘few in number and carefully delineated,’ when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.
Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government’s interest is only to arrest for a minor offense, the presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistratge.
This is not a novel idea. Writing in concurrence in McDonald v. United States, 335 U.S. 451 (1948), Justice Jackson explained why a finding of exigent circumstances to justify a warrantless home entry should be severely restricted when only a minor offense has been committed:
Even if one were to conclude that urgent circumstances might justify a forced entry without a warrant, no such emergency was present in this case. This method of law enforcement displays a shocking lack of all sense of proportion. Whether there is reasonable necessity for a search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it. . . . It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscrimately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it. While I should be human enough to apply the letter of the law with some indulgence to officers acting to deal with threats or crimes of violence which endanger life or security, it is notable that few of the searches found by this Court to be unlawful dealt with that category of crime. . . . When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.
[W]e note that it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor.
We therefore conclude that the common-sense approach utilized by most lower courts is required by the Fourth Amendment prohibition on ‘unreasonable searches and seizures,’ and hold that an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Moreover, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the kind at issue in this case, has been committed.

In Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), we stated that in order to enter a residence or private dwelling without violation of the fourth amendment prohibition against unreasonable searches, both probable cause and exigent circumstances must be present. Exigent circumstances are those requiring immediate aid or action, and, while there is no definite list of what constitutes exigent circumstances, several established examples include the risk of removal or destruction of evidence, danger to the lives of police officers or others, and the hot pursuit of a suspect.

Arkansas Code Ann. § 5-71-207 (1987) addresses disorderly conduct and provides that it is a Class C misdemeanor, which allows for imprisonment not to exceed thirty days and a fine not to exceed $100.00. Ark. Code Ann. §§ 5-4-401(b)(3) and 201(b)(3) (1987). Accordingly, in the statutory scheme of criminal offenses, the crime of disorderly conduct is a minor offense.

The State contends that the warrantless entry into Butler’s home was predicated under the “hot pursuit” exception to the warrant requirement. However, even though Officer Sudduth might have been under the impression that he was in continuous pursuit of Butler for what he considered to be the crime of disorderly conduct, of which Butler was subsequently found to be not guilty, the crime is a minor offense; since the crime is a minor offense, under these circumstances there is no exigent circumstance that would allow Officer Sudduth’s warrantless entry into Butler’s home for what is concededly, at most, a petty disturbance. There is certainly no exigent circumstance requiring immediate aid or action; consequently, the application of the exigent circumstances exception to the requirement of a warrant for home entry in this context is, therefore, inapplicable, and the police officers’ actions were unreasonable behavior that the principles of the Fourth Amendment will not sanction.

As Butler’s first argument is determinative of the case, we see no need to address his remaining points of error.

Reversed and remanded.


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

text:
    Samuel DUNCAN v. STATE of Arkansas
    CR 90-177
    831 S.W.2d 115
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Jeff Rosenzweig, for .appellant.

      Winston Bryant, Att’y Gen., by: Oían W. Reeves, and Jeff Vining, Asst. Att’ys Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Samuel Duncan, was charged with capital felony murder in the shooting death of Pine Bluff police officer John Fallis on March 4,1985. At Duncan’s first trial, he was convicted and sentenced to death by lethal injection. We reversed and remanded on the basis that his confession was inadmissible for two reasons: 1) the lack of an effective waiver of his rights, and 2) the State’s failure to bring him before a magistrate for a prompt first appearance pursuant to A.R.Cr.P. Rule 8.1. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).

On July 25, 1990, as the result of Duncan’s second trial, he was again convicted of capital felony murder and sentenced to death by lethal injection.

Now on appeal, Duncan asserts thirteen points of error: 1) the trial court erred in holding that he could be impeached with his prior confessions, 2) the trial court erred in refusing to dismiss this case on due process grounds because of the State’s use of perjured testimony, 3) Duncan was denied his right to only nonracial grounds for exclusion of blacks from the jury, 4) the trial court erred in permitting testimony that a warrant had been issued for Duncan in the State of Washington, 5) the entire prosecutor’s office should have been disqualified, 6) the use of his convictions in the State of Washington, on appeal as of this date, taints the penalty phase verdict and will mandate resentencing upon favorable action in the State of Washington, 7) the trial court erred in refusing his submission of a mitigating circumstance, 8) the trial court erred in refusing to require weighing of aggravating and mitigating circumstances in Form 3, Question C, 9) the trial court refused to submit an instruction indicating that the statute is not mandatory, 10) principles of comparative review require reduction of this death sentence, 11) the prosecutor wrongly had final closing argument in the penalty phase, 12) the trial court erred in its refusal to read part of an instruction, and 13) Engle v. Isaac, 456 U.S. 107 (1982), issues.

We find that Duncan’s first point of error requires us to reverse and remand.

Duncan claims that the trial court erred in holding that he could be impeached with his prior confession thereby preventing him from testifying at trial. As an initial matter, the State contends that this issue was not preserved for appeal; we have examined the record and are satisfied that the issue of the voluntariness of Duncan’s confession was brought to the trial court’s attention as a basis for its ruling allowing the confession to be used for impeachment purposes.

The underlying facts of our decision in Duncan’s first appeal are compelling and we set them out as follows:

A chronology of the less disputed events surrounding Duncan’s confession begins at about noon on the day after the shooting. Duncan was arrested at his residence in Grady, Arkansas, and taken to the Pine Bluff police station. Shortly thereafter and prior to any interrogation, the prosecuting attorney, Wayne Matthews, filed a felony murder information against Duncan. In mid-afternoon the police began their interrogation of Duncan. Present during this interview were two Pine Bluff police officers, the prosecuting attorney, and a deputy prosecuting attorney. No careful inquiry into Duncan’s reading and comprehension proficiency was made. While Duncan testified he dropped out of school at the eleventh grade, a psychologist testified at the suppression hearing that he read at a third grade level and had an IQ of 70 which he classified as being mildly retarded.
Duncan’s rights were read to him and after he was told he had a right to have an attorney present before making any statement, he asked, “Do ya’ll appoint lawyers?” The officer did not answer the question directly but continued reading the Miranda rights form.
There is no evidence in the record of any rights waiver form being signed, nor was Duncan asked at any time whether in addition to understanding his rights he also agreed to waive them. Duncan did sign the rights form, misspelling his name in the process (D-U-N-A-N).
The officers proceeded with the interrogation of Duncan for approximately two and one-half hours, failing to get anything but exculpatory information from him. He was taken to his cell and kept there until late Friday night when he was returned to an interrogation room. He was not allowed to make any phone calls during this three and a half day period. Late Friday night he was again interrogated and at this time gave incriminating information, admitting he had shot the officer.
The next day, Saturday, Duncan was allowed to see his girlfriend, also in custody, for a brief period, but was allowed no other visitors or phone calls. On Sunday, the officers asked appellant to give his confession again, and this time it was videotaped. The court found both the Friday and Sunday confession admissible, but only the Sunday confession was introduced at trial.

Duncan v. State, supra.

In addressing the merits of this first point of error, we note that in Mincey v. Arizona, 437 U.S. 385 (1978), the United States Supreme Court held that statements obtained from the defendant in that case at the hospital, used to impeach his credibility, were inadmissible because they had not been made voluntarily. The Court stated:

Statements made by a defendant in circumstances violating the strictures of Miranda v. Arizona, supra, are admissible for impeachment if their ‘trustworthiness . . . satisfies legal standards.’ But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law ‘even though there is ample evidence aside from the confession to support the conviction.’ If, therefore, Mincey’s statements to Detective Hust were not ‘the product of a rational intellect and free will,’ his conviction cannot stand. In making this critical determination, . . . this Court is under a duty to make an independent evaluation of the record.

(Citations omitted.)

In the recent case of Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), we carefully examined the question of voluntariness of a confession while in custody, noting that this is a federal issue involving fifth, sixth, and fourteenth amendment rights. Our analysis in that case is poignant and equally applicable to this case.

In Miranda v. Arizona, 384 U.S. 436, 467 (1966), the Court recognized that custodial interrogation inherently produces ‘compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’ To neutralize this inherent compulsion and give true meaning to the Fifth Amendment privilege against self-incrimination, the Court in Miranda imposed a clear standard for police to follow in dealing with an accused. Before questioning an accused, the police must fully apprise the suspect of the State’s intention to use his statements to secure a conviction and must inform him of his rights to remain silent and to have counsel, if he desires. Id. at 468-70. A waiver of these rights is valid only if it is made ‘voluntarily, knowingly and intelligently.’ Id. at 444. An incriminating statement obtained on the basis of a waiver must be excluded unless the State establishes to the satisfaction of the trial court by a preponderance of the evidence that the waiver was voluntarily, knowingly, and intelligently given. Colorado v. Connelly, 479 U.S. 157, 168 (1986).
The inquiry into waiver has two distinct dimensions. Colorado v. Spring, 479 U.S. 564 (1987); Moran v. Burbine, 475 U.S. 412 (1986). ‘First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.’ Moran at 421. ‘Involuntary confession’ jurisprudence' is concerned with governmental intimidation, coercion, or deception. Colorado v. Connelly, 479 U.S. 157 (1986). Such governmental overreaching is not at issue in this case, and we do not discuss it further.
‘Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’ Moran at 421. In Colorado v. Spring, supra, the Court wrote:
The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. Moran v. Burbine, supra, at 422; Oregon v. Elstad, supra, at 316-17. The Fifth Amendment’s guarantee is both simpler and more fundamental: A defendant may not be compelled to be a witness against himself in any respect. The Miranda warnings protect this privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him.
‘Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.’ Moran at 421 (citing Fare v. Michael C., 442 U.S. 707, 725 (1979)). The ‘totality of the circumstances’ appellate review mandates inquiry into an evaluation of‘age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.’ Fare at 725. Thus, a court must look at the totality of the circumstances to see if the State proved that a defendant had the requisite level of comprehension to waive his Fifth and Sixth Amendment rights.

In this case, the trial court did not address the questions of a knowing or intelligent waiver, government intimidation, or coercion but, rather, determined the issue of voluntariness by allowing the use of the confessions for impeachment purposes. Obviously, portions of our opinion in Duncan v. State, supra, were overlooked.

Although we did not expressly declare Duncan’s confession to have been made involuntarily, we implied as much by noting the following in Duncan v. State, supra:

. . . Duncan was barely literate and marginally retarded. He was not given a waiver form to sign nor was he asked whether he waived his rights; he was kept incommunicado for three and a half days, and it was only at the end of that time that he gave an inculpatory statement. There was no showing of a deliberate and intentional relinquishment of his rights, or that he had a clear understanding of what those rights were.

(Emphasis added.)

Given these circumstances, we see no need to further embellish the underlying facts as to whether or not Duncan’s waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of his decision to abandon. It was not, and, as a result, we cannot say that his confession was voluntary. In addition, the totality of the circumstances surrounding the interrogation of Duncan reveals governmental intimidation and coercion. For example, the following exchange occurred among the police officers and Duncan:

Officer Hurd: You going to ride that till you’re. . .to the electric chair?
* * * *
Prosecutor Matthews: Yeah. Especially somebody that got a good chance of going to the electric chair. Like you. Is that right?
* * * *
Prosecutor Matthews: Reckon that’s enough to keep you out of the electric chair, Samuel?
* * if: *
Officer Cook: Yes. We know exactly what you had on last night. And the only difference that orange’s going to be, it’s going to turn white before long.
* * * *
I want you to think about this. What kind of clothes you want to be buried in?
* * * *
You want to be buried in a suit or a yellow, orange, white uniform?
* * * *
Officer Hurd: Looks like it boils down to a choice . . . whether you want to spend the rest of your life in the pen or do you want to fry in the electric chair.
Duncan: Sir . . .
Officer Cook: That’s the only choice you got.
Duncan: . . .sir, I don’t want to do neither one of them.
Officer Hurd: You going to do one of them.
Officer Cook: One of the other you’re going to do.
Officer Hurd: One or the other.
Officer Cook: One of the other you’re going to do. That’s
a fact. That’s as sure as that thing’s sitting right there.
* * * *
. . . let me tell you. . .let me tell you one thing. I watched that man die. If I’d of got there 30 seconds late. . . sooner I’d of killed your ass right on the spot.
Duncan: Sir, I did not do that, sir. I did not do ... .
Officer Cook: I sat there and watched that man die.
Duncan: Sir, I didn’t do that. Sir, could you give me another cigarette in here, please?
Officer Cook: Sorry.
Duncan: Okay, sir. Could you give me one, sir?
Officer Hurd: I wouldn’t give you the sweat off my balls.

Because of such governmental overreaching, we again cannot say that Duncan’s waiver of his constitutional rights was the product of a free and deliberate choice, rather than governmental intimidation and coercion.

Consequently, the trial court erred in ruling that Duncan’s confession, although inadmissible, could still be used to impeach him at trial.

Duncan makes numerous other assignments of trial error, none of which have merit, and we address only those which might arise upon retrial. He argues that the trial court erred in permitting testimony that a warrant had been issued for him in the State of Washington. However, he cites no authority or convincing argument in support of his claim, and we will not consider it. See Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991).

He also argues that the trial court erred in refusing his submission of a mitigating circumstance. The United States Supreme Court has rejected this residual doubt mitigation circumstance in Franklin v. Lynaugh, 488 U.S. 935 (1988).

Finally, Duncan asserts that the trial court erred in refusing to require weighing of aggravating and mitigating circumstances in Form 3, Question C, which was proffered as follows: “(c) ( ) The aggravating circumstances, when weighed against the mitigating circumstances, justify beyond a reasonable doubt a sentence of death.” We have previously addressed and rejected this argument in Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990).

We have also examined the other points of error, and the potential for these same points arising at a later time is highly problematical; we see no need to provide comment for the purpose of remand.

Pursuant to Ark. Sup. Ct. R. 11(f), we have reviewed all other rulings adverse to Duncan and find that none constitute prejudicial error.

The judgment is reversed, and the case is remanded.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. The first Duncan decision [Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987)] (.Duncan I) was overturned because the state failed to bring Duncan before a magistrate without unnecessary delay. Ark. R. Crim. P. 8.1. We found a connection between the delay of three and one-half days and Duncan’s custodial statement which rendered the statement useless as evidence. That holding made it unnecessary to decide whether the statement, which was not shown to be the product of an extended interrogation, was voluntarily given. In other words, the error which necessitated the reversal of the first case was the state’s failure to pursue a timely arraignment and holding Duncan incommunicado for three and one-half days.

Now the majority holds that the trial court erred in ruling that if Duncan had testified at his second trial his custodial statement could have been used for purposes of impeachment. That ruling was correct, unless it is shown that the statements were not the product of a free and voluntary act on Duncan’s part. Mincey v. Arizona, 437 U.S. 385 (1978); Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (1986).

But the majority has made no serious attempt to examine the evidence on that score. It quotes two excerpts from the opinion in Duncan I, neither of which is particularly pertinent to the issue now before us. One of the quoted excerpts was made in reference to whether Duncan had made a knowledgeable waiver of his Sixth Amendment right to counsel. The other was in reference to the Rule 8.1 issue. What is important, I submit, is not how an appellate opinion generally characterizes the record for purposes of resolving issues of a previous appeal, but what in the record now before us weighs pro and con on whether the trial court clearly erred in determining that statements by Duncan were given voluntarily. Under our many cases we will not reverse the trial court in these matters unless the ruling is shown to be clearly erroneous. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). All the majority opinion provides are segments of Duncan’s interrogation on Tuesday, March 5, the day of his arrest. Admittedly these segments do not show the participants in their best light, but let it be noted that these selective and disjointed excerpts, consisting of barely a page of the opinion, are lifted from a transcript comprising sixty-five pages of questions and answers between Duncan and the officers. A fuller treatment would reflect far more objectively a striking scenario of evasive answers and the increasing frustration reflected in the questions as the hour grew late. Nor does the fact that the idiom of the interrogation room is at times indistinguishable from that of the locker room translate per se into involition. Two points are overlooked by the majority: The questioning did not produce anything inculpatory and although Duncan was told he could terminate the questioning at any time, not once during that span of two and one-half hours did he indicate directly or indirectly that he wanted the questioning to cease. The evident fact is, he hoped to convince the officers he was job hunting in Star City at the time of the homicide. The point to be made is that the trial court decided an issue of credibility after listening to two days of witnesses, and held Duncan’s statements were subject to use for purpose of impeachment. Neither the appellant nor the majority has shown that ruling to be clearly erroneous.

Glaze, J., joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    Dana El Greco FRAZIER v. STATE of Arkansas
    CR 92-5
    828 S.W.2d 838
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      William R. Simpson, Jr,, Public Defender, by: Don Thompson, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Dana Frazier was convicted of first degree murder. He assigns as error the trial court’s refusal to charge the jury on the lesser included offense of manslaughter. The trial court’s refusal to give the instruction was a correct ruling, and we affirm the judgment of conviction.

The proof showed that both appellant and the victim grew up at about the same time in Marvell and, after graduation from high school, both moved to Little Rock where appellant sought a job and the victim attended college. The two were the type of friends who teased one another frequently. On the day of the murder, appellant and a friend went to the victim’s residence. Eyewitnesses stated that appellant appeared to be intoxicated and his pants were wet. The victim looked at appellant and said, “Ooh, Dana peed on hisself.” The statement obviously irritated appellant because he said he was tired of the victim “messing” with him and he was “fixing to kill him.” The victim retreated into his residence, and when he later came out, appellant shot him. Appellant continued firing at the victim as he ran away. The victim died shortly thereafter. Appellant gave a statement to the police in which he admitted killing the victim, but said he had to do so to keep the victim from “nagging” and teasing him.

At trial appellant asserted the defense of justification, or self-defense, and requested an instruction on that defense. That charge was given. He also requested an instruction on manslaughter, but the trial court refused to give such a charge because there was no rational basis for it. Ark. Code Ann. § 5-10-104(a) (1987) provides:

A person commits manslaughter if: (1) He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be[.]

Here there was no testimony to indicate that appellant was acting under the influence of an extreme, emotional disturbance. The testimony that appellant became irritated or annoyed because the victim teased him does not constitute evidence of an extreme emotional disturbance. But, even if appellant’s irritation from being teased could somehow constitute extreme emotional disturbance, there was no proof that it was reasonable. The fact that one friend teases another is not a reasonable excuse for a state of emotional disturbance so great as to excuse killing. Thus, there was no rational basis for giving the instruction on manslaughter and, as we have often pointed out, Ark. Code Ann. § 5-1-110(c) (1987) provides: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.”

Affirmed.