text:
    Gary Lynn JONES and Jimmy David HEDGE v. STATE of Arkansas
    CR 94-70
    889 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994
    [Rehearing denied January 9, 1995.]

      Henry & Mooney, by; Wayne Mooney, for appellant Jones.

      Tiner & Hunter, for appellant Hedge.

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

The appellants, Gary Lynn Jones and Jimmy David Hedge, raise two and eleven points, respectively, for reversal of their first-and second-degree murder convictions. Jones’s two arguments overlap with those made by Hedge (under three headings) and neither is persuasive. The same is true for the arguments advanced by Hedge, and we therefore affirm the convictions of both appellants.

Facts

On the evening of October 4, 1991, appellant Gary Lynn Jones, appellant Jimmy David Hedge, Tammy Hedge, Jerry Clampit, James Blackwell, Carolyn Blackwell, and Jimmy Jack Crawford were together at a cafe called the Greasy Spoon in Harrisburg, Arkansas. At some point between midnight and 1:00 a.m. on October 5, 1991, the Hedges and Clampit left in one vehicle and drove to a gas station. There, Jimmy Hedge had a verbal altercation with James Allison (Dutch) Sims, Jr., accusing him of previously running his wife off the road. Sims drove a female companion to her car, and, on returning to the gas station, he invited Hedge to follow him. Subsequently, after Hedge and his party had followed him to his residence, Sims fired a gun over their vehicle from his driveway.

The Hedges and Clampit then returned to the Greasy Spoon. Mrs. Hedges ran in and told Jones, her brother, what had happened. Angered, Jones, accompanied by Hedge, Clampit, Blackwell, and Crawford, drove to the trailer house where Sims resided with his parents. Sims was standing in the front yard, holding a tire tool and Jones, after getting out of his vehicle, charged Sims and began fighting with him. The other men surrounded Sims and Jones, and, according to Crawford’s testimony, Jones, Hedge, and Clampit all struck Sims with their fists. Blackwell testified that Jones pulled out a knife and stabbed Sims twice. Both Hedge and Clampit struck Sims, Blackwell stated, and Sims dropped to the ground.

Patsy Sims, the victim’s mother, testified that she came outside and saw “five men in my yard and they were all around my son.” She ran into the house, grabbed a pistol that was on a nightstand, went out on the porch, and fired in the air and at Jones’s truck. According to Ms. Sims, when she fired her gun, Hedge threw his hands up and looked at her. He and the others fled the scene.

Meanwhile, Jones went to his truck and started it. At that point, James Allison Sims, Sr., the victim’s father, entered on the passenger side to seize the ignition key, and the two men struggled. Mr. Sims held Jones down by his hair while Ms. Sims shut the engine off and took the key. Jones remained at the scene. Then Mr. Sims found his son on the ground, dead, with several stab wounds. The cause of death was later determined to be a stab wound to the left side of the chest that punctured the lung and heart.

Appellants Jones and Hedge, along with Clampit, Blackwell, and Crawford, were charged by information filed on November 26, 1991, with first-degree murder and second-degree battery in the death of James Sims, Jr. A jury trial was held in late September and early October 1993, with Jones and Hedge as co-defendants. Clampit, Blackwell, and Crawford were called as witnesses for the State. Jones was found guilty of first-degree murder and sentenced to forty years imprisonment, and Hedge was found guilty of second-degree murder and sentenced to fifteen years imprisonment. From that judgment, this appeal arises.

Issues

Given the number of points on appeal, we find it useful to set forth the various issues as framed by Hedge and Jones, noting the arguments which overlap:

I. (Hedge) Whether the trial court erred in refusing to grant appellant Hedge’s motion for mistrial based upon the jury panel being exhausted and the thirteen jurors being called in after all of Hedge’s peremptory strikes were used; (Jones) whether the systematic exclusion of farmers and 13 jurors who had served the day before and forcing appellant Jones to select a jury from the remaining panel unfairly restricted Jones’s right to trial by an a fair and impartial jury.
II. (Hedge) Whether the trial court erred in not granting a mistrial since the jury did not set punishment after being told by the trial court that he would fix punishment if they could not.
III. (Hedge) Whether the trial court erred in giving preliminary instructions to the jury over Hedge’s objections.
IV. (Hedge) Whether the trial court erred in refusing to grant a mistrial when it instructed the jury that a piece of photographic evidence was impartial.
V. (Hedge & Jones) Whether the trial court erred in allowing the prior statement of a state’s witness to be read into the record as a prior consistent statement.
VI. (Hedge) Whether the trial court erred in refusing to grant a mistrial after instructing the jury as to the effect of prior inconsistent statements.
VII. (Hedge) Whether the statement of a state’s witness made to a police officer was hearsay and, as such, inadmissible.
VIII. (Hedge & Jones) Whether the trial court erred in refusing to grant Hedge’s motion for a mistrial based upon the exclusion of all farmers from the venire panel. (Combined with Point I.)
IX. (Hedge) Whether the trial court erred in providing the jury the wrong definition of reasonable doubt. (Combined with Point III.)
X. (Hedge) Whether the trial court erred in refusing to grant Hedge’s motion for directed verdict.
XI. (Hedge) Whether there was sufficient evidence to corroborate the accomplice testimony.

Motions for directed verdict

Appellant Hedge contends that the trial court erred in denying his motions for a directed verdict (Point X) and asserts that the evidence was insufficient to corroborate accomplice testimony (Point XI). As a motion for a directed verdict is a challenge to the sufficiency of the evidence, we must consider the issue of the sufficiency of the evidence before addressing other points on appeal. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994).

Hedge’s attorney made a specific motion for directed verdict at the close of the State’s case, arguing that there was no evidence presented at trial to show that Hedge was guilty of “first-degree murder or any type of homicide” or that he “aided, assisted, abetted, encouraged, solicited, or [did] anything else” to contribute to the homicide. While counsel for Jones specified uncorroborated accomplice testimony as a basis for his motion for a directed verdict, Hedge’s attorney made no reference whatsoever to accomplice testimony in his request.

At the close of all the evidence, Jones’s defense counsel merely said, “We rest, Your Honor. Show our motion renewed, please.” Hedge’s attorney then addressed the trial court with a single word: “Judge?” At that point, the trial court declared, “Show motion for directed verdict on behalf of Hedge and on behalf of Jones renewed and denied.”

To preserve the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State’s case and at the close of all of the entire case. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). Moreover, this court adheres to a strict construction of Ark. R. Crim. R 36.21(b), which deals with the failure to question the sufficiency of the evidence, and has held that a general reference rather than a statement of specific grounds will not satisfy the requirement of the rule. See Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). A general motion constitutes a waiver of the right to challenge the sufficiency of the evidence. Daffron v. State, supra.

The failure of Hedge’s defense counsel either to include accomplice testimony as a ground for a directed verdict or to renew the motion for directed verdict rendered the motion insufficient to preserve specific arguments for appellate review. A “bright line” has been drawn. Directed verdict motions must state specific grounds. Daffron v. State, supra; Walker v. State, 318 Ark. 109, 883 S.W.2d 843 (1994). The sufficiency issue having been waived, the merits of these issues need not be considered. Daffron v. State, supra.

Fair and impartial jury

Both Jones and Hedge urge in their first points for reversal, with Hedge overlapping in his Point VIII, that the trial court erred in refusing to grant a mistrial on the basis that both appellants were unable to obtain a fair and impartial jury drawn from the actual jury panel summoned by the court. Specifically, Jones and Hedge argue that the trial court erred first in excusing twelve jurors and an alternate who, immediately before the appellants’ case, had served on a criminal trial that resulted in an acquittal and then in recalling them after respective counsel had exercised all of their peremptory challenges. They contend, further, that the trial court erred in systematically excluding all farmers from jury duty because the trial dates coincided with harvest time. The result, Jones and Hedge assert, was the impeding of their ability to make a jury selection from a cross-section of the population.

A mistrial, of course, is an extreme remedy that should be resorted to only when an error is so prejudicial that justice cannot be served by a continuation of the trial. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge, and the exercise of that discretion will not be disturbed on appeal absent an abuse of that discretion. Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992).

A defendant does not have the right to have a jury of his choice from the panel, but only a right to a competent, fair, and impartial jury. Stout v. State, 247 Ark. 948, 448 S.W.2d 636 (1970); Wells v. State, 247 Ark. 386, 446 S.W.2d 217 (1969). Here, the farmers were excused, as the trial court noted, on a “case-by-case consideration” of their requests to be allowed to return to their harvests to avoid economic hardship beyond the normal sacrifice and inconvenience experienced by citizens called to jury duty.

As the State points out, and as appellant Hedge acknowledges in his reply brief, the recent case of Jones v. State, 317 Ark. 131, 876 S.W.2d 262 (1994), is controlling with respect to the issue of the excusal of the farmers. In that case, which arose from the same county and the same circuit court, we held that, while the wholesale excusal from the venire of persons who claim farming as their occupation is reversible error if it is automatic and based solely on that fact, when each farmer is considered on an individual basis and the trial court determines that each would suffer extreme hardship, no systematic exclusion has occurred. The same is true here.

Regarding the automatic excusal of the twelve jurors and an alternate in one lot, we hold that, however laudable the trial court’s intention may have been to spare the previous jury a second consecutive trial and however well-known or established the court’s policy may have been, it amounted to a systematic exclusion to exempt as a body the thirteen jurors and, as such, was error. The persons who served on the previous jury constituted a significant class of eligible jurors, as discrete in identity as the group of farmers who had been individually questioned and excused.

Even though the trial court’s action was error, the defect was cured by the court’s recalling the members of the previous day’s jury when the original panel of venirepersons was exhausted. As we have emphatically held, when objecting to the jury panel and its selection, one must show prejudice as well as any error. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1988). Here, prejudice has not been demonstrated.

Jones and Hedge further complain that they were prevented from making their jury selection from a true cross-section of venirepersons because, by the time the thirteen jurors from the previous day’s trial had been summoned, they had used all of their peremptory challenges and were obliged to accept the first juror called. This, however, is merely an allegation of error and does not constitute the required demonstration of prejudice. Ruiz v. State, supra. It was the responsibility of defense counsel, who were aware that the pool of thirty venirepersons might be depleted and that other jurors consequently would be summoned, to manage and exercise their peremptory challenges prudently. The trial court did not abuse its discretion in denying the motion for mistrial.

Setting of punishment

For his second point on appeal, Hedge insists that the trial court erred in denying his motion for a mistrial based on the trial court’s statement to the jury foreman that if the jurors could not agree on punishment, it would be set by the trial court.

The issue arises from the following exchange between the court and the foreman, when the jury returned to the courtroom after a period of deliberation:

THE FOREMAN: If we were not able to come to an agreement, if we were to find one or the other guilty or not guilty, if we were not able to come to an agreement on the punishment, where do we go from there?
THE COURT: All right. If you are unanimously agreed upon guilty on either defendant but are unable to agree on punishment, let me know.
THE FOREMAN: I’ll let you know that we are.
THE COURT: You are?
THE FOREMAN: Yes.
THE COURT: All right. If the jury is unanimously agreed upon guilt but are unable, and you advise me that you are unable to agree on punishment, then you return a verdict of guilty and the punishment will be fixed by the Court.
THE FOREMAN: Okay.
THE COURT: Now, if you want to retire, deliberate, and see if you can agree upon a punishment for a moment, fine. In fact, I’d ask that you do retire and deliberate. Be sure that you let me know that you cannot agree upon punishment. If that happens, then it will be fixed by the Court.

The jury retired and later returned with guilty verdicts of first-degree murder for Jones, whose punishment was set at forty years imprisonment, and second-degree murder for Hedge, whose punishment designation was left blank on the verdict form. The trial court inquired whether the jury was unable to agree upon Hedge’s sentence and, upon being informed that that was the case, went on to pronounce a sentence of fifteen years in the Department of Correction.

In Ward v. State, 236 Ark. 878, 880, 370 S.W.2d 425, 426 (1963), we held that:

the jury should not be told initially they can let the court impose the punishment but should be told only after they report they have reached a verdict of guilty but are unable to agree on the punishment to be imposed.

(Emphasis in original.) We reiterated this holding in Weems v. State, 259 Ark. 532, 534, 534 S.W.2d 753, 754 (1976), declaring such an instruction delivered “prior to a finding of guilty by the jury” to be reversible error. (Emphasis in original.) See Ark. Code Ann. § 16-90-107(a) (1987).

The circumstances in the present case, however, more closely resemble those in Burford v. State, 242 Ark. 377, 413 S.W.2d 670 (1967), where the jurors returned to the courtroom to inquire whether, if the defendant was found guilty, they could allow the court to fix punishment. There we held that the jury had already reached its guilty verdict when the inquiry was made and that the trial court did not err in responding to the question. Here, too, it is evident from the foreman’s statement “I’ll let you know that we are” is an affirmative answer to the trial court’s statement that “If you are unanimously agreed upon guilty on either defendant but are unable to agree on punishment, let me know.” “You are?” the trial court asked, in order to clarify the mixed-tense response of the foreman. “Yes,” the foreman confirmed.

At that point, the trial court permitted the jury to retire again and reconsider the question of punishment. Thus, not only did the trial court comply with settled statutory and case law, but it took pains to urge the jury to deliberate further and attempt to reach a decision on punishment, despite the fact that it would have been within the bounds of its authority had it simply called for the verdicts on the spot and imposed sentence.

Determining when the jury cannot agree is a matter over which the trial court has considerable discretion. McGirt v. State, 289 Ark. 7,708 S.W.2d 620 (1986). The trial court did not abuse its discretion under the circumstances in refusing to grant a mistrial.

Preliminary instructions and “reasonable doubt”

Prior to opening statements, the trial court, over a general objection by Hedge alone, orally instructed the jurors on various matters, including first-degree murder and reasonable doubt. After the instructions had been given, Hedge again objected, singling out the court’s definition of reasonable doubt. The trial court overruled these objections, and Hedge argues in his Point III that the trial court committed error by giving undue emphasis to instructions which were subsequently repeated at the end of all testimony. In order properly to analyze Hedge’s argument in this regard, we consider it in two subsections pertaining to the timing of the giving of the preliminary instructions and the definition of “reasonable doubt” provided by the trial court, a matter set forth in Hedge’s Point IX.

a. Timing

In Bennett v. State, 302 Ark. 179, 789 S.W.2d 436 (1990), this court held that Ark. Code Ann. § 16-89-125 (1987) unambiguously requires that jury instructions be given only “[w]hen the evidence is concluded.” The timing of the giving of instructions, we noted, relying on reported psychological studies, “can make a difference in a verdict.” 302 Ark. at 185, 789 S.W.2d at 439. Prejudice resulted from the mixing of the times of delivery of instructions in Bennett, where the trial judge initially instructed the jury on everything but character evidence and the range of punishment and then, four days later, instructed on those two subjects, giving the impression that he thought the accused was guilty.

In these circumstances, though, no prejudice is evident. While the trial court may have erred in instructing the jury prematurely, the error was, under the facts of the present case, harmless. The various general preliminary instructions included one on first-degree murder; at the end of all the evidence, lesser included offenses were added to the previously given instructions, thereby expanding the possibilities for the jury’s decisionmaking. Indeed, the jury was fully and completely instructed before it retired to deliberate and was provided with written copies of the entire set of instructions. The jury returned a second-degree-murder verdict on Hedge rather than one for first-degree murder, with which he had been charged. Therefore, the preliminary instructions occasioned him no prejudice and, though error, were harmless.

b. Definition

In Hedge’s Point IX, combined here with his Point III because it arises from the giving of the.preliminary instructions, he contends that the trial court erred in refusing to declare a mistrial on the basis that it provided an erroneous and misleading instruction on “reasonable doubt.”

The trial court, in delivering its preliminary instructions, informed the jury that the State had the burden of proving each defendant guilty beyond a reasonable doubt. The court then added the following:

While the State’s burden of proof is a strict and heavy burden, it is not necessary that the defendant’s guilt be proved beyond a reasonable doubt. It is only required that the State’s proof exclude any reasonable doubt. A reasonable doubt is a real doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. A juror is convinced beyond a reasonable doubt if after an impartial consideration of all the evidence in the case he has an abiding conviction of the truth of the charge.

While this instruction was based on AMCI 110. it employed certain terms that do not appear in the model instruction, such as “real doubt” and “common sense,” and deleted a clause.

Hedge argues that the adjective “real” placed before “doubt” confuses the definition of “reasonable doubt.” But, historically, the concept of reasonable doubt has been regarded as difficult to define with precision. See Commonwealth v. Webster, 59 Mass. 295 (1850). As the United States Supreme Court recently observed in Victor v. Nebraska, 511 U.S._, 127 L. Ed. 2d 583 (1994): “The government must prove beyond a reasonable doubt every element of a charged offense. In re Winship, 397 U.S. 358 (1970). Although this standard is an ancient and honored aspect of our criminal justice system, it defies easy explication.” Slip op., 1.

In the Victor case, the Court noted that, provided a trial court instructs a jury on the necessity that guilt be proven beyond a reasonable doubt, the United States Constitution does not require the use of a particular form of words. Instead, the instructions, taken as a whole, must correctly convey to the jury the concept of reasonable doubt.

Two attempts to define reasonable doubt were at issue in Victor v. Nebraska, supra. In one of the case’s paired appeals, a California trial court had instructed the jury that reasonable doubt

is not a mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.

Id., Slip op. at 4. (Emphasis in original.) The California Supreme Court rejected the claim that the highlighted terms violated the Due Process Clause, and the United States Supreme Court affirmed its decision. Noting that the language of the instruction had been taken verbatim from Massachusetts Chief Justice Lemuel Shaw’s language in Commonwealth v. Webster, supra, 59 Mass, at 320, the Supreme Court stated that it had previously equated “moral certainty” with the phrase “beyond a reasonable doubt” and concluded that the term “morai evidence,” though not commonly used, retains unchanged its 19th-century meaning of “empirical evidence,” i.e., the proof introduced at trial. Slip op. at 6, 9.

Without condoning the use of the term “moral certainty,” the Court concluded that, in the context of the surrounding language of the instruction, there was “no reasonable likelihood that the jury would have understood moral certainty to be disassociated from the evidence in the case.” Victor v. Nebraska, Slip op. at 13. As for the use of the phrase “not a mere possible doubt,” the Court pointed again to the context, quoting the final portion of the sentence in question (“everything ... is open to some possible or imaginary doubt”), to show that the sense in which the instruction used the word “possible” was clear. Slip op. at 14.

Turning to the companion case from Nebraska, the Court affirmed the state court’s decision to uphold the following juryinstructión language:

“Reasonable doubt” is such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon. It is such a doubt as will not permit you, after full, fair, and impartial consideration of all the evidence, to have an abiding conviction, to a moral certainty, of the guilt of the accused. At the same time, absolute or mathematical certainty is not required. . . . You may find an accused guilty upon the strong probabilities of the case, provided such probabilities are strong enough to exclude any doubt of his guilt that is reasonable. A reasonable doubt is an actual and substantial doubt arising from the evidence, from the facts and circumstances shown by the evidence, or from the lack of evidence on the part of the state, as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture.

Slip op. at 15. (Emphasis in original.) Although agreeing that the use of “substantial doubt” was “somewhat problematic,” the Court held that the explicit distinction between that phrase and “doubt arising from mere possibility, from bare imagination, or from fanciful conjecture” removed any ambiguity of meaning. Slip op. at 16-17. Moreover, the Court noted, the instruction provided an approved alternative definition of “reasonable doubt” — that which would cause a reasonable person to hesitate to act.

Regarding the use of “moral certainty,” the Court remarked that the instruction equated a doubt sufficient to preclude moral certainty with the acceptable “doubt as would cause a reasonable and prudent person ... to pause and hesitate” to act. Slip op. at 18. Finally, the Court sanctioned the use of “strong probabilities” where the sentence in which the phrase was used continued with a proviso that the probabilities would be strong enough to exclude any reasonable doubt.

The context in which a term or phrase is used in an instruction is, therefore, of critical importance. In the present case, the term “real doubt” is quite clearly a paraphrase, cast in positive terms, of the phrase “not a mere possible or imaginary doubt,” which appears in AMCI 2d 110 and which derives ultimately from Commonwealth v. Webster, supra. Indeed, the word “real” is defined in part as “actual rather than imaginary, ideal, or fictitious.” The Random House Dictionary of the English Language, 2nd ed. (1987), p. 1607.

Otherwise, the language of the preliminary instruction followed the model instruction, apart from the inclusion of the phrase “based upon reason and common sense” and the deletion of the clause “and one that would cause a careful person to pause and hesitate in the graver transactions of life.” With respect to the invocation of “reason and common sense,” the instruction simply imported a variant of the “observations and experiences” language of AMCI 2d 103 and, in effect, embraced the spirit of the deleted “careful person” passage.

Although, in the context of the entire preliminary instruction, the sense of AMCI 2d 110 was preserved, we must emphasize that we do not condone the trial court’s adaptation of AMCI 2d 110. However, taken as a whole, the instruction correctly conveyed to the jury the concept of reasonable doubt.

Further, the trial court delivered, without variance, the complete model instruction at the end of all the evidence and provided a written copy to the jury before it retired to deliberate. Under the circumstances, Hedge has failed to show in what way he was prejudiced by the superseded preliminary instruction. The trial court did not err in declining to grant the extreme remedy of a mistrial.

Comment on “impartial” evidence

Hedge contends, in his Point IV, that the trial court erred in refusing to grant a mistrial because the judge commented on the evidence when he referred to a diagram of the crime scene as “impartial.” As the diagram, which displayed the location of the body, various vehicles, and other points of reference in relation to the trailer house, was being marked for identification, the trial court advised the jurors:

This is suppose[d] to be just an impartial diagram of the scene where everything was at the time to aid and assist you in understanding the evidence and testimony.

Hedge’s attorney moved for a mistrial, asserting that the court had commented on the evidence, and the court denied the motion.

At that point, Hedge’s counsel requested an admonition, and the court addressed the jury as follows:

All right, ladies and gentlemen, you were told, the Court a moment ago called this an impartial diagram. It’s up to you. It’s up to you to determine whether or not it is impartial or not.

On appeal, Hedge claims that the admonition compounded the error.

Considering the context of the trial court’s original remarks and admonition, we cannot say that the court abused its discretion in denying the motion for a mistrial. The diagram in question simply identified locations at the crime scene and imported no implication of guilt on Hedge’s part; the illustration thus bore neutral evidentiary value, and the trial court merely pointed out the obvious.

Moreover, any error inherent in the trial court’s statement to the jurors was cured by the admonition, given promptly upon Hedge’s request, which in effect instructed the jury to disregard the previous remark and reach its own conclusion. See Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). Hence, Hedge cannot now assert prejudice. Magar v. State, supra.

Reading of prior statement of witness

Both Jones, in his Point II, and Hedge, in his Point V, argue that the trial court erred in allowing the prior statement of a witness to be read into the record as a prior consistent statement. They contend that the statement constituted inadmissible hearsay.

The State called James Blackwell, one of the men present at the time of the murder who was charged with the crime but not tried with Jones and Hedge. He was questioned, on direct examination, about what he did and what he observed on the night in question. On cross-examination, counsel for both Hedge and Jones pressed Blackwell about a statement he had given to the police soon after the crime occurred in which he described his actions when he witnessed Jones and Sims fighting. “I saw Gary going for his knife,” the statement read. “I tried to get to Gary but I saw him stab Dutch twice.” Under cross-examination, Blackwell explained that he meant that he “hollered” at Jones when he said that he had “tried to get to [him].” As he put it, “I’m just a country boy.”

During re-direct examination, the State showed Blackwell his statement and asked him to read the first paragraph. The following colloquy then occurred at the bench:

MR. TINER (HEDGE’S ATTORNEY): We object to the witness reading any statement. He’s here and he can testify live as to what his recollection is and he can use this to refresh his recollection. But we are objecting to his reading the statement which the Court has already denied him the opportunity to admit.
THE COURT: Court simply said that would not be admitted into evidence as substitutive evidence. Certainly he may refer to it and examine it, may read from that statement. In other words, you inferred or implied that he had changed some of his testimony, a recent fabrication. If he made a statement, then that may be offered to rebut any allegation, insinuation of recent fabrication. For that purpose your objection will be overruled.
MR. TINER: The point is, Your Honor, that we have inferred that he has changed his mind on it. That’s what we’re objecting to.
THE COURT: If he made a prior statement consistent with his sworn testimony here, then it may be appropriate to show it.
MR. MOONEY: Actually he did.
THE COURT: He may either be asked to read the statement himself for refreshing his memory—
MR. MOONEY: It was consistent.
THE COURT: —read it out loud, he may read the prior inconsistent statements.
MR. TINER: Your Honor, it’s our position that his testimony was consistent with his statement.
THE COURT: Was consistent?
MR. TINER: Yes, sir.
MR. DAVIS (PROSECUTOR): And I was at a different cross-examination, Your Honor, because they challenged him on what was in his statement for twenty minutes.
MR. TINER: We didn’t challenge him, we just asked him about it.
THE COURT: All right. Court will overrule the objection. You may proceed.

The witness was then allowed to read the statement in its entirety.

A prior statement by a witness testifying at a trial is not hearsay if it is “consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.” Ark. R. Evid. 801 (d)( 1 )(ii). The word “recent,” describing the fabrication, is merely a relative term, meaning that the challenged testimony was supposedly fabricated to meet the exigencies of the case. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). But the principle has no application when a witness had the same motive for fabrication when the statement was made as he had when he testified in the case. Id. See also Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991); Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988).

According to Jones and Hedge, Blackwell had the same motive for fabrication when he gave his statement to the police as he had when he testified at trial. He was arrested and charged with the same crime. The prior statement was given to the police in connection with the investigation. Blackwell’s motive was unchanged throughout, they insist — he sought to absolve himself of any appearance of guilt in the homicide.

While there appears to be some superficial merit to this line of reasoning, it is evident, from a perusal of the exchange between the attorneys and the trial court at the time the objection to the reading of the statement was made, that defense counsel shifted their grounds for objection even as they lodged it, arguing first that “he has changed his mind” and then asserting that the “testimony was consistent with his statement.” The sudden substitution of the basis for the objection prompted the prosecutor to remark in exasperation that “I was at a different cross-examination.” By the end of the colloquy, Hedge’s attorney was explaining that defense counsel had not challenged the witness on the statement but had just “asked him about it.” It is a distinction too subtle to withstand scrutiny.

The record does not reflect that Jones actually objected on this point. He has thus failed to preserve the issue for appeal. Hedge, whose argument we may consider, claims that defense counsel used the statement Blackwell gave the police to impeach the witness but made no charge of recent fabrication in relation to the statement. This claim is simply untenable in the light of the course pursued during cross-examination, where defense counsel suggested to Blackwell that “you remembered it [the events recorded in the statement] a whole lot better than you do here almost two years later,” and the initial defense statement in the sidebar dialogue that “we have inferred that he has changed his mind on it.” (Emphasis added.) As Rule 801(d)(1)(h) indicates, a charge of recent fabrication may be either express or implied. The implication here was, to say the least, quite strong.

Given the confused posture of Hedge’s objection (which seemed to entail an improvisational abandonment of the original grounds) and the failure of Jones to lodge a formal objection at all, added to the fact that the jury had already heard parts of the statement during the cross-examination, we cannot say that the trial court erred in allowing the entire statement of witness Blackwell to be read.

Limiting instruction

In his Point VI, Hedge advances his contention that the trial court erred in denying his motion for mistrial made on the basis of a limiting instruction given by the trial court concerning prior inconsistent statements made by a witness. He claims that the action of the trial court was improper and constituted a comment on the evidence.

Jimmy Jack Crawford, on cross-examination, was questioned about a prior statement he had made to Officer David Layman in an effort by counsel for Hedge to impeach the witness. When asked if everything he had told the police officer was the truth, Crawford replied, “Well, I just — I don’t remember actually. That was a long time ago and I was shaken up. So I could’ve said anything. But what I’m telling here today is the truth.”

Following an objection by the State to the “argumentative” character of the questioning, the trial court admonished the jury as follows:

Evidence that a witness previously made a statement which is inconsistent with his testimony at the trial may be considered by you for the limited purpose of judging or testing the credibility of the witness. But you may not consider that prior inconsistent statement as evidence going to the truth of the matter asserted in that prior statement.

Defense counsel objected that the instruction was a comment on the evidence, a position maintained on appeal.

The instruction in question followed AMCI 2d 202 and, in so doing, was a correct instruction on the law. There is no constitutional prohibition against a trial court commenting on the law as opposed to the facts. Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990). Further, the commentary on the model instruction indicates that the best practice is for the trial court to deliver AMCI 2d 202 immediately after the prior inconsistent statement is brought forth, as the trial court did here.

The trial court did not err in refusing to grant the extreme remedy of a mistrial.

Hearsay objection

Hedge argues, in his Point VII (the final one to be reviewed), that the trial court erred in overruling his hearsay objection made during the State’s re-direct examination of Jerry Clampit. It is clear, however, that the State was impeaching the witness with a prior inconsistent statement.

The State asked Clampit why he and the other men went with Jones to Sims’s house. The witness replied that it was “[j]ust to see what was going to happen.” The State then posed the following query: “I don’t suppose you made the statement to David Layman at the jail during your statement that we were going out there to rough up Dutch Sims?”

Hedge objected on the basis of hearsay and his right to confront witnesses. His objection was overruled. Clampit then acknowledged having made the statement to the police officer, explaining that “I didn’t think all of us was going to rough him up, but I figured someone would whup the hell out of him.”

When evidence is offered to show that a witness made a prior inconsistent statement, rather than for the truth of the matter asserted, the evidence cannot be excluded as hearsay. Ark. R. Evid. 801 (d)( 1 )(i); Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). This is a clear-cut example of the evidentiary rule in operation. The trial court did not err in overruling Hedge’s hearsay objection.

Affirmed as to appellant Hedge; affirmed as to appellant Jones.

       Since Hedge’s trial, (he model instructions have been revised, but AMCI 2d 110 is identical to AMCI 110.

      Thc text of the model instruction, which is to be given in every case, reads as follows:
      Reasonable doubt is not a mere possible or imaginary doubt. It is a doubt that arises from your consideration of the evidence and one that would cause a careful person to pause and hesitate in the graver transactions of life. A juror is satisfied beyond a reasonable doubt if after an impartial consideration of all the evidence he has an abiding conviction of the truth of the charge.
      AMCI 2d 110. This definition, excepting some modifications, is taken from Laird v. State, 251 Ark. 1074, 476 S.W.2d 811 (1972).


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Judith A. NOSAL v. James A. NEAL, as Executive Director of the Supreme Court Committee on Professional Conduct; and Leslie Steen, as the Clerk of the Arkansas Supreme Court
    94-395
    888 S.W.2d 634
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994

      Dover & Dixon, P.A., by: Philip E. Dixon and M. Darren O’Quinn, for appellant.

      Morgan E. Welch and Christopher R. Heil, for appellees.
   Robert H. Dudley, Justice.

Judith A. Nosal filed an application with this court’s Client Security Fund Committee and asked that she be reimbursed for a loss suffered as the result of a defalcation by her attorney. The Client Security Fund Committee referred the claim to the Committee on Professional Conduct. See Client Sec. Fund Comm. R. 4(F). The Executive Director of the Committee on Professional Conduct responded that the Committee on Professional Conduct could not certify the claim for payment to the Client Security Fund Committee because Ms. Nosal’s attorney, who is now deceased, had not been suspended or disbarred from the practice of law and because no proceedings had been commenced against him at the time of his death. We reverse and remand for certification and payment of the claim.

I.

The source of power to establish both the Committee on Professional Conduct and the Client Security Fund Committee is Amendment 28 to the Arkansas Constitution, which provides: “The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.”

Section 5 of the Procedures Regulating Professional Conduct of Attorneys at Law provides a right of appeal for an attorney who has been disbarred or suspended, but the Procedures do not expressly provide a right of appeal for a client filing a claim against the Client Security Fund. Likewise, the rules governing the Client Security Fund Committee do not provide a right of appeal for a claimant seeking reimbursement from the Fund. Even so, a right of appeal does exist. See Sexton v. Supreme Court Comm. on Professional Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988).

We have stated that proceedings before the Committee on Professional Conduct are in the nature of administrative proceedings and for the most part are to be carried out as though the committee was an administrative agency. Walker v. Supreme Court Comm, on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982). The same reasoning applies to proceedings before the Client Security Fund Committee.

All administrative remedies must be exhausted before a right of appeal exists from one of our committees. McCullough v. Neal, 314 Ark. 372, 862 S.W.2d 279 (1993). In this case Ms. Nosal has exhausted her administrative remedies and is entitled to pursue her appeal.

II.

Ms. Nosal employed attorney Ron Bruno to represent her in a matter before the Internal Revenue Service. On July 19, 1991, she gave Mr. Bruno a check for $41,190.69 to satisfy a lien filed by the Internal Revenue Service. The check should have been deposited in the attorney’s escrow account, but it was deposited in his regular business account and then converted to his own personal use. Mr. Bruno did, however, reimburse Ms. Nosal the sum of $8,500.00 in July 1993, but then additionally converted two checks from Ms. Nosal totaling $1,209.50. As a result, Ms. Nosal suffered a loss of $33,900.19. Mr. Bruno died on September 10, 1993. The Internal Revenue Service lien was not satisfied, and Mr. Bruno’s estate is without sufficient assets to reimburse Ms. Nosal. She filed a claim with the Client Security Fund Committee on October 29, 1993.

We created the Client Security Fund Committee “for the purpose of protecting clients from losses caused by the dishonest conduct of members of the State Bar of Arkansas.” In re Client Security Fund, 254 Ark. 1075, 1075, 493 S.W.2d 422, 422 (1973). In the per curiam creating the Fund we provided for payment only in cases in which the attorney had been disbarred or suspended from the practice of law or had voluntarily surrendered his attorney’s license. However, in 1987, we amended the original per curiam to provide for reimbursement to a client when the attorney “died before disbarment, suspension, or surrender of license could be had.” In re Client Security Fund, 291 Ark. 647, 647 (1987). See also In re Client Security Fund, 314 Ark. 635, 858 S.W.2d 670 (1993) (which reaffirms the 1987 amendment).

The Committee on Professional Conduct denied Ms. Nosal’s claim because “[n]o lawyer disciplinary action was pending against Mr. Bruno at the time of his demise.” The ruling was in error because the per curiam expressly provides that it is not necessary for disciplinary action to be pending when the attorney has “died before disbarment, suspension, or surrender of license could be had.” We intend for the Fund to reimburse clients in situations such as this.

On appeal, the Committee asks us to interpret the per curiam’s language to mean that a claim should not be allowed when there has been no disciplinary action before the death of an attorney and the client was not diligent in filing a disciplinary action. In this case, the conversion took place in 1991, but the claim was not filed until 1993. The Committee contends the client was not diligent. There may be a case where a client would not act with diligence and the claim would be stale, but we need not decide that issue in this case, for this claim was not stale. Here, the attorney-client relationship was ongoing. Ms. Nosal was paying Mr. Bruno a retainer fee of $750 to $1000 per month and questioned Mr. Bruno about the lien still being in effect and about her funds. The attorney reimbursed Ms. Nosal $8,500 in July 1993, but later converted an additional $1,209.50. He died on September 10, 1993. Thus, the claim was not stale.

The Committee also asks us to recognize that reimbursement from the Fund to a client is a matter of grace and not a matter of right. Reimbursement is a matter of grace and not a matter of right, see Client Sec. Fund Comm. R. 4(F), but a client should be reimbursed when he or she comes within the provisions of the rules for reimbursement and the Client Security Fund Committee has sufficient funds to make the payment. The “matter of grace” language in the per curiam must be read in conjunction with the sentence stating that the Fund is not insurance. The money to reimburse clients comes from this court’s annual assessment of $4.00 on each member of the Bar of Arkansas, and if those funds should not be sufficient to pay all claims in any one year, the Client Security Fund Committee might pay some claims in one year and the others in the next year, or might pay only a percentage of each valid claim. Thus, the per curiam provides that the Fund is not insurance and that payment is a matter of grace. Even so, when there are sufficient funds to reimburse the client and the claim validly comes within the provisions, payment should be made.

III.

We appreciate the considerable time the members of both the Committee on Professional Conduct and the Client Security Fund Committee give, and will continue to give, to the improvement of the Bar of Arkansas. Correspondingly, we appreciate the work of the attorneys for Ms. Nosal, for they know they will not be remunerated for their services. See Client Sec. Fund Comm. R. 4(F). It is our hope that the creation and implementation of the Client Security Fund and the Committee on Professional Conduct, combined with the services of members of the Bar of Arkansas, as in this case, demonstrate the strong commitment of this court and the Bar of Arkansas to the protection of clients from losses caused by dishonest conduct of members of the Bar.

Reversed and remanded.

Newbern, J., not participating.


author: Tom Glaze, Justice. Steele Hays, Justice,

text:
    Roy LEGGETT v. CENTRO, INC., d/b/a Arkansas Division of Centro, Inc.
    94-317
    887 S.W.2d 523
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994
    [Rehearing denied January 9, 1995.]

      Gibson, Hamm & Westphal, by: Nancy L. Hamm, for appellant.

      Roy & Lambert, by: Jerry L. Lovelace, for appellee.
   Tom Glaze, Justice.

Appellant Roy Leggett worked as a machine operator for appellee Centro, Inc. His job required repetitive gripping activities which he claimed caused his elbow to hurt. Leggett went to a doctor who diagnosed Leggett’s condition as tennis elbow tendinitis. The doctor related Leggett’s injury to his job. Upon Leggett’s return to work, his injury and pain continued, and he subsequently received medical treatments and physical therapy. Leggett’s physician released him with a ten percent permanent disability to his right arm, and opined Leggett should not return to a job requiring repetitive gripping motions or heavy lifting. The physician recommended Leggett be retrained in another vocation which did not require use of the right hand or arm. Eight days after receiving the physician’s letter, Centro terminated Leggett, stating it had no position that met the physician’s restrictions.

Leggett filed suit against Centro, alleging Centro’s actions in discharging Leggett constituted unlawful retaliatory conduct for Leggett’s having filed a workers’ compensation claim. Centro’s defense was largely based upon its contention that, because of the restrictions placed on Leggett by his physician, Leggett could no longer perform his job; nor did Centro have other jobs Leggett could perform. Following a jury trial, the jury returned a verdict in Centro’s favor from which Leggett brings this appeal.

Leggett’s points on appeal involve the correctness of jury instructions 7, 8 and 9 to which he objected below. These instructions, along with instruction 6, are not pattern instructions found in Arkansas Model Jury Instructions. Instead, they were apparently drawn in an attempt to meet the principles of law announced in Wal-Mart, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991). That being so, we first discuss the Baysinger decision before evaluating the parties’ instructions and objections thereto.

In Baysinger, Baysinger filed an action against Wal-Mart, alleging she had worked for Wal-Mart but that Wal-Mart wrongfully terminated her because she had prosecuted a workers’ compensation claim. The trial court instructed the jury.on wrongful discharge, and the jury returned a verdict in Baysinger’s behalf. Wal-Mart appealed, arguing Baysinger’s exclusive remedy was under the Workers’ Compensation Act, and the trial court lacked jurisdiction of the wrongful discharge claim she filed. This court rejected Wal-Mart’s argument.

In upholding Baysinger’s wrongful discharge claim, we recognized the general rule that, when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause. The Baysinger court noted that well-defined exceptions existed to the at-will doctrine and held that a public policy exception occurs when an employer discharges an employee for claiming workers’ compensation benefits. Id. This court further held that the employee has the burden to establish a prima facie case of wrongful discharge which is made by substantial evidence that the workers’ compensation claim was a cause of the discharge. Id. After the employee makes a prima facie case, the burden then shifts to the employer to prove there was a legitimate, non-retaliatory reason for the discharge. Id. The Baysinger court explained such a reason might be the one offered by Wal-Mart, namely, that employee/Baysinger did not have the physical ability to do her job, or any other job which might have been provided at that point.

In the present case, the trial court gave instructions 6, 7, 8 and 9 which the court believed covered the law applicable in a wrongful discharge case. No one objected to instruction 6 which basically stated that, while an employee, as a general rule, can be terminated at will without any reason or cause, an employee may not be terminated for claiming workers’ compensation benefits since to do so would violate Arkansas’s law and public policy that such claims and benefits be paid.

The court next gave instruction 7 which spelled out that Leggett, as employee, had the burden to establish a prima facie case of wrongful discharge by showing (1) he sustained damages, (2) he was discharged from employment with Centro, (3) a cause of the discharge was his workers’ compensation claim and (4) the wrongful discharge was the proximate cause of his damages. This instruction defined prima facie case as one which has proceeded upon sufficient proof to that stage where it will support a finding in Leggett’s favor if evidence to the contrary is disregarded, and in determining whether Leggett had proved the third element, that a cause of the discharge was his workers’ compensation claim. The jury was instructed that Leggett did not have to prove that the sole motivation for discharge was the workers’ compensation claim, but rather the claim was one of the causes of discharge. The next paragraph of instruction 7 contained language to which Leggett objected and that paragraph, with objectionable language emphasized, reads as follows:

If you find from the evidence in this case that each of these four propositions has been proved, then the burden of proof shifts to the employer to prove that there was a legitimate non-retaliatory reason for the discharge. For example, such a reason might be that the employee did not have the physical ability to do his job. (Emphasis added.)

The trial court concluded its instructions bearing on wrongful discharge by giving instructions 8 and 9 which respectively related that Centro was not required to keep an employee (Leggett) who was unable to perform the duties he was performing prior to his injury and that, by law, Centro was not required to offer Leggett alternate jobs, within its factory, equal to Leggett’s restrictions.

At trial, and now on appeal, Leggett’s objection to instruction 7 is that the instruction erroneously listed one of Centro’s defenses, namely, that Centro could prove it discharged Leggett for a legitimate non-retaliatory reason by showing Leggett did not have the physical ability to do his job. Leggett further claims instructions 8 and 9 compound the error in instruction 7 by making further evidentiary comments by instructing the jury “an employer is not required to keep an employee who is unable to perform the duties he was performing prior to his injury” and “Arkansas law does not require Centro to offer Leggett alternative jobs within the factory equal to his restrictions.”

We agree that the language he objects to in instruction 7 and instructions 8 and 9 unnecessarily singled out particular facts for undue emphasis. Harlan v. Curbo, Guardian, 250 Ark. 610, 446 S.W.2d 459 (1971). In instruction 6, the trial court thoroughly and correctly instructed the jury concerning Arkansas’s discharge-at-will law and its public policy exception pertaining to an employee’s right to make a valid claim for workers’ compensation benefits. By instruction 7, it then instructed the jury that, if Leggett failed to establish a prima facie case of wrongful discharge or if Centro had proved it had “a legitimate nondiscriminatory reason for the discharge, then the jury’s verdict should be for Centro.” However, the trial court continued with instruction language that directed the jury’s attention to the facts that Centro was not required to keep Leggett if he was unable to perform his prior duties, nor was it required to offer Leggett an alternative job. Centro incorrectly argues that instructions 8 and 9 set out the law as found in Baysinger. Instead, Baysinger merely suggested that an employee’s inability to perform his or her prior job or other available jobs were examples of legitimate, non-retaliatory reasons for discharging the employee. By using these examples in its instructions, the trial court gave added impetus to reasons why Centro could discharge Leggett and thereby diminished its earlier instruction that, even if Centro had other reasons for terminating Leggett, Leggett had only to prove that his workers’ compensation claim was one of those reasons.

For the reasons given above, we reverse and remand the case for a new trial.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I respectfully disagree that this case should be tried a second time. The trial court labored to instruct the jury in a manner consistent with Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), and was, I believe, reasonably successful. Some indication of that effort is demonstrated by the fact that the language of instruction 7 which the majority dislikes (“For example, such a reason might be that the employee did not have the physical ability to do his job.”) is included in instructions 3 and 4 requested by the appellant.

But I would affirm the trial court on a different ground. In Baysinger, a majority of this court fashioned from whole cloth a cause of action for retaliatory discharge of an employee for filing a workers’ compensation claim. That decision was crafted largely on Sterling Drug, Inc. v. Oxford, 294 Ark. 239,743 S.W.2d 380 (1988) and M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), neither of which had the slightest connection with the law of workers’ compensation. The opinion in Baysinger mentions the provision of the Arkansas Workers’ Compensation Act imposing penalties on an employer who discriminates against an employee who files a claim [Ark. Code Ann. § 11-9-107 (1987)], but made no serious analysis of the exclusive remedy doctrine. I need not repeat the view expressed in dissent to the Baysinger decision (Special Justice Alan Epley and Hays, J., dissenting; Brown, J., dissenting on other grounds) except to emphasize that this court has said repeatedly that it has no power to create a cause of action not provided for in the Workers’ Compensation Act; that its remedies are exclusive. Seawright v. U.S.F. & G. Co., 275 Ark. 96, 627 S.W.2d 557 (1982); Barth v. Liberty Mutual Ins. Co., 212 Ark. 942, 208 S.W.2d 455 (1948)(a cause of action under the act is “purely statutory”); in Huffstettler v. Lion Oil Co., 110 F.Supp. 222 (W.D.Ark. 1953), Judge Miller wrote that only the legislature could create new causes of action under Amendment 26, creating the Workers’ Compensation Act; and in J.L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S.W.2d 82 (1943), this court wrote unanimously that if the legislature had not provided for court review, then the courts could not have considered workers’ compensation cases at all.

The errancy of the Baysinger decision was confirmed by the General Assembly at its first session following Baysinger. Act 796 of 1993 reaffirms the exclusive remedy doctrine and specifically annuls Baysinger and two other ill advised decisions of this court.

In a comparable situation we applied Act 44 of 1989 [Ark. Code Ann. § 12-9-108(a) (1987)] retroactively, overruling Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989) and Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989). See Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991). In White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), we said: “the courts have no power to perpetuate a rule of law which the legislature has repealed.” I submit that Baysinger is an aberration that never should have come about and appellant’s asserted cause of action for retaliatory discharge is non-existent.

      We note that the proper recovery of damages in a public policy wrongful discharge action is the sum of lost wages from termination until the day of trial, less the sum of any wages that the employee actually earned or could have earned with reasonable diligence. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). Additionally, an employee can recover for any other tangible employment benefit lost as a result of the termination, but future damages are not recoverable. Id.

        Mapco, Inc. v. Paine, 306 Ark. 198, 812 S.W.2d 483 (1991); Thomas v. Valmac Industries, 306 Ark. 228, 812 S.W.2d 673 (1991).


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Bennie CLEVELAND v. STATE of Arkansas
    CR 93-188
    888 S.W.2d 629
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994

      Thomas D. Deen, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

This case is before us on certiorari from the United States Supreme Court vacating our decision reported as Cleveland v. State, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292 (1993), and remanding the case for our reconsideration in light of the Court’s decision reported as J.E.B. v. Alabama ex rel. T.B., 511 U.S._, 114 S. Ct. 1419 (1994). After a jury trial, appellant was convicted of five charges: capital murder, attempted capital murder, kidnapping, aggravated robbery, and theft of property; the kidnapping and aggravated robbery charges were merged in the capital murder conviction. Cleveland, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292. Appellant was sentenced consecutively to life imprisonment without parole for the capital murder, thirty years imprisonment for the attempted capital murder, and ten years imprisonment for the theft of property. Id. Upon appeal to this court, we affirmed the convictions. Id. We now reverse and remand this case to Desha County Circuit Court for a new trial.

During voir dire proceedings prior to the empanelment of the jury for appellant’s July 1992 trial, the following colloquy occurred:

MR. ROBINSON [counsel for defendant]: There is one more challenge. This has not yet become the law, but maybe one of these days, I guess — We noticed in the strikes that of the ten challenges, that there, the, there is a gender bias. Nine females were struck and only one male by the State.
THE COURT: All right. Are you — Are you raising that as an objection to the use of the, the nine female strikes by the State?
MR. ROBINSON: Yes, sir. I have no case authority as the Court is well aware.
THE COURT: The Court is frankly not aware of any at this time. It has been extended, but it hasn’t been extended past —
MR. ROBINSON: Yes, Sir.
THE COURT: — past racially identifiably [sic] groups or, or parties at this point, as far as the Court knows. All right. But you have made your record.

We take judicial notice of the fact that the case law alluded to in this exchange was Batson v. Kentucky, 476 U.S. 79 (1986) (a Kentucky state court criminal conviction on petition for certiorari) and its progeny. In Batson, the Court held that intentional discrimination on the basis of race in the exercise of peremptory challenges by a prosecutor in a criminal trial is violative of the protections afforded the defendant and the excluded juror under the Equal Protection Clause of the Fourteenth Amendment of our federal Constitution. Subsequently, the Court has extended this principle to govern civil proceedings as well, reasoning, in the words of Justice Blackmun: “We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in and reflective of, historical prejudice.” J.E.B., 511 U.S. at__, 114 S. Ct. at 1421 (citations omitted).

At the date of appellant’s trial, however, the Batson principle had not been extended by the Court to prohibit intentional discrimination on the basis of gender in the use of peremptory challenges in jury selection, and a division of authority existed among those state and lower federal courts which had considered the issue. Cleveland, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292. The trial judge denied appellant’s objection to the gender-based nature of the state’s peremptory challenges, and on appeal to this court, we declined to extend Batson to this case, in view of the fact that the J.E.B. case, an Alabama state court paternity action on grant of certiorari, was then pending and expected to provide the Court the opportunity to resolve that issue. Id.

On April 19, 1994, the J.E.B. case was decided, and the Court indeed extended the Batson principle to intentional discrimination in the use of peremptory strikes on the basis of gender, stating “gender, like race, is an unconstitutional proxy for juror competence and impartiality.” J.E.B., 511 U.S. at_, 114 S.Ct. at 1421. In the J.E.B. case, the State of Alabama filed a civil paternity action on behalf of the petitioner, id. at_, 114 S. Ct. at 1433 (O’Connor, J., concurring), and used nine of its ten peremptory challenges to remove men from the jury pool. The Court, in reversing and remanding the state court decision, held that "[ijntentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly, where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.” Id. at__, 114 S. Ct. at 1422. We now hold that the J.E.B. decision also governs the prosecutor’s use, as the state actor in this case, of its peremptory challenges.

In J.E.B., the Court also confirmed that the requirements governing proof in the trial court of the unconstitutional nature of challenged race-based peremptory strikes outlined in the Batson decision also apply to proof of challenged gender-based peremptory strikes in jury selection. J.E.B., 511 U.S. at_, 114 S. Ct. at 1429-30. Since Batson, we have applied these requirements to compel the following procedure at trial to protect the constitutional rights of a defendant who objects to the state’s use of its peremptory challenges on grounds of race bias:

[Ujpon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state’s explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.
The standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must test whether the court’s findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant’s objections, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the state.

Colbert v. State, 304 Ark. 250, 255, 801 S.W.2d 643, 646 (1990).

A prima facie case of purposeful discrimination, in the context of the Batson test for challenged race-based peremptory strikes, we have held, may be made “by showing one of the following: (1) the totality of the relevant factors gives rise to an inference of discriminatory purpose; (2) the total or seriously disproportionate exclusion of Negroes from the jury venires; or (3) a pattern of strikes, or questions and statements by a prosecuting attorney during voir dire.” Wainwright v. State, 302 Ark. 371, 382, 790 S.W.2d 420, 425 (1990), cert. denied, 499 U.S. 913 (1991) (citation omitted). In this case, appellant’s objection to the state’s use of 90% of its peremptory challenges to remove women from the jury pool sufficed to raise an inference, if not a presumption, that the gender of the jurors involved was a factor in the decision to strike. Colbert, 304 Ark. 250, 801 S.W.2d 643; see also J.E.B., 511 U.S._, 114 S. Ct. 1419.

That inference established, the explanation given by the state for its challenged strikes appears totally insufficient without further inquiry by the court to eliminate any probability of gender motivation in the state’s actions. The state’s explanation was as follows:

[PROSECUTING ATTORNEY]: Your Honor, I would just point out for the purposes of the record regarding the motion the Defense made on gender bias, that when you take a look at the Defense strikes, if, in fact, the State’s were gender biased one way, so are the Defense’s. Ten of the twelve are against males. And, you know, it appears to balance out.

In this case, because the trial court failed to: (a) make a finding, from all relevant circumstances, as to the sufficiency of the state’s gender-neutral explanation, and (b) as it appears was also required on these facts, then conduct a sensitive inquiry into the basis for each of the challenges by the state, the evidence before us does not establish that the state’s challenges were for valid reasons without any gender bias. Therefore, the defendant’s constitutional rights have not been protected and the trial court’s error requires a reversal and retrial. Colbert, 304 Ark. 250, 801 S.W.2d 643.

In so ruling, we reject the state’s argument that the better remedy here is to remand this case to the trial court first for the limited purpose of conducting an evidentiary hearing to determine whether an equal protection violation was in fact committed at the July 1992 trial proceedings. We are mindful that our holding in this case is consistent with our prior rulings regarding trial court failures to comply with the requirements of Bat-son hearings. Colbert, 304 Ark. 250, 801 S.W.2d 643; Wainwright,. 302 Ark. 371, 790 S.W.2d 420, cert. denied, 499 U.S. 913; Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). In addition, it is noteworthy that our holding will both avoid the difficulties of continuing and concluding the Batson hearing in this case more than two years after the original voir dire, and should more effectively expedite a speedy and economical ultimate disposition of this matter than would be the circumstance if we adopted the state’s argument.

Reversed and remanded.

Hays and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. This decision is worrisome because this court, for the first time, has assumed jurisdiction of an issue that was never developed in the trial court and has decided it. By doing so, this court has taken original jurisdiction over the matter which is in direct contravention of our State Constitution. Ark. Const, art. 7, § 4.

As the majority correctly points out, during voir dire defense counsel made an objection based on gender discrimination by the prosecutor in jury selection. Defense counsel readily admitted that he had no authority for the objection, and the trial court concurred that it knew of none. Accordingly, the court refused to entertain the objection, and no Batson!J.E.B. procedure was followed by the court and the parties to determine whether a violation had occurred.

This court has made it clear what that procedure is in the racial context. See Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). First, a defendant must make a prima facie case of purposeful racial discrimination in juror challenges. If such a case is made, this shifts the burden of proof to the State to prove that the exclusion of jurors is not based on race. The State must then give a neutral explanation of the juror strikes. If the State fails in this, a sensitive inquiry in the nature of a more comprehensive hearing must follow. We have added that the standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must be whether the court’s findings are clearly against a preponderance of the evidence. Hence, the trial court must state its findings and ruling on the sufficiency or insufficiency of the racially neutral explanation provided by the State to enable this court to review what occurred. Id.

Clearly, these are precise steps that must be taken by the trial court in making a decision on discrimination in the jury-selection process, whether it be racial discrimination or gender discrimination. None of that was done by the trial court in this case. In fact, the issue was never considered because there was no authority for it. Now for the first time this court has decided that a gender violation did occur and has summarily granted a new trial. In doing so the majority (1) has not engaged in a Bat-son/J.E.B. analysis, and (2) has usurped the jurisdiction of the trial court. Furthermore, this decision runs counter to a decision by the Eighth Circuit Court of Appeals, which, of course, is not binding on this court, but also to decisions by this court. See Reynolds v. City of Little Rock, 893 F.2d 1004 (8th Cir. 1990), cert. denied, 501 U.S. 1204 (1991) (remand for Batson hearing); Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990) (remand for Denno hearing); Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980) (remand for Denno hearing).

In Reynolds, the Eighth Circuit decided that Batson v. Kentucky, 476 U.S. 79 (1986), did apply to trials of § 1983 civil rights actions. In remanding the case to the District Court to determine whether a Batson violation had occurred, the court stated:

We therefore vacate the judgment of the District Court insofar as it adopts the position that the City need not explain its peremptory challenges against black jurors. On remand, the District Court should first determine whether plaintiff has made a prima facie case of discrimination. If it finds that a prima facie case has been made out, it should then conduct a hearing pursuant to the evidentiary standards articulated in Batson, 476 U.S. at 96-98, 106 S.Ct. at 1722-1723. In the event that the District Court believes that the City’s peremptory challenges are racially motivated, it should order a new trial. If the Court finds no racial motivation, the judgment will stand affirmed, subject, however, to plaintiff’s right to appellate review of this finding of fact.

893 F.2d at 1009-1010.

Similarly, this court has held in two cases where Denno hearings were warranted, following appeal, that a remand to the trial court was appropriate. Moore v. State, supra; Harris v. State, supra. In each case, we concluded: “A new trial should be ordered only if the trial court finds the statement to have been involuntary.” Moore, 303 Ark. at 5, 791 S.W.2d at 700; see also, Harris, 271 Ark. at 571, 609 S.W.2d at 50.

The majority offers no case law supporting what it is doing, other than a vague reference to the fact that a Batsonl J.E.B. hearing is difficult two years after the trial and that judicial economy supports the decision. Those considerations do not justify an erroneous exercise of jurisdiction. Though Cleveland argues that this court has made Batson decisions before, we have never done so when the trial court had never considered the issue. The State should certainly have an opportunity to comment on whether it engaged in purposeful discrimination. It is worth noting that the original jury that heard the Cleveland case was comprised of five women. See Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993).

I would reverse this case and remand it to the trial court for a decision under J.E.B. v. Alabama, 511 U.S._, 114 S.Ct. 1419 (1994).

Hays, J., joins.


author: Donald L. Corbin, Justice.

text:
    Eugene Donnell SCOTT v. STATE of Arkansas
    CR 94-754
    888 S.W.2d 628
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

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

Appellant, Eugene Donnell Scott, appeals a judgment of the Pulaski County Circuit Court convicting him of first degree murder and aggravated assault and sentencing him consecutively to thirty-five years and six years respectively in the Arkansas Department of Correction. Jurisdiction of this case is in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.

Appellant’s two convictions were the result of a single incident occurring at approximately 1:00 a.m. on January 18, 1993, outside the Butler Apartments in Little Rock. Appellant was charged with the murder of Linda Kitchens and the assault of Valerie Jackson. Appellant and Ms. Kitchens had been arguing inside an apartment. Ms. Kitchens was the sister of appellant’s girlfriend, Dionne Dantzler. Ms. Kitchens left the apartment and entered the back seat of a Ford Taurus; Ms. Jackson was in the driver’s seat. Ms. Dantzler struggled with appellant before and after he fired approximately seven or eight shots at the Taurus with Ms. Kitchens and Ms. Jackson inside. Ms. Kitchens suffered a single gunshot wound to the head. She survived neurosurgery but later died from the gunshot wound.

As his sole point for reversal, appellant argues the trial court erred in admitting certain testimony of state’s witness, Dr. Frank Joseph Paretti, a forensic pathologist from the Arkansas State Crime Laboratory who conducted the autopsy on Ms. Kitchens. Specifically, appellant challenges the following portion of Dr. Paretti’s testimony relating the location of the entrance wound to Ms. Kitchens’ head: “Well, according to the neurosurgeons, the entrance wound was situated on the right parietal scalp.” This statement was allowed after appellant’s hearsay objection. The trial court sustained a later hearsay objection and then directed the prosecutor to limit the doctor’s testimony to stating what his findings were based on the reports that he evaluated. Appellant also challenges Dr. Paretti’s testimony that the neurosurgeons removed the entrance and exit wounds. Appellant reasons, then, that the autopsy was based on the neurosurgical charts, rather than Dr. Paretti’s personal knowledge; therefore, appellant argues the testimony was inadmissible hearsay. Appellant contends the testimony, being hearsay, was admitted for the truth of the matter asserted — that the bullet entered from the right side. Appellant emphasizes the importance of the location of the entrance wound because that information was part of the evidence the jury was allowed to consider in determining whether appellant was the person who fired the shot that killed Ms. Kitchens.

The admissibility of expert testimony rests in the broad discretion of the trial court. Smith v. State, 258 Ark. 601, 528 S.W.2d 389, cert. denied, 425 U.S. 912 (1975). Consequently, we will not reverse a trial court’s ruling on these issues unless the appellant demonstrates an abuse of that discretion. Sims v. Safeway Trails, Inc., 297 Ark. 588, 764 S.W.2d 427 (1989).

Citing Sims, 297 Ark. 588, 764 S.W.2d 427, and Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983), the state contends the challenged testimony was admissible under ARE Rule 703. Rule 703 provides that an expert witness may base his opinion on facts or data inadmissible in evidence if of a type reasonably relied upon by experts in the particular field. Surridge, 279 Ark. 183, 650 S.W.2d 561; Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978). The test stated in Rule 703 is whether the expert’s reliance is reasonable. Id. Dr. Paretti testified that his procedure for conducting autopsy examinations included examining reports from other medical agencies and police agencies. He also testified that, with respect to the gunshot wound proceeding from the right side to the left side of Ms. Kitchens’ brain, he could not tell which was the entrance wound and exit wound without relying on the notes of the neurosurgeon. We cannot say it was unreasonable for Dr. Paretti to rely .on the neurosurgeons’ reports.

The very purpose of Rule 703 is to allow the courts to follow the same practice as do experts themselves in forming their opinions, illustrated, for example, by allowing a physician to base his diagnosis on reports from other medical sources. Surridge, 279 Ark. at 160, 650 S.W.2d at 565; Dixon, 262 Ark. at 762, 561 S.W.2d at 296. Moreover, when an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the testimony, rather it presents a jury question as to the weight of the testimony. Arkansas State Hwy. Comm’n v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985). There was no abuse of discretion in allowing the challenged testimony.

The judgment is affirmed.


author: Robert L. Brown, Justice.

text:
    OUACHITA MINING AND EXPLORATION, INC. v. Jack WIGLEY, Mountain Resources, Inc., Russell Oinonen and Fred Kopp
    94-374
    778 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994

      Friday, Eldredge & Clark, by: Elizabeth J. Robben and Jeffrey H. Moore, for appellant.

      Bob Keeter, for appellees.
   Robert L. Brown, Justice.

This appeal concerns the issue of whether a party defendant (appellee Jack Wigley) is permitted to use parts of his deposition in his case in chief after the plaintiff (appellant Ouachita Mining and Exploration, Inc.) has first presented parts of the same deposition to the jury. Ouachita Mining contends that the trial court abused its discretion in allowing Wigley to use parts of his own deposition in his defense. We disagree, under these circumstances, and we affirm the judgment.

In 1986, appellees Jack Wigley and Fred Kopp were principal owners of appellee Mountain Resources, Inc., an Arkansas corporation, which owned several mining claims for gold in an area near the town of Cherry Hill. Appellee Russell Oinonen investigated those claims on behalf of certain people in the State of Ohio who would eventually form Ouachita Mining. Oinonen returned to Ohio with sample rocks and assays, suggesting a value for gold ore at the Cherry Hill site of $1,100 per ton. Ouachita Mining was then organized, and on August 14, 1986, Mountain Resources entered into an agreement with Ouachita Mining for the assignment of the Cherry Hill claims. Ouachita Mining did not conduct independent geological or exploratory work on the Cherry Hill claims before entering into the contract. In September 1986, Ouachita Mining also invested in an existing mill, Jackpot Mill, in which Jack Wigley was a one-third owner. A joint venture agreement between Wigley and Ouachita Mining was struck, and the plan was to use Jackpot Mill to perform the separation process for the gold ore.

After purchasing the claims, Ouachita Mining conducted exploratory searches at the Cherry Hill site, and its geologist, Wallace Mitchell, concluded in a report to the corporation submitted on October 27, 1986, that there was no gold in the area. Ouachita Mining next sought to sell off some of the claims, but its potential buyer, Sunshine Mining Company, also concluded, after conducting assays, that the claims would yield no gold. In January 1987, Ouachita Mining ceased making payments on its contract to Mountain Resources, and on May 16, 1991, it sued Mountain Resources, Jack Wigley, and others for damages for (1) various violations of the Arkansas Securities Act; (2) common law fraud; (3) breach of contract; and (4) breach of fiduciary duty. Compensatory damages as well as punitive damages in the amount of $1 million were sought.

At the ensuing jury trial, Ouachita Mining called Jack Wigley as a witness as part of its case. Wigley appeared to be very hard of hearing and was having difficulty answering questions. The trial court called the attorneys to the bench to discuss Wigley’s problem, and defense counsel recommended that counsel for both sides reduce their questions to writing. The trial court suggested a recess so that counsel for Ouachita Mining could have time to write out their questions and defense counsel could review the proffered documents to determine whether they could stipulate to their admissibility.

After the recess, the following colloquy occurred among counsel and the trial court:

Mr. Moore [Ouachita Mining’s counsel]: Thank you, Your Honor. Your Honor, with the Court’s permission, we plan to read portions of Mr. Wigley’s deposition in lieu of his testimony as if he was a declarant and unavailable. If you would determine that he was a declarant and a part (sic) opponent, Your Honor. We would offer his deposition, portions of his deposition against him as party opponent.
Mr. Keeter [Defense counsel]: No objection to that, Your Honor, on the condition that I also can read parts of the deposition given by Mr. Wigley.
By the court: If part of it is offered, any other part of it can be offered.
By Mr. Moore: Subject to the rules of evidence as to relevance.
By the court: Of course.
Mrs. Robbens [Ouachita Mining’s counsel]: Your Honor, I believe that we’re entitled to — regardless of an unavailability or availability to read a party opponents. I don’t believe that holds true for Mr. Keeter.
By the court: Well, if you read part of it, then he can read part of it. It’s real simple. Go ahead.
Mr. Moore [Ouachita Mining’s counsel]: Is Mr. Keeter limited in any way? Can he read any part of the deposition? I’m not offering the entire deposition into evidence, Your Honor. I’m curious, are we making an agreement here or —
By the court: Well, apparently you’re not, but I’m going to let — in view of the witness’s remarks earlier and his apparent inability to hear, I’m going to allow the use of the deposition. If I let you use part of it, then I should let them use part of it. It seems only fair to me. Now, as far as any evidentiary problems, you’ll have to bring those to my attention somehow so I can rule on it, keeping in mind I don’t have a copy of it.

Ouachita Mining’s counsel then used Wigley’s deposition to introduce several documents. Counsel also read several excerpts from that deposition to the jury.

Following the use of Wigley’s deposition by Ouachita Mining, defense counsel tried to use it in cross-examination. The trial court stopped defense counsel’s use of the deposition when Ouachita Mining’s counsel objected on grounds of hearsay. Discussion among the trial court and counsel for the parties was had over which theory had been employed to allow Ouachita Mining to read the deposition. Ouachita Mining’s counsel contended that they had offered parts of the Wigley deposition on the basis that Wigley was a party opponent witness. Defense counsel countered that one ground argued by Ouachita Mining was unavailability of Wigley due to deficient hearing. Ouachita Mining’s counsel offered to withdraw the “unavailability” ground as a reason for usage and stated that they only invoked use of the deposition as a statement by a party opponent. Defense counsel stated that he had not objected to use of Wigley’s deposition because he had understood that he could also introduce parts of the deposition. The trial court ended the discussion by saying that it would rule on defense counsel’s use of the deposition after defense counsel called Wigley as a witness in his own case.

After Ouachita Mining rested, its counsel objected to Wigley’s use of the deposition in his case in chief because defense counsel had not demonstrated that Wigley was unavailable. The trial court overruled the objection. Defense counsel called Wigley as a witness and began to read parts of his deposition. At one point, Ouachita Mining objected to Wigley’s deposition testimony on the basis that Wigley was interpreting a contract in violation of the parol evidence rule. The trial court made the following ruling and finding:

By the court: Since we’re allowing this testimony over the objection of the Plaintiff to be presented in the form of this deposition, due to [the] severe apparent hearing problem of this witness, Mr. Wigley, the Court is finding he is unavailable and I’m going to sustain the objection based on the parole (sic) evidence rule.

The trial court later appeared to retract its ruling on the parol evidence rule, and defense counsel continued to read extensively from Wigley’s deposition. Following that, counsel for Ouachita Mining conducted cross-examination by one written question, and on redirect, defense counsel submitted two written questions. After recross by a written question, defense counsel began to ask oral questions. Ouachita Mining’s counsel objected to this, and the trial court sustained the objection.

At the conclusion of the trial, the jury returned a verdict in favor of the appellees on all counts, and judgment was entered accordingly.

Ouachita Mining argues in this appeal that the trial court abused its discretion in allowing Wigley to use his own deposition in his defense when he was present. There are three facets to this argument: (1) appellees failed to prove that Wigley was unavailable which would render his deposition testimony an exception to the hearsay rule under Ark. R. Evid. 804; (2) appellees failed to give notice that it would use Wigley’s deposition; and (3) Ouachita Mining was prejudiced by Wigley’s use of his deposition.

Though Ouachita Mining hinges much of its appeal on the issue of whether defense counsel proved that Wigley was unavailable, we conclude that the issue is decided by Rule 32 of our rules of Civil Procedure regarding use of depositions in court proceedings. The trial court was adamant throughout the trial that if one party uses part of a deposition at trial, the other party is likewise entitled to do the same. We agree.

Jack Wigley was a party defendant to this lawsuit brought by Ouachita Mining. Ouachita Mining had taken his deposition and then sought to use it at trial. Rule 32(a)(2) of the Arkansas Rules of Civil Procedure reads: “The deposition of a party . . . may be used by an adverse party for any purpose.” Moreover, our rules of evidence are clear that admissions by a party-opponent are not hearsay. Ark. R. Evid. 801(d)(2). Hence, Ouachita Mining was entitled to use the deposition of Jack Wigley as part of its case irrespective of the hearsay rule and irrespective of whether Wigley was available or unavailable at trial, and Ouachita Mining did so.

After Ouachita Mining used parts of the Wigley deposition, the trial court was correct in allowing Wigley to use any other parts of his own deposition as part of his case. Our Rules of Civil Procedure are unequivocal on this point:

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

Ark. R. Civ. P. 32(a)(4) (emphasis ours). We observe no requirement for Wigley to prove his own unavailability once Ouachita Mining chose to introduce part of Wigley’s deposition into evidence. That act opened the door for Wigley to use “other parts” of the same deposition.

Ouachita Mining maintains that this presents an anomalous situation where the defendant is present at trial, yet using his own deposition in lieu of live testimony. But it was Ouachita Mining that first used the Wigley deposition, and our rules permit defense counsel to do exactly what was done in this case. Otherwise, a party entitled to use the deposition of a party opponent could receive an unfair advantage by reading from the opposing party’s deposition and then foreclosing that party from responding with testimony from the same deposition. To allow what Ouachita Mining advocates would hamstring the opposing party and is at odds with Rule 32(a)(4). Ouachita Mining also contends that Rule 32(a)(4) was not the basis for the trial court’s decision, but it is undisputed that the court referred to the terms of the rule in its comments from the bench, if not to the number of the rule itself. There was no abuse of discretion by the trial court on this point.

Nor did the trial court err in not requiring prior notice to Ouachita Mining that Wigley was going to use his own deposition. For one thing, as already pointed out, Wigley did not initiate use of his deposition. The opposing party, Ouachita Mining, did. It would be somewhat ludicrous to then mandate Wigley to notify Ouachita Mining that it was going to avail itself of the same deposition. Furthermore, the apposite rule of procedure does not require this. Ark. R. Civ. P. 32(a)(4). To reiterate, once one party has used the deposition at trial, an opposing party may introduce any other parts regardless of that party’s availability, subject, of course, to the rules of evidence.

For its final point, Ouachita Mining urges that it was prejudiced by Wigley’s use of the deposition. We need not reach this argument because we hold that the trial court appropriately exercised its discretion in permitting Wigley to use his deposition under these circumstances.

Affirmed.


author: Per Curiam.

text:
    Clinton HANSBERRY, Jr. v. STATE of Arkansas
    94-991
    887 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered November 21, 1994

      Heather Patrice Hogrobrooks, for appellant.
    No response.
   Per Curiam.

This is a juvenile delinquency proceeding in which appellant, Clinton Hansberry, Jr., by his attorney, Heather Patrice Hogrobrooks, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on her part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.