author: Otis H. Turner, Special Justice.

text:
    Winston BRYANT, Attorney General and George Vena, Deputy Attorney General v. Thomas A. MARS
    91-262
    830 S.W.2d 869
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992
    [Rehearing denied June 22, 1992.]

      Winston Bryant, Att’y Gen., by: Mary B. Stallcup, Senior Asst. Att’y Gen., for appellants.

      John J. Watkins, for appellee.

      Newbern, J., not participating.

   Otis H. Turner, Special Justice.

This case is a test of the parameters of the statutory exemption granted the Attorney General of Arkansas from the provisions of the Arkansas Freedom of Information Act (FOIA) 93 of 1967, as amended.

In a utility rate case pending before the Arkansas Public Service Commission (Commission), the appellee Thomas A. Mars, an attorney for Arkansas Western Gas Company, served discovery requests on the appellant Attorney General for production of information relating to the pending case. The requested information included the data utilized by Mitchell & Mitchell, consultants from Dallas, Texas, in compiling a report for the Commission in the pending rate case. The Attorney General objected to the discovery request. On the same date a written request was made pursuant to the FOIA to inspect and copy documents kept in the office of Mitchell & Mitchell, which were relied upon by the consultants in preparing their filed report in the rate case. The appellee also sought to inspect and copy records in the Attorney General’s office relating to the Arkansas Western Gas proceeding but excluding any memoranda, working papers, and correspondence created by the Attorney General himself. The Attorney General responded by making available all documents except those that he asserted fell within the Attorney General exemption for “unpublished memoranda, working papers, and correspondence of the Attorney General” — namely, documents prepared by staff and the consultants.

Thereafter, this suit was filed to require disclosure of all documents not personally created by the Attorney General. The case was heard by the trial court upon the stipulation of the parties, and the trial court concluded that the “Attorney General” statutory exemption applied only to memoranda, working papers, and correspondence of the Attorney General himself but not to such records created, prepared, obtained, gathered, or assembled by, or provided or furnished to, members of the Attorney General’s staff or private consultants.

We reverse as we believe the trial court’s interpretation of the statutory exemption is overly restrictive.

The Attorney General asserts three points as bases for this appeal: first, this court is not bound by the circuit court’s decision; second, the circuit court erred in finding that the FOIA’s working papers exemption applies only to the officeholder personally and not staff members or expert consultants; and third, the working papers exemption includes all documents prepared, collected, or assembled by the Attorney General’s staff and the outside consultants.

This court is not bound by the decision of the circuit court. However, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977). In this regard, we find that the trial court erroneously construed the effect of the statutory exemption granted to the Attorney General. Points two and three will be considered as a single issue contesting the trial court’s restrictive interpretation of the exemption.

The Arkansas Freedom of Information Act, originally enacted as Act 93 of 1967 and subsequently amended, is codified as Ark. Code Ann. § 25-19-101 through -107 (1987 & Supp. 1991) and provides in pertinent part:

“Public records” means writings, recorded sounds, films, tapes, or data compilations in any form required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.

Clearly, all of the information sought by appellee falls within the statutory definition of public records unless exempted. Section 25-19-105 provides in pertinent part:

(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:
(7) Unpublished memoranda, working papers, and correspondence of . . . the Attorney General[.]

A review of the existing case law cited to support each argument sheds little light on the ultimate issue other than to suggest, through history, dictum, or by analogy, the parameters of the exemption. Even so, much of the history and dictum appear to be in conflict. For example, in Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987), we rejected the contention of the Arkansas Department of Human Services that files maintained by that agency’s attorneys were exempted from the FOIA but, in so holding, we gratuitously noted that there had been no appeal from a portion of the circuit court’s order exempting a letter, a memorandum, and trial notes prepared by an Assistant Attorney General because these documents were “unpublished memoranda, working papers, and correspondence of the Attorney General” within the meaning of the statutory exemption. Id. at 175, 728 S.W.2d at 515.

Subsequently, in Arkansas Hwy. & Transp. Dep’t v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988), we seemed to ratify the decision of the trial court in Scott v. Smith, supra, by noting with apparent approval an FOIA exemption for records created by the Assistant Attorney General, while again drawing the line with regard to state agency records in possession of the Attorney General. We stated:

The third argument presented by the appellant is that the real estate appraisals amounted to working papers, correspondence, and unpublished memoranda of the Attorney General. This argument is answered by our opinion in Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987). In Scott, the trial court’s ruling was that a “letter, a memorandum, and trial notes prepared by the assistant attorney general were exempted from disclosure because they were ‘unpublished memoranda, working papers, and correspondence of the Attorney General.’ ” The trial court further held that the state agency records which were in the possession of the deputy general counsel of the Human Services Department and the assistant attorney general were subject to public disclosure.
On appeal we specifically rejected the argument for reversal that the court erred in holding that the Freedom of Information Act applied to litigation files maintained by attorneys representing state agencies. [Emphasis added.]

Hope Brick Works, supra, at 494-95, 744 S.W.2d at 713-14.

Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987) lends further support to the appellee’s position. In holding that working papers of the Legislative Joint Auditing Committee (a committee created by the General Assembly) were not exempted from public inspection under the exemption granted to “members of the General Assembly,” we stated that “[t]he working papers of an auditor who is a state employee, cannot be deemed the private papers of individual legislators without completely disregarding the plain and simple language of the FOIA.” Id. at 92, 722 S.W.2d at 583. (Emphasis added.) Thus, there was an implication that only the “private papers” of the named official were exempted.

We are fully aware of our prior decisions which clearly state that exemptions are to be narrowly construed in favor of openness, Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), and we reaffirm that general policy. However, we are nevertheless persuaded that the stated policy does not preclude an open-minded consideration of the meaning of the exemption as it applies to the Attorney General of Arkansas. Without burdening this opinion with citations to the numerous but unrelated prior cases, there are extensive references clearly referring to the “Attorney General” as an office as opposed to an individual. The ordinary accepted usage of the term clearly includes not only the individual holding the elective office but also his authorized deputies and representatives.

While recognizing our commitment to the general proposition that the FOIA should be broadly construed in favor of disclosure and exceptions construed narrowly in order to counterbalance the self-protective interests of the governmental bureaucracy, McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), we are also aware of the need for a balancing of interests to give effect to what we perceive to be the intent of the General Assembly. In doing so, a common sense approach must betaken. Simmons First Nat’l Bank v. Liberty Mut. Ins. Co., 282 Ark. 194, 667 S.W.2d 648 (1984).

A useful observation in this regard is offered by Judge Richard A. Posner in his work, The Problems of Jurisprudence (Harvard University Press, 1990), at 270, 273:

[J]udges should ask themselves, when the message imparted by a statute is unclear, what the legislature would have wanted them to do in such a case of failed communication. The answer may be “nothing”; or there may be no answer; but the question ought to be asked.
[Interpretation is creative rather than mechanical. . . . When confronting unclear statutes, judges . . . have to summon all their powers of imagination and empathy, in an effort — doomed to frequent failure — to place themselves in the position of the legislators who enacted the statute that they are being asked to interpret. They cannot only study plain meanings; they must try to understand the problem that the legislators faced.

In interpreting the legislative intent, we hold that the term “Attorney General” as used in the statute should be given its common and ordinary usage to include not only the officeholder but his staff members as well. This, we believe, reflects the legislative intent.

The working papers of Mitchell & Mitchell, the outside consultants retained by the Attorney General, are also exempt from the FOIA as working papers of the Attorney General. We note that, in the recent case of City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990), it was held that working papers of outside attorneys retained by the municipality were subject to the FOIA. However, there was no statutory exemption in Edmark. In this case, by way of contrast, the Mitchell papers became working papers of the Attorney General and are thus subject to the statutory exemption.

Reversed and dismissed.

Newbern, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Allen CLAY v. STATE of Arkansas
    CR 92-547
    828 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Louis A. Etoch, for appellant.
    No objection.
   Per Curiam.

Appellant, Allen Clay, by his attorney has filed for a rule on the clerk.

His attorney, Louis Etoch, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Tammy PENTER v. BALDWIN PIANO AND ORGAN COMPANY
    92-385
    832 S.W.2d 215
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Anthony W. Bartels, for appellant.

      Bill Penix, for appellee.
   Per Curiam.

The petitioner, Tammy Penter, asks that we review the decision of the Arkansas Court of Appeals affirming a decision of the Workers’ Compensation Commission. The Commission found the evidence did not support Ms. Penter’s claim for temporary total disability which had been allowed by the Administrative Law Judge.

Ms. Penter argued to the Court of Appeals that it should change its standard of review from that of whether there is “substantial evidence” to support the commission’s decision to whether there is “substantial evidence on the record as a whole,” a standard applied in Gavin v. Heckler, 811 F.2d 1195 (8th Cir. 1987).

The same issue was raised in Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991). We affirmed the Court of Appeals decision in that case but pointed out that there was no due process issue with respect to the manner in which facts were ascertained because there was no disagreement between the Administrative Law Judge who heard the evidence and the Commission. We noted that if there had been a disagreement, and the question turned on credibility of witnesses seen and heard only by the Administrative Law Judge, a due process of Law issue might have been presented.

Ms. Penter’s petition for review in this case suggests there must have been a disagreement over credibility because the Administrative Law Judge believed her claim that she was unable to work during a certain time but the Commission obviously did not.

We find no dispute between the Administrative Law Judge and the Commission as to any fact. Ms. Penter’s claim of disability is the ultimate issue in the case, and there is evidence in the record to support, and evidence to dispute, her claim. The decision of the Commission did not turn on the credibility of a witness or witnesses but upon the weighing of medical opinion testimony.

Review denied.'


text:
    IN THE MATTER OF CONTEMPT OF Harrell A. SIMPSON, Jr.
    92-446
    832 S.W.2d 216
    Supreme Court of Arkansas
    Opinion delivered May 29, 1992

      JeffRosenzweig, for petitioner the Supreme Court Committee on Professional Conduct.

      Arnold, Grobmeyer & Haley, A Professional Association, by: Ben F. Arnold, for respondent Harrell A. Simpson, Jr.
   Per Curiam.

On April 14, 1992, the Supreme Court Committee on Professional Conduct (Committee) and its Executive Director, James A. Neal, through their attorney, petitioned this court for an appointment of a master to make findings of fact relating to charges that Harrell A. Simpson, Jr., an attorney whose license to practice law in Arkansas was suspended by the Committee on Professional Conduct on November 18,1991, has violated the Procedures of the Supreme Court Regulating Professional Conduct of Attorneys at Law (Procedures) in that he has failed to comply with Sections 7B and D of the Procedures. In essence, the charges are that he has continued to practice law during the period of suspension and has not complied with the procedures for the conduct of a suspended attorney, the allegations being set out specifically in the April 14, 1992, petition.

The Committee and its Executive Director ask this court to find Mr. Simpson in contempt, to assess appropriate punishment, and, further, to order Mr. Simpson to comply with the applicable Procedures and the Model Rules of Professional Conduct, including the requirement of immediate cessation of all activities that might reasonably be interpreted or construed as a practice of law.

On May 15, 1992, Harrell A. Simpson, Jr., through counsel, filed his response to the petition and admitted that Mr. Simpson is an attorney whose license to practice law in Arkansas was suspended by the Committee on November 18, 1991, and that this court has jurisdiction to hear and determine the matters alleged. He denies, however, that petitioners have probable cause to believe that he has violated any of the applicable procedures and that he is guilty of any misconduct amounting to an intentional disobeyance of any order of this court or of any committee appointed by this court.

For this reason, it is necessary for a hearing to be held to determine whether or not Mr. Simpson has violated any of the Procedures as alleged. We appoint the Honorable Darrell Hickman as Master to conduct the hearing.

Petitioners will have the burden of proving, by a preponderance of the evidence, the charges placed against the respondent, Harrell A. Simpson, Jr.; the Master shall conduct a hearing and make findings of fact as to each alleged violation of our rules and procedures with reference to the conduct of a suspended attorney.

Since the respondent has admitted that his license to practice law has been suspended, we order Mr. Simpson, if he is not currently doing so, to comply with the applicable Procedures, including, but not limited to, the requirement of the immediate cessation of all activities that might reasonably be interpreted or construed as the practice of law.

Upon receiving the findings of fact from the Master, we will make a decision as to whether or not Harrell A. Simpson, Jr., should be held in contempt of court.

Dudley and Brown, JJ., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Lois MONTGOMERY and Bill Montgomery v. Dr. R. C. BUTLER
    91-100
    834 S.W.2d 148
    Supreme Court of Arkansas
    Opinion delivered June 1, 1992

      Bramhall, Duncan, & Ohm, by: Phillip H. Duncan, for appellants.

      Mitchell, Williams, Selig & Tucker, by: Coleen M. Barger, for appellee.
   Jack Holt, Jr., Chief Justice.

This is an appeal from a jury verdict in favor of the appellee, Dr. R.C. Butler, on a claim of medical malpractice against him by the appellants, Lois and Bill Montgomery.

The underlying facts show that Mrs. Montgomery was referred to Dr. Butler, a gastroenterologist, by her famialy physician, Dr. Howard R. Harris, for tests and treatment of her complaints of recurrent stomach pains, nausea, and diarrhea, including evaluation for possible Crohn’s disease. In February 1987 Dr. Butler performed a colonoscopy, in which he found no evidence of Crohn’s disease, and instituted treatment for inflammatory bowel disease. In June 1987, Mrs. Montgomery entered Baptist Medical Center where another gastroenterologist referred by Dr. Harris, Dr. Bill Morton, performed tests that revealed the presence of Crohn’s disease.

Dr. Morton treated Mrs. Montgomery for six weeks, and she showed temporary signs of improvement. In late July 1987, however, her condition worsened, and she underwent surgery for the removal of a large portion of her small intestine.

The Montgomerys filed suit against Dr. Butler on the basis that he was negligent in not having diagnosed or treated Mrs. Montgomery for her Crohn’s disease. After trial, the jury returned a verdict in favor of Dr. Butler, and the Montgomerys now assert four points of error on appeal: 1) the trial court erred in failing to grant a mistrial when Dr. Butler presented inadmissible and prejudicial evidence to the jury, 2) the trial court abused its discretion in allowing certain surgeons to testify as experts on Dr. Butler’s behalf concerning the treatment of Crohn’s disease by medication as distinguished from treatment by surgery, 3) the trial court erred in allowing and condoning the use of the phrase “guilty of medical malpractice” to be stated as law before the jury, and 4) the trial court erred in unduly limiting their examination of witnesses.

Dr. Butler argues that the Montgomerys’ appendix is defective under Ark. Sup. Ct. R. 9 because they failed to include in their appendix the trial court’s final judgment, their motion for judgment notwithstanding the verdict or, in the alternative, for new trial, and their notice of appeal.

Rule (9) (d) at the time the Montgomerys filed their appendix provided in pertinent part:

(d) Appendix. — Following the argument portion of the appellant’s brief, the appellant shall include an appendix, consisting of those portions of the designated record . . . the appellant deems dispositive of or directly relevant to the issue or issues on appeal. . . . The appendix shall include, in the following order:
* * *
(ii) relevant pleadings;
* * *
(v) the verdict or findings of fact, conclusions of law and judgment or decree;
(vi) relevant post trial motions and orders;
* * *
(ix) the notice of appeal, as well as the petition for review if the case has been decided by the Arkansas Court of Appeals.
Failure to place a copy of a part of the record in the appendix will not preclude the court from referring to it, but the court will not consider itself obligated to go beyond reading the briefs and included or separate appendices to decide a case.

From examination of the Montgomerys’ appendix, it is obvious that they have failed to comply with Rule 9(d) by not including any pleadings, the verdict, notice of appeal, or any post-trial motions as required by the rule. The question then arises as to whether we can decide the points of error raised by the Montgomerys in their arguments by reading their briefs. The quick answer is that we find from a reading of the briefs and the appendices that sufficient material parts as are necessary for an understanding of the questions at issue have been presented to us, and we can and should render our decision on the merits. In doing so, we affirm. See generally Harrison Civil Serv. Comm’n v. Reid, 261 Ark. 42, 546 S.W.2d 413 (1977) (case decided under prior Rule 9; the abstract was not so deficient as to call for an affirmance under Rule 9(d)); Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972) (case decided under prior Rule 9; although not in compliance with Rule 9(d), the abstract was sufficient to determine the issue on appeal).

I. MISTRIAL

Initially, the Montgomerys contend that the trial court erred in failing to grant a mistrial when Dr. Butler presented inadmissible and prejudicial evidence to the jury. Specifically, the Montgomerys allude to Exhibit 11, which is not contained in the transcript, and to Court Exhibit 2, which is in the transcript but which is not part of their appendix or Dr. Butler’s supplemental abstract.

Arkansas Sup. Ct. R. 9(d) provided that the failure to place a copy of a part of the record in the appendix will not preclude the court from referring to it, but the court will not consider itself obligated to go beyond reading the briefs and included or separate appendices to decide a case. In examining the parties’ briefs and appendices, we find that the only reference to these materials that the Montgomerys claim is objectionable is their inclusion in their briefs of the following exchange between counsel and the trial judge in an in-chambers hearing:

MR. OHM: It was Defendant’s Exhibit 11, page 2 containing the reference to insurance at the bottom of the page, your Honor.
THE COURT: Yes, I see it. I was just trying to figure out what kind of document it is.
MR. BRAMHALL: This was one of Dr. Butler’s records. The only thing of significance on there is the. . . .
THE COURT: Is the name United Employers’ Federation?
MR. BRAMHALL: Yes, sir. Where it says “Insurance,” it is printed, “Insurance,” and then “United Employers’ Federation, Post Office Box, Searcy, Arkansas. Name of Policy Holder: Employers’ Group.”

As we do not have either Defendant’s Exhibit 11 or Court’s Exhibit 2 properly before us, we are unable to determine from this exchange the exact nature of the documents in question or their contents. Although we find, in examining the record, Court’s Exhibit 2, we are not obliged to consider it because we do not go to the record to reverse. Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984). Consequently, we are unable to decide this issue on the merits.

II. EXPERT TESTIMONY

Next, the Montgomerys argue that the trial court abused its discretion in allowing certain surgeons to testify as experts on Dr. Butler’s behalf concerning the treatment of Crohn’s disease by medication as distinguished from treatment by surgery.

With regard to the admissibility of expert testimony, we reiterated in Hardy v. Bates, 291 Ark. 606, 727 S.W.2d 373 (1987), that whether a witness may give expert testimony rests largely within the sound discretion of the trial court and that determination will not be reversed unless an abuse of discretion is found. Additionally, we have noted that expert testimony is admissible if it will aid the trier of fact in understanding the evidence or in determining a fact in issue. An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the ability of the trier to understand and draw its own conclusions. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Finally, we have consistently held that a jury is not bound to accept opinion testimony of experts as conclusive or to believe the testimony of experts any more than the testimony of other witnesses; the jury alone determines the weight to be given the evidence, and it may accept or reject all or any part of it that its members believe to be true. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

In this case,, the Montgomerys presented the expert testimony of Dr. Harris, a family practitioner, and Dr. Morton, a gastroenterologist, as to Mrs. Montgomery’s tests, treatments, diagnoses, and surgery. Dr. Butler presented the expert testimony of three witnesses: 1) Dr. Mark Gibbs, a surgeon specializing in the surgical treatment of Crohn’s disease who was trained to understand its pathophysiology, etiology, epidemiology, and medical treatment, 2) Dr. Everett Tucker, Jr., a surgeon, who was frequently called to see patients with Crohn’s disease, and 3) Dr. Ralph Ligón, a surgeon, who was familiar with the different types of medical regimens prescribed for patients with Crohn’s disease.

Simply put, the record reflects that the trial court was extremely evenhanded in qualifying both party’s witnesses as experts for the treatment of Crohn’s disease. All of the witnesses were qualified to discuss Crohn’s disease, their testimony aided the jury in understanding the evidence, and the jury was free to weigh the testimony based upon the particular qualifications of the individual doctor. Accordingly, the trial court did not abuse its discretion.

III. PHRASE “GUILTY OF MEDICAL MALPRACTICE”

In their third point of error, the Montgomerys claim that the trial court erred in allowing and condoning the use of the phrase “guilty of medical malpractice” to be stated as law before the jury. During the cross-examination of Dr. Harris by counsel for Dr. Butler, the following exchange occurred:

MR. BEARD: Does that mean that the aggressive doctors are guilty of medical malpractice, or the conservative doctors are guilty of malpractice?
MR. BRAMHALL: Your Honor, we object to the term, guilty of medical malpractice. The test in this case is whether the physician acted below the standard of care for his particular specialty in an area. There is nothing in the law in the case or anything else that says anything about somebody being guilty of malpractice.
MR. BEARD: AMI 1501 uses that specific language.
MR. BRAMHALL: Uses that phrase?
MR. BEARD: Yes. I’m sorry; AMI 1501 talks about guilty of medical malpractice, your Honor.
THE COURT: Overrule the objection.
MR. BEARD: Thank you.

AMI 1501 addresses negligence of a medical professional and provides as follows:

In [diagnosing the condition of] [treating] [operating upon] a patient, a [physician] [surgeon] [dentist] must possess, and, using his best judgment, apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same [type of practice] [specialty] in the locality in which he practices, or in a similar locality. A failure to meet this standard is negligence.

While it is clearly apparent that the instruction does not use the phrase “guilty of medical malpractice,” Dr. Butler’s counsel’s misstatement in this context is at most an abstract statement of counsel that was cured when the trial court properly instructed the jury at the conclusion of the trial as to the content of AMI 1501. See generally W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982) (it is the duty of the judge to instruct the jury, and each party to the proceeding has the right to have jury instructed upon the law of the case with clarity and in such a manner as to leave no ground for misrepresentation or mistake.) Furthermore, statements of counsel are not to be considered as evidence, and the trial court instructed the jury with AMI 101, which states, “You should not consider any rule of law with which you may be familiar unless it is included in my instructions. . . . You are to apply the law as contained in these instructions to the facts . . . .’’Asa result, we cannot say that this statement was prejudicial.

IV. LIMITATION OF WITNESSES

Finally, the Montgomerys assert that the trial court erred in unduly limiting their examination of witnesses. They specifically enumerate four instances that they claim to be error.

A. Impeachment and Cross-examination of Dr. Tucker

During cross-examination of Dr. Gibbs, counsel for the Montgomerys asked him about a letter he had written on February 27, 1989, and about a second letter report in which he had changed his opinion. Dr. Gibbs explained that he felt that he did not have all of the necessary information when he wrote the first letter and that he subsequently wrote a second letter explaining his position when he was made aware of the medical treatment rendered to Mrs. Montgomery by Dr. Morton.

Later, during the cross-examination of Dr. Tucker, counsel for the Montgomerys handed him a copy of Dr. Gibbs’s first letter and asked him about the letter’s stated opinion that if medical treatment had been instituted at an earlier date then Mrs. Montgomery’s condition would have been less severe and there would have been less removal of intestine. Dr. Butler’s counsel objected, which objection was sustained by the trial court unless the Montgomery’s counsel was willing to give Dr. Tucker both of Dr. Gibbs’s reports. Counsel for the Montgomerys consequently gave both reports to the witness without objecting to the trial court’s requirement.

Now, the Montgomerys argue that the trial court erred in requiring both reports to be used for cross-examination since the first report was used in an attempt to impeach or test the basis for the expert witness’ opinions. However, as the Montgomerys failed to make this objection at trial, they are now precluded from raising it for the first time on appeal. Stotts v. Johnson, 302 Ark. 439, 791 S.W.2d 351 (1990).

B. Trial Court’s Comment on Testimony

During Dr. Gibbs’s cross-examination by the Montgomerys’ counsel, Dr. Gibbs was questioned at length about his two letter reports and the reason for the change in his opinion. Dr. Gibbs stated that when he wrote his first letter that he had met with the Montgomerys’ counsel “in good faith” with the understanding that he had been provided with all of Mrs. Montgomery’s medical records. After a further lengthy period of cross-examination, Dr. Gibbs stated that he suspected that he had not been provided with the second page of Dr. Woodard’s report. At this point, the following exchange occurred between the trial court and Mrs. Montgomery’s counsel:

TRIAL COURT: If there’s some information missing the doctor should be able to say what it is; you should be able to get over this question.
MR. DUNCAN: Your Honor, he’s ....
TRIAL COURT: Y’all are just bantering back and forth with one another.
MR. DUNCAN: It’s a very important point, though. He’s at least, implying ....
TRIAL COURT: Well, I assume that I — we. . . .
MR. DUNCAN: . . . that we . . .
TRIAL COURT: I think we need to move on in this case . . .
MR. DUNCAN: Your Honor, your Honor . . .
TRIAL COURT: . . . somehow.
MR. DUNCAN: . . . I’m going to tie this up, but if I understand his testimony, he’s implying Mr. Bramhall and myself withheld that second page of that report from him.
TRIAL COURT: He’s not implying it. He said he didn’t have it and y’all didn’t furnish it to him. That’s not an implication. That’s what he states as a fact.
MR. DUNCAN: Okay . . .
TRIAL COURT: I didn’t misunderstand that.
MR. DUNCAN: . . . then I am going to probe into that, your Honor, because I don’t believe that he has the recall to be able to state that, and that’s what I’m doing right now.
TRIAL COURT: He doesn’t have the recall to state that.
MR. DUNCAN: Your Honor, we could have given him that report . . .
TRIAL COURT: Okay, argue . . .
MR. DUNCAN: We can’t be called as witnesses in our own case, and that’s the whole point.
TRIAL COURT: I didn’t figure you would . . .
MR. DUNCAN: We didn’t know . . .
TRIAL COURT: I apologize for interrupting. I didn’t want to take up any more time, so go ahead.
MR. DUNCAN: Okay.

(Emphasis added.)

Although the Montgomerys now claim that the emphasized language of the trial court was in fact a comment on the testimony, they again failed to make an objection during trial in order to preserve this issue for appeal. We therefore decline to discuss it. See Stotts v. Johnson, supra.

C. National Cooperative Crohn’s Disease Study

Next, the Montgomerys argue that the trial court erred in refusing to allow them the opportunity to question Dr. Gibbs about a study referred to as the National Cooperative Crohn’s Disease Study (NCCDS). During the cross-examination of Dr. Gibbs about the NCCDS, counsel for Dr. Butler objected on the grounds that the witness had not established the authoritativeness of the study and because opposing counsel wanted to read particular sentences from the lengthy study. The trial court sustained the objection because Dr. Gibbs had not acknowledged that the study was authoritative.

Counsel for the Montgomerys then immediately proceeded to ask Dr. Gibbs similar questions regarding the study to which he gave detailed answers. The Montgomerys’ counsel also utilized the NCCDS during their examination of Dr. Tucker, Dr. Ligón, and Dr. Butler; this extensive use of the NCCDS by the Montgomerys in their examination of Dr. Butler’s witnesses negates any claim that they were prejudiced by the trial court’s ruling.

D. Legal Standard

Finally, the Montgomerys claim that the trial court applied an incorrect legal standard regarding the form of the opinions expressed by their expert medical witness, Dr. Harris. The trial court sustained Dr. Butler’s objections to Dr. Harris’s testimony when he was unable to state that Mrs. Montgomery might or might not have had Crohn’s disease in January 1987 and that she might or might not have ultimately had surgery if steroid treatment had commenced earlier.

The Montgomerys’ counsel asked Dr. Harris on direct examination whether Mrs. Montgomery had Crohn’s disease in January 1987, to which Dr. Harris replied that “[s]he probably did.” Dr. Butler’s counsel objected on the ground that the question and the answer were not stated “to a reasonable degree of certainty or probability.” The trial court sustained the objection, and counsel for the Montgomerys did not object to the ruling. Instead, the Montgomerys’ counsel simply rephrased the question, and Dr. Butler’s counsel again raised the same objection.

The trial court stated, without objection by the Montgomerys’ counsel, “I would interpret the response ‘probable’ to be synonymous to ‘possible,’ and that’s the objectionable part of the doctor’s response . . . .” The Montgomerys’ counsel accepted the trial court’s statement and merely proceeded to ask the question as follows:

Q: Dr. Harris, within a reasonable degree of medical certainty, did Ms. Montgomery have or did she not have Crohn’s Disease in January of ‘87?
A: I can’t answer that absolute.
Q: We are not asking for an absolute answer. We are saying within a reasonable degree of medical certainty.
A: I still can’t answer it except possible or probably. In my opinion she had it, but possibly.

Dr. Harris’s final response came in without objection from Dr. Butler, and the Montgomerys’ counsel continued with other questions. Once again, the Montgomerys failed to object to this point of error and are consequently precluded from raising it on appeal. See Stotts v. Johnson, supra.

Accordingly, the judgment of the trial court is affirmed.


author: David Newbern, Justice.

text:
    Edgar BROWN v. STATE of Arkansas
    CR 92-531
    832 S.W.2d 477

    Supreme Court of Arkansas
    Opinion delivered June 1, 1992

      William C. McArthur, for appellant.

      Winston Bryant, Att’y Gen., Clementine Infante, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Edgar Brown, was convicted of three counts of aggravated robbery and two counts of theft of property. Brown waived his right to a jury trial and was sentenced to 25 years for the aggravated robbery of James Rodgers and a total of 20 years for the aggravated robbery and theft of property of Valerie Smith and Michael Arbanas. Brown’s only point of appeal is that the evidence was insufficient to support the convictions. We find the evidence was sufficient and affirm the convictions.

On June 13, 1990, at approximately 10:45 p.m. James Rodgers was leaving the El Rancho Club on Scott Street in Little Rock when a man came up to him and demanded his money. Rodgers refused, and the man shot him in the side. Rodgers told the police, and later testified at trial that the robber was approximately six feet tall, stocky build, short hair, had hair growth under his chin, and was a light complected black male. Rodgers testified that the robber wore shorts, tennis shoes, and a yellow tank top type shirt. He also described the robber’s gun as small, either a .25 or .22 caliber, silver automatic.

On the same night, at approximately 11:00 p.m., Valerie Smith and Michael Arbanas, who lived in separate apartments in the same building, were approached by a man as they were entering their apartment building at 411 West 16th Street, five blocks from the El Rancho Club. The robber demanded their wallets. Smith and Arbanas complied and the man ran away.

Smith described the man to the police and in her testimony at trial as a light complected black male, with a bad complexion, approximately five feet eleven inches tail and of stocky build. She described the clothes the robber wore as dark stretch shorts, and a light colored, tight fitting tee shirt. She said the gun was a small, silver automatic. Arbanas described the robber as a stockily built, black male, approximately six feet tall.

Arbanas testified the robber wore dark shorts, a gray colored tee shirt which could have been long, and a leather medallion. Arbanas also testified the gun the robber used was a small, silver automatic pistol.

Brown was arrested and charged with aggravated robbery and theft of property on September 13, 1990, after Smith, Arbanas, and Rodgers identified him as the man who robbed them on June 13th. The police were first alerted to Brown on September 9, 1990, when Smith and Arbanas saw Brown at the Waffle House on 9th Street. That evening Smith and Arbanas went to the Waffle House for dinner after work. Smith testified that the minute she saw Brown she told Arbanas that the man who had robbed them was sitting in a nearby booth. Arbanas testified he did not get a good look at Brown until later when he left the restaurant. Arbanas testified that as soon as he saw Brown walk and heard Brown speak he was sure Brown was the man who robbed him. Brown was also wearing a leather medallion which fit the description of the leather medallion worn by the robber. After Brown was arrested, Rodgers identified Brown from a photograph as the man who shot him in the robbery on June 13th. All three witnesses were certain of the accuracy of their identifications.

Brown claimed the three witnesses were mistaken in identifying him because Rodgers, Smith, and Arbanas described different types and color shirts worn by the robber. Brown testified he did not know where he was on the night of June 13th, but that he did not rob Rodgers, Smith, or Arbanas. Brown’s mother and father also testified on his behalf, but could not remember where he was on the night of June 13th.

Sufficiency

Brown moved for a directed verdict at the close of the State’s evidence and again at the close of the case, thus preserving for appeal the issue of sufficiency of the evidence. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).

When the sufficiency of the evidence is being challenged on appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990); Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991); Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990), cert. denied, 111 S.Ct. 1076 (1991). We affirm if there is substantial evidence to support the conviction. Williams v. State, supra; Dunlap v. State, supra.

When other evidence of guilt is strong, we affirm a conviction despite a description by a witness which proves to be inaccurate in some way. Coley v. State, supra. Unequivocal testimony identifying the appellant as the culprit is sufficient to sustain a conviction. Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990).

Rodgers positively identified Brown from a photograph and again at trial as the man who shot and attempted to rob him. Smith and Arbanas positively identified Brown on September 9th at the Waffle House and again at trial as the man who robbed them. Brown testified that he did not rob Rodgers, Smith, or Arbanas. The Trial Court was not persuaded by Brown’s testimony.

The credibility of witnesses is a fact question for the trier of fact. The trier of fact alone determines the weight to be given the evidence, and may reject or accept any part of it. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992); Hooks v. State, supra. Credibility determinations will not be disturbed on appeal when there is substantial evidence to support the fact finder’s conclusion. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).

Brown conceded that the physical descriptions given by the three witnesses were not inconsistent and that he fit their collective description in June 1990. Brown’s insufficiency contention is based on the inconsistency of the three witnesses with respect to the description of the shirt the robber wore. We hold the physical description of the robber given by the witnesses and the positive identification by Rodgers, Smith, and Arbanas of Brown as the man who robbed them on June 13th sufficient to support the conviction.

Affirmed.


author: Tom Glaze, Justice.

text:
    Aryan SLAY v. STATE of Arkansas
    91-338
    832 S.W.2d 217
    Supreme Court of Arkansas
    Opinion delivered June 1, 1992

      Lingle & Corley, by: James G. Lingle, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant brings this interlocutory appeal under Ark. Code Ann. § 9-27-318(h) (Supp. 1991) from the circuit court’s denial of his motion to transfer two criminal charges to juvenile court.

Appellant, who is hearing impaired, was charged with having committed three criminal offenses. He was fifteen years old when he allegedly committed rape on October 10, 1989, and was sixteen years old when he allegedly committed second degree assault on November 13, 1989, and a second count of rape on December 1,1989. On January 16,1990, the state filed a petition in juvenile court to have appellant adjudicated a delinquent, but the petition specifically related only the facts bearing on the second degree assault charge. On June 19, 1990, appellant was adjudicated a delinquent by the juvenile court, and that court placed him on probation for one year and ordered him to continue with counseling services.

On October 24, 1990, the state charged appellant in circuit court with the aforementioned rape counts, and appellant responded by moving to transfer these two offenses to the juvenile court that had ruled on appellant’s assault charge. On April 15, 1991, the circuit court held a hearing on appellant’s transfer motion, and later denied appellant’s motion on August 9,1991. In this appeal, appellant argues the trial court erred in refusing to transfer the two rape charges to juvenile court, and he also asserts the state is barred by res judicata and collateral estoppel from prosecuting appellant on these two offenses since the state should have pursued or filed those crimes against appellant before or at the time it filed its petition in juvenile court.

First, we dispose of appellant’s res judicata and collateral estoppel argument because appellant never obtained a ruling on this issue. Nor does appellant offer any authority under which this court can decide such an issue in an interlocutory appeal even if appellant had properly preserved it on appeal. Thus, the only issue before us is the lower court’s denial of appellant’s transfer motion, which we can consider by interlocutory appeal under § 9-27-318(h). Therefore, we turn to that matter as the sole issue in this appeal.

The circuit court, in making its decision on whether to transfer a case to juvenile court, must consider the following requirements: (1) the seriousness of the offense and whether violence was employed by the juvenile in the commission of the offense, (2) whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts, and (3) the prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation. Bright v. State, 307 Ark. 250, 819 S.W.2d 7 (1991); Ark. Code Ann. § 9-27-318(e) (Repl. 1991). We have said that a trial court is not required to give equal weight to each factor, nor is the prosecutor required to introduce proof against the juvenile with regard to each factor. Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). The standard of review in juvenile transfer cases is whether the trial judge’s finding is clearly against the preponderance of the evidence. Cobbins v. State, 306 Ark. 447, 816 S.W.2d 571 (1991).

In denying appellant’s transfer motion, the trial court found that (1) the appellant was charged with a very serious offense (rape) that involves violence, (2) he was confronted with two separate counts of rape against the same victim, a nineteen-year-old paraplegic female, and (3) he had been charged in juvenile court for aggressive and violent behavior, and other evidence was presented he committed acts of unwanted sexual indignities toward female students. The trial court conceded appellant had benefited from counseling he had received as a result of the juvenile court proceeding. However, the court further concluded that the appellant would be better handled in circuit court, considering the seriousness of the rape offenses and the repetitive pattern of the aggressive and violent behavior he displayed at school towards teachers and students, including unwanted sexual indignities to females. These acts occurred over an extended period of time, including before and after the dates of the alleged rapes and some occurred months after the state filed its delinquency petition. Clearly, the trial court gave considerable weight to the seriousness of the offenses with which appellant was charged and believed the offenses and appellant’s aberrant sexual behaviour outweighed any favorable prospects for his rehabilitation. We cannot say the trial court was clearly wrong. Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991).

In so holding, we find no merit in appellant’s additional argument that the state’s approximate one-year delay in filing charges in circuit court deprived appellant from receiving meaningful consideration in juvenile court. The trial court voiced concern that appellant could only benefit or be “somewhat rehabilitated” from supervised counseling over an “extended period of time,” but there is no indication the trial court would have transferred appellant’s charges to juvenile court merely if appellant had been one year younger. In fact, the contrary result is indicated. In reviewing the trial court’s findings, it is apparent the court, in making its decision, largely relied upon the serious nature of the offenses involved and appellant’s repetitive pattern in committing aggressive sexual acts.

We also find no merit in appellant’s other argument that, when the circuit court considered the seriousness of the offense and the violence employed by the juvenile in the commission of the offense mentioned in § 9-27-318(e)( 1), the court was required to find an element of violence that is separate from (or in addition to) the violence necessarily included when proving the offense of rape. The appellant cites Cobbins v. State, 306 Ark. 447, 816 S.W.2d 571, and suggests that, in addition to the charge of rape against the defendant, the court in Cobbins also considered the additional violence manifested by the defendant, showing he struck the victim three times on her head with a claw hammer. Our decision in Cobbins cannot be read to require that an added element of violence must be shown under § 9-27-318(e)(1), and we believe it would be a perverted interpretation to construe that provision in such a manner.

In sum, rape, as defined, is a violent offense, and such a charge is sufficient to meet the requirements set out in § 9-27-318(e)(1). See Ark. Code Ann. §§ 5-14-103(a) and 5-14-101(2) (1987). The state’s affidavit for the warrant of arrest, supporting the rape charges against appellant, alleges the appellant dumped the victim from her wheelchair, took off her clothes and forcibly performed sexual intercourse. Such allegations certainly satisfy the dictates of § 9-27-318(e)(1).

Because we find the trial court’s findings are not clearly erroneous, we affirm.


author: Robert L. Brown, Justice.

text:
    IN THE MATTER OF SUBPOENA OF James BADAMI
    91-259
    831 S.W.2d 905
    Supreme Court of Arkansas
    Opinion delivered June 1, 1992

      Winston Bryant, Att’y Gen., by: Sarah H. Harberg, Asst. Att’y Gen., for appellant.

      Mark Stodola, Prosecuting Att’y, by: Jack D. Ruple, Deputy Prosecuting Att’y, for appellee.
   Robert L. Brown, Justice.

James Badami, executive director of the Arkansas Judicial Discipline and Disability Commission, was served with a subpoena duces tecum from the Prosecuting Attorney for the Sixth Judicial District on February 1,1991. The subpoena was issued after an allegation was made to the prosecutor that a person at an official proceeding of the Commission committed perjury, a class C felony. Ark. Code Ann. § 5-53-102 (1987). The subpoena directed Badami to deliver a transcript of the sworn testimony to the prosecutor.

On February 11, 1991, Badami responded to the subpoena with a motion for a protective order pursuant to Ark. R. Civ. P. 26(c) and Ark. R. Crim. P. 19.4 and prayed that the subpoena be quashed. The motion was heard on March 29, 1991. At the hearing, Badami argued that the subpoena violated the confidentiality required of commission proceedings by both the General Assembly and Supreme Court Rules. See Ark. Const. Amend. 66; Ark. Code Ann. § 16-10-404(b)(1) (supp. 1991); In the Matter of Rules 7 and 9 of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, 302 Ark. 633, 790 S.W.2d 143 (1990). The prosecuting attorney countered that under Amendment 21 of the Arkansas Constitution and subsequent implementing legislation, he had the duty to investigate the alleged crime of perjury, using the subpoena power as an investigative tool. See Ark. Code Ann. § 16-43-212 (1987).

On June 6, 1991, the circuit court concluded that the prosecuting attorney’s argument was persuasive and denied Badami’s motion for a protective order. The court stayed its order pending an appeal to this court.

An order denying a protective order to quash a subpoena is not a final order for appeal purposes. See Ark. R. App. P. 2(a) (1992). Specifically, it is not a final judgment or order under Rule 2(a)(1); nor is it an order under Rule 2(a)(2) which determines the “action.” Serving a subpoena duces tecum on Badami did not constitute an action as the term is defined in legal practice. An “action” may be a civil complaint or a criminal prosecution and is defined as “a lawsuit brought in a court; a formal complaint within the jurisdiction of a court of law.” Black’s Law Dictionary, 6th ed., 28 (1990).

Moreover, because the circuit court’s order was stayed, this court does not know whether Badami will comply with the order, should it be affirmed, or not. In the event of affirmance, Badami could well refuse to release the transcript which could lead to a contempt citation and engender still another appeal to this court. The threat of multiple appeals is precisely what Rule 2 intends to avoid.

Though the parties to this appeal did not raise or argue the nonappealable order issue, the question of a final order is jurisdictional, and this court has a duty to raise the matter whether the parties do or not. Widmer v. Tonkey, 297 Ark. 85, 759 S.W.2d 562 (1988); Roy v. International Multifoods Corp., 268 Ark. 958, 597 S.W.2d 129 (1980).

Because the order is not final, this court lacks jurisdiction to hear the appeal, and we dismiss it.

Appeal dismissed.


author: Robert L. Brown, Justice. Robert H. Dudley, Justice,

text:
    James RUDOLPH and Marilyn Rudolph, as Next Friends of Molly Rudolph, a Minor, and Molly Rudolph v. Brandon Shane FLOYD and Arthur Floyd and Charlotte Floyd
    92-160
    832 S.W.2d 219
    Supreme Court of Arkansas
    Opinion delivered June 1, 1992

      Bramblett & Pratt, by: Eugene D. Bramblett, for appellants.

      Sanders, Hill, Frye & Mickel, by: William C. Frye, for appellee.
   Robert L. Brown, Justice.

This appeal comes to us from an order by the chancery court granting visitation to a paternal grandfather, after paternity was established, for a child born out of wedlock. The natural mother, Molly Rudolph, and the parents of the mother, James Rudolph and Marilyn Rudolph, appeal from the court’s order on the basis that applicable statutes do not authorize such visitations. We disagree and affirm the chancery court’s decision.

The facts are not in dispute. On August 28, 1990, Molly Rudolph, who was then a minor, gave birth to a daughter. Prior to the birth, on July 17, 1990, appellee Brandon Floyd, who had been told by Molly Rudolph that he was not the father, filed a paternity petition in chancery court, asserting that he was indeed the father of the unborn child and requesting custody of the child and, alternatively, visitation. Appellees Arthur Floyd and Charlotte Floyd, who are the parents of Brandon Floyd, joined in that petition and prayed that the court grant them grandparental rights and visitation rights.

On September 28, 1990, the chancery court heard the case and announced at the conclusion of the hearing that visitation of the grandparents is a “right recognized by the court” and that visitation by the father and grandfather would run concurrently. On December 17, 1990, the court entered an order establishing paternity in Brandon Floyd, awarding custody to Molly Rudolph, assessing child support against Brandon Floyd, and granting visitation rights to Arthur Floyd, as grandfather, to be exercised concurrently with Brandon Floyd until the child attained six years of age.

The Rudolphs raise as their sole point for reversal the absence of statutory authority to award visitation rights to grandparents for children born out of wedlock.

The issue of visitation rights and grandparents has been discussed comprehensively in Arkansas. See Drummer and Looney, Grandparent Rights in Custody, Adoption, and Visitation Cases, 39 Ark. L. Rev. 259 (1985). There, the authors wrote:

Grandparent rights, to the extent they may be said to exist, are derivative of their son’s or daughter’s parental rights. . . . Because a grandparent’s rights are only derivative, they may be contingent upon the establishment of paternity or maternity and are subject to divestment when parental rights are terminated. Grandparents, therefore, have a keen interest in most legal proceedings which affect their grandchildren.

39 Ark. L. Rev. at 261. In the case before us, paternity was established in Brandon Floyd by the chancery court, thus giving his father, Arthur Floyd, a legitimate interest in the child.

We have held that rights existing in grandparents must be derived from statutes or conferred by a court of competent jurisdiction pursuant to statutes. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981); Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981). Here, a court of competent jurisdiction has awarded visitation rights to the grandfather, and a statute specifically authorizes a chancery court to grant visitation after a paternity finding:

(a) Subsequent to the finding by the chancery court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support costs and attorneys’ fees, and directing payments through the clerk of the court.

Ark. Code Ann. § 9-10-109(a) (Supp. 1991). (Emphasis ours.) What the chancery court did in this case is precisely what § 9-10-109(a) contemplates. It awarded visitation rights to interested parties, that is, the father and grandfather, after paternity was established.

We are mindful of the argument raised by the Rudolphs that one statute conferring grandparent visitation rights was amended in 1987 to provide visitation “if the marital relationship between the parents of the child has been severed by either death, divorce or legal separation.” Ark. Code Ann. § 9-13-103(a)(1) (1987). That statute, however, does not purport to exclude grandparent visitation after a paternity finding, and, again, Ark. Code Ann. § 9-10-109 (a) (Supp. 1991) specifically provides for visitation grants after paternity is found.

In sum, where there is a statute providing for visitation after a paternity finding, and where a petition is filed by the grandfather requesting visitation, the chancery court operated well within its authority in granting visitation rights to the grandfather as well as the father. We hold that there was no abuse of discretion.

Affirmed.

Dudley and Hays, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The majority opinion holds that paternal grandparents are entitled to an order granting them visitation with their grandchild who was born out of wedlock. I dissent.

At common law a father did not have a right of visitation with his child born out of wedlock, and likewise the paternal grandparents had no such right. “[A]ny rights existing in grandparents must be derived from statutes. . . .” Cox v. Stayton, 273 Ark. 298, 304, 619 S.W.2d 617, 620 (1981). In 1979, by statute, the father of a child born out of wedlock was given the right of visitation, but that statute did not provide for a right of visitation by the grandparents. Ark. Code Ann. § 9-10-114 (Repl. 1991). Today, there is no statute giving grandparents of a child born out of wedlock a right of visitation. There are two sections of the statutes that pertain to this issue. The first section codifies the statutes under Title 9, Chapter 10, and styles them “Paternity.” The second group of statutes are codified under Title 9, Chapter 13, and are styled “Child Custody and Visitation.” Since the second chapter of statutes specifically deals with grandparent visitation, it will be discussed first.

Chapter 13 — Child Custody and Visitation Statutes

The history of the “grandparents visitation statute” is as follows. Section 1 of Act 320 of 1975, codified as Ark. Stat. Ann. § 34-1211.1 (Supp. 1983), provided that “in divorce or custody proceedings” the court could grant visitation rights to either the maternal or paternal grandparents. That act was amended by Act 403 of 1985, and was codified as Ark. Stat. Ann. § 34-1211.2 (Supp. 1985). Section 1 of that act provided that the court could grant a right of visitation to a grandparent “regardless of the marital status of the parents of the child or the relationship of the grandparents to the person having custody of the child.’’'’ This act gave grandparents, such as the ones now before us, the right to petition for and receive an award of visitation. However, this act was amended at the next session of the General Assembly. “The legislature was apparently concerned that such a liberal provision would bestow upon grandparents rights greater than those given parents. Parental prerogative could be continually challenged in court without adverse consequences to meddling grandparents.” Brummer & Looney, Grandparent Rights in Custody, Adoption, and Visitation Cases, 39 Ark. L. Rev. 259,273 (1985). By Act 17 of 1987, the General Assembly amended the “liberal provision.” The act contains an emergency clause which provides:

It is hereby found and determined by the General Assembly that Act 403 of 1985 was intended to apply only when the marital relationship between the parents and child has been severed by death, divorce or legal separation; that Act 403 contains langauge which may result in confusion regarding its applicability; that this Act eliminates that confusing langauge; and that this Act should be given immediate effect in order to prevent a misinterpretation of the law to the detriment of children. . . . [Emphasis added.]

The 1987 Act, which has not been amended, limits those grandparents who may be granted a right of visitation to situations where the “relationship between the parents of the child has been severed by death, divorce, or legal separation.” Ark. Code Ann. § 9-13-103 (Repl. 1991) (emphasis added). Thus, the specific statute governing visitation by grandparents does not provide for a right of visitation by grandparents of a child born out of wedlock. This should end this case. However, because the majority opinion holds there is another statute in the “paternity” section that gives grandparents the right of visitation with a child born out of wedlock, it is necessary to go further.

Chapter 10 — Paternity Statutes

The majority opinion states that a statute in Title 9, Chapter 10, governs visitation and allows visitation by grandparents of a child born out of wedlock. The history of the statute cited by the majority opinion, Ark. Code Ann. § 9-10-109 (Repl. 1991), conclusively shows that it is a statute dealing with the general subject of support of children born out of wedlock and in no way was intended to overrule the above quoted specific statutes on visitation. At common law the amount of child support could not be modified in cases in which the child was born out of wedlock. Thus, the General Assembly passed Act 71 of 1979. It provided: “Section 1. County Courts may at any time, enlarge, diminish or vacate any order or judgment awarding an allowance for child support in bastardy proceedings.” This statute was amended by Act 988 of 1985 to “Provide That Support Collection Techniques Mandated by P.L. 98-378 (Child Support Enforcement Amendments of 1984) be Available in Bastardy Actions; and for Other Purposes.” The statute relied upon in the majority opinion, Ark. Code Ann. § 9-10-109 (Repl. 1991), is a general statute dealing with child support and not visitation. It is titled “Child Support following finding of paternity.” The majority opinion quotes only a part of the statute, but it is so clearly a statute dealing with the general subject of child support that it is quoted in full:

(a) Subsequent to the finding by the chancery court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support costs and attorneys’ fees, and directing payments through the clerk of the court.
(b) (1) All orders directing payments through the registry of the court shall set forth a fee to be paid by the noncustodial parent or obligated spouse in the amount of one dollar ($1.00) for each payment or accumulation of payments received or an annual fee to be set by the court of not more than twenty-four dollars ($24.00) per year, but not both a fee per payment or payments and an annual fee.. If the court sets an annual fee, it shall be collected from the noncustodial parent or obligated spouse at the time of the first support payment and during the anniversary month of the entry of the order each year thereafter until no children remain minor and the support obligation is extinguished.
(2) The clerk, upon direction from the court and as an alternative to collecting the annual fee during the anniversary month each year after entry of the order, may prorate the first fee collected at the time of the first payment of support under the order to the number of months remaining in the calendar year and thereafter collect all fees as provided in this subsection during the month of January of each year.
(3) Payments made for this fee shall be made on an annual basis in the form of a check or money order payable to the clerk of the court or other such legal tender which the clerk may accept. This fee payment shall be separate and apart from the support payment, and under no circumstances shall the support payment be reduced to fulfill the payment of this fee.
(4) All moneys collected by the clerk as a fee as provided in this subsection shall be used by the clerk’s office to offset administrative costs as a result of this subchapter and to purchase, maintain, and operate an automated data system for use in administering the requirements of this subchapter. All fees collected under this subsection shall be paid into the county treasury to the credit of the fund to be known as the “Support Collection Costs Fund”. Moneys deposited in this fund shall be appropriated for the uses designated in this subdivision by the quorum court upon the request of the clerk of the court.
(c) The clerk of the court shall maintain accurate records of all support orders and payments under this section.
(d) The clerk may accept the support payment in any form of cash or commercial paper, including personal check, and may require that the custodial parent or nonobligated spouse be named as payee thereon.

Ark. Code Ann. § 9-10-109 (Repl. 1991).

Every reader of this opinion can see that the above statute is a statute generally involving child support. It does not specify who, or which party, shall have a right of visitation. The majority seizes upon the word “visitation” in subparagraph (a) and construes it to mean that visitation is provided for grandchildren born out of wedlock as though the parents had been married. Such is a contorted construction. The proper construction should be that the chancery court shall “follow the same guidelines, procedures, and requirements” in setting custody, visitation, and attorney fees as if it “were a case involving a child born of a marriage.” This part of the statute refers to the amount of support, the amount of attorney fees, and the times of visitation. It does not specify who, or which party, should be granted the right of visitation. This is confirmed by another statute set out only five statutes later, Ark. Code Ann. § 9-10-114. This later statute, which the majority opinion chooses to ignore, provides only for visitation by the father in the case of a child born out of wedlock. It provides: “When any chancery court in this state determines the paternity of a child and orders the father to make periodic payments for support of the child, the court may also grant reasonable visitation rights to the father and may issue such orders as may be necessary to enforce the visitation rights.” [Emphasis added.]

The majority opinion violates the rules of statutory construction to conclude that the child support statute, cited by the majority and quoted above, repeals the specific statutes on visitation. The statute that specifically provides for grandparent visitation, Ark. Code Ann. § 9-13-103 (Repl. 1991), is clear, as is the statute specifically providing for visitation in cases involving a child born out of wedlock. “In statutory construction where specific expressions conflict with general expressions, the rule is to give greater effect to the specific expression.” Valley Nat'l Bank v. Stroud, 289 Ark. 284, 286, 711 S.W.2d 785, 786 (1986). The statute providing for visitation in cases of children born out of wedlock states that the father may have visitation. The doctrine espressio unius est exclusio alterius, which means the expression of one thing is the exclusion of the other, applies. Finally, even if one thought that in someway the child support statute conflicted with the specific statutes on visitation, as the majority must, the later statute, the grandparent visitation statute, Ark. Code Ann. § 9-13-103 (Repl. 1991), enacted in 1987, must control. As originally set out, it is the statute that expressly rejected visitation for cases such as the one at bar.

It should be obvious to everyone reading the majority opinion and this dissent that the majority simply think that grandparents ought to have a right of visitation. Our cases give two straight answers to that thought. First, the statutes are clear, and “When a provision is left out of a statute, either by design or mistake of the Legislature, the courts have no power to supply it. To do so would be to legislate and not to construe.” Hodges v. Dawdy, 104 Ark. 583, 597, 149 S.W. 656, 661 (1912) (quoting Hobbs v. McClean, 117 U.S. 567 (1886)). Second, the General Assembly made a valid policy choice. Under the statute that it passed, young mothers who do not have money to contest court cases would not be subject to two suits for visitation. Under the precedent set by this case, those young mothers are now subject first to a suit by the father, and then, if the father loses, a second suit by the paternal grandparents. As a group, young mothers of children born out of wedlock ordinarily do not have the money to contest visitation cases. The General Assembly had a choice concerning suits against this group and made it. In addition, cases in which the parties are never married and a child is born, there is likely to be hostility, not only among the parents, but among the grandparents as well. Again, the General Assembly chose not to encourage that hostility, and the majority opinion goes directly against that policy. In a comparable case eleven years ago we wrote:

Such difficulties are unlikely when all those concerned remain on amicable terms with one another, but problems and tensions must be faced and resolved when bitterness arises, as here. It was unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring grandparents and other blood kin who are related to the child through the deceased parent. The final decision as to the state’s policy lay with the legislature, not with the courts. . . .

Wilson v. Wallace, 274 Ark. 48, 50, 622 S.W.2d 164, 166 (1981) (emphasis added). The power to make public policy should still be with the General Assembly. Accordingly, I dissent.

Hays, J., joins this dissent.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Charles B. MENARD v. CITY OF CARLISLE
    CR 91-282
    834 S.W.2d 632
    Supreme Court of Arkansas
    Opinion delivered June 8, 1992

      Berry & Mejia, by: Russell D. Berry, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

We affirm the judgment of conviction for driving while under the influence of intoxicants. The primary issue is whether A.R.E. Rule 615, the witness sequestration rule, is waived when counsel fails to ask for “the rule” before the testimony begins.

The State’s first witness in its case-in-chief had answered a few preliminary questions when appellant’s counsel asked for the rule. The city attorney objected and said it was “too late now.” The appellant’s attorney responded, “Why? I mean, the matter was not addressed before we began the trial of the matter.” Nothing more was said. The trial court, apparently relying on an interpretation of A.R.E. Rule 615 by the court of appeals in Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987), denied the motion and refused to exclude the other witnesses. The appellant made no arguments below about the validity of Dillard, but now on appeal argues that the case constitutes an erroneous interpretation of the rule and should be reversed. While the argument is valid, it was not raised below and we will not consider arguments for reversals which were not raised below. As we wrote in Fretwell v. State, 289 Ark. 91, 98, 708 S.W.2d 630, 634 (1986), “[I]t is our intention to require one who wishes to change the law to raise the matter in the trial court and give his adversary notice of the matter and an opportunity to make a timely record. To allow any other procedure would be to allow endless and untimely litigation.” We require that arguments to change the law be raised in the trial court even in capital cases, unless they involve a fundamental deprivation of the right to a fair trial. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 828 (1982). Thus, we do not consider overruling Dillard as a ground for reversal of appellant’s conviction.

Appellant alternatively argues that even if the interpretation of A.R.E. Rule 615 by the court of appeals in Dillard prevails in this case, the trial court abused its discretion in denying the motion. Again, the appellant did not suggest to the trial court that any type of weighing was necessary or that the ruling might constitute an abuse of discretion. Accordingly, we do not consider the argument.

Even though we hold that the trial court did not err on the points argued in this case, it would be misleading to leave standing the opinion in Dillard because it would only cause additional confusion and unnecessary appeals. Before the current Arkansas Rules of Evidence were adopted, we had two statutes providing for “the rule.” One statute governed civil trials and the other governed criminal trials. The civil statute provided the trial judge “may” exclude witnesses. We held that its application was discretionary with the trial judge. The criminal statute provided the trial judge “shall” exclude witnesses under the rule, and we held that it was error for a trial judge to refuse to exclude witnesses for the reason that the motion had not been made at the beginning of the trial. Vaughn v. State, 252 Ark. 505, 470 S.W.2d 873 (1972); Act 243: Exclusion of Witnesses in Criminal Actions, 9 Ark. L. Rev. 402 (1954-55). The present rule, A.R.E. Rule 615, is similar to the old criminal statute. It provides, in part: “At the request of a party the court shall order witnesses excluded. . . .” (Emphasis added.) We have said many times that by its clear language this rule is mandatory. See, e.g., Morton v. Wiley Grain & Chem. Co., 271 Ark. 319, 609 S.W.2d 322 (1980). However, while we have held that A.R.E. Rule615 is mandatory, we have not ruled on whether it must be requested before testimony commences.

“Rule 615 does not specifically require that the exclusionary request be made at any particular stage of the trial.” Wood v. Southwestern Bell Tel. Co., 637 F.2d 1188, 1194 (8th Cir. 1981). “It need not be demanded at the very opening of the testimony; at any time later, when the supposed exigency arises, the order may be requested.” 6 Wigmore on Evidence § 1840 (1976). “No time period is specified in which to make the request.” McCormick on Evidence § 50 (4th ed. 1991). The court of appeals, in making its holding to the contrary in Dillard, cited our case of Morton v. Wiley Grain & Chem. Co., 271 Ark. 319, 609 S.W.2d 322 (1980), as authority for the proposition that the trial court has “discretion to grant such a request after the trial has commenced.” We do not so understand our case. Accordingly, we overrule that part of Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987), that holds that the trial court has discretion to refuse to grant a request for the rule solely because the trial has commenced.

Appellant’s next assignment of error involves the trial court’s refusal to suppress evidence. Before discussion the various arguments under this point, it is necessary that we detail the facts surrounding the arrest. Todd Turner, a policeman for the City of Carlisle and a certified law enforcement officer, was on duty inside the city in his patrol car when a passing motorist stopped and told him that a newer model red Chevrolet pickup truck was being driven in an erratic manner on nearby Interstate 40. The motorist told Officer Turner that the truck had been driven onto the median to pass several cars and in doing so had run over some traffic control barrels. While Officer Turner was close to Interstate 40, he knew that location described was outside the City and in an unincorporated part of Lonoke County. By car radio he notified the city police dispatcher who in turn notified the Arkansas State Police and the Lonoke County Sheriff’s Department. Lonoke County Deputy Sheriff Jerry McClendon heard the radio messages and testified as follows:

Officer Turner advised his dispatcher — I could hear him on — we’ve got two different kind of radio. We’ve got what we call a low band and a high band. I heard him advise his dispatcher that someone had stopped in and told him there was a drunk traveling on the interstate passing in the median, hitting barrels, running cars off the road. His dispatcher got a hold of our dispatcher. I told them that I was aware of the traffic, and I advised Officer Turner to go out there and see if he could stop him because I was on Highway 31 North. I was north of Carlisle — not Carlisle, Lonoke. You know, it would take me a time to get down there. If he was driving the way he were saying, see if he could get him stopped for me.

The City of Carlisle previously had passed a resolution authorizing its officers to go out into the unincorporated part of Lonoke County for an emergency when requested to do so by the Lonoke County Sheriffs Office. The resolution provided that the Chief of Police “may” grant permission before the officers leave the city. The Chief gave permission to Officer Turner to respond to an emergency in the county if the Sheriffs Office should request emergency assistance. Officer Turner responded to this emergency in the County. He testified:

At approximately the 181 mile marker I run up on the vehicle that fit the description of the one that was given me of a red Chevrolet pickup, a newer model. I got in behind the vehicle to observe it. It struck two barrels while I was behind it, and it was weaving within that one construction lane quite a bit. I was hoping to be able to wait until I got out of the construction, but due to his erratic driving, I went ahead and stopped him about — I guess about 182 — I’m sorry, about 180, and went ahead and made the stop on him right there, because as bad as he was driving, that was too-dangerous to let him drive any further.

Appellant was driving the truck, and he was drunk. Officer Turner placed the appellant under arrest and held him for Deputy McClendon who arrived in a few minutes and took custody of the appellant. Deputy McClendon took the appellant to the police station in Carlisle, the nearest police station with a breathalyzer machine, to determine appellant’s blood alcohol content. Later, Officer Turner issued a citation to appellant to appear in the Municipal Court of Carlisle for the offense of driving while under the influence of intoxicants.

Appellant argues that the evidence of his driving and being under the influence should be suppressed for a number of reasons. He first argues that his extraterritorial arrest was illegal, and thus the evidence should be suppressed. The pertinent statute provides:

A certified law enforcement officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer’s presence or view, if the offense is a felony or a misdemeanor. A certified law enforcement officer making an arrest under this subsection shall, as soon as practicable after making the arrest, notify the law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate. Statewide arrest powers for certified law enforcement officers will only be in effect when the officer is working outside his jurisdiction at the request of or with the permission of the municipal or county law enforcement agency having jurisdiction in the locale where the officer is assisting or working by request. Any law enforcement agency exercising statewide arrest powers under this section must have a written policy on file regulating the actions of its employees relevant to law enforcement activities outside its jurisdiction.

Ark. Code Ann. § 16-81-106(c) (Supp. 1991).

Appellant argues that the arrest was not in compliance with the above statute because the misdemeanor was not committed in the officer’s presence. We summarily dispose of the argument. The officer received a report of a newer model red Chevrolet pickup truck being driven in an erratic manner. The officer went to the location and observed the truck being driven in such a hazardous manner that it was necessary to stop the truck at that very moment rather than wait for it to pass through the area of road construction. The officer stopped the truck, observed that appellant was drunk, and arrested him. The misdemeanor was committed in the officer’s presence.

Appellant also argues the statute was not complied with because the city resolution did not provide for statewide arrest authority. The short answer to this argument is that the statute does not require that the local government must make its officers travel statewide. There is no language in the statute that would prohibit limiting the officer’s official travel to a particular area of the state.

Appellant argues that Officer Turner did not have the permission of the Carlisle Chief of Police to go outside the city limits to make the arrest. The Chief of Police, Roy Skillern, testified that he had given his permission to Officer Turner to go into the county upon an emergency request by the Sheriff’s office.

Appellant argues that the evidence should be suppressed because the arresting officer did not notify the law enforcement agency having jurisdiction as soon as practicable after the arrest. The officer from the law enforcement agency having jurisdiction, Deputy Sheriff McClendon, arrived soon after the arresting officer, city officer Turner, made the arrest and the deputy sheriff immediately took custody of appellant.

Appellant additionally contends that the City lacked authority to prosecute appellant for an offense occurring outside the jurisdiction of the City, and therefore the trial court erred in refusing to suppress the evidence. No citation of authority, and no real argument is given for the proposition. It is not readily apparent to us why an erroneous police citation would invalidate a prior valid arrest. Assignments of error unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). In addition, the Municipal Court of Carlisle, the court in which appellant was charged, had county wide jurisdiction and the Circuit Court of Lonoke County, to which appellant appealed, had jurisdiction of the offense because it occurred in that county. Also, the Lonoke County Circuit Court afforded appellant a trial de novo. See Ashworth v. State, 306 Ark. 570, 816 S.W.2d 597 (1991).

Appellant’s next assignment of error is that the trial court erred in refusing to suppress the evidence of the breathalyzer test. The trial court did not rule on appellant’s motion, and the matter is therefore precluded from review. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). We are aware that appellant contends that the trial court did rule on the motion and cites us to a page in the record which, he contends, sets out the ruling. We have looked at the page cited by appellant, and it is true that the trial judge did mention suppressing the breathalyzer tests. However, from the context of the judge’s statement, it seems clear enough that the judge was not ruling on the merits of the motion. The judge made the statement after the appellant already had been found guilty.

Appellant’s final assignment is that the trial court erred in admitting State’s exhibit seven, the document showing his first conviction for driving while under the influence. The objection at trial, if indeed it was one, was “I have a little bit of a problem with exhibit number seven . . . this is a computer-generated document that is part of the recordkeeping process at Dumas as opposed to the docket showing the disposition of his case.” Appellant now argues that the document was inadmissible hearsay. The hearsay objection was not made below and therefore is not preserved for appeal. Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). In this assignment appellant also contends that he was improperly convicted of the second offense inasmuch as he was only charged with first offense driving while under the influence. However, this argument was not made in the trial court, and this court does not consider issues which are raised for the first time on appeal. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).

Affirmed.

Hays, Glaze, and Corbin, JJ., concur.

Tom Glaze, Justice,

concurring. The majority holds A.R.E. Rule 615, the witness sequestration rule, is mandatory if requested by a party at any stage of a trial. Such a decision is at odds with the court’s long line of cases that hold a defendant has the burden of actually demonstrating prejudice from an error. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987); Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Under today’s decision, this court must reverse a trial court’s refusal to invoke the rule even though a party strategically waits towards the end of trial to make his motion and would suffer no harm from the court’s denial.

For some reason, the majority opinion addresses the issue, “at what stage of the trial must a party request the rule?” No question, a party can ask to invoke the rule at any time. The issue is should the trial court have any discretion to decide a party is unentitled to the witness sequestration because counsel delayed in his or her request and no prejudice would result from denial of the request. Clearly, a party should have the opportunity to show how a denial of a belated request for the rule could prejudice the party’s case, but the trial court would then be placed in a position to exercise its discretion in making a decision, just like the trial court does regarding any other procedural or evidentiary question raised at trial. There is absolutely no reason to apply a different rule or standard when addressing Rule 615 issues.

The majority opinion alludes to Wood v. Southwestern Bell Tel. Co., 637 F.2d 1188 (8th Cir. 1981), for the proposition that Rule 615 does not specifically require the exclusionary request be made at any particular stage of the trial. Again, that is not the issue here since no one questions that a party may invoke the rule at any stage. The Wood case unequivocally supports my view of Rule 615, as the following passage from that opinion reveals:

It is clear from the wording of Rule 615 that generally the exclusion of witnesses so they cannot hear the testimony of other witnesses is required when requested by a party. United States v. Warren, 550 F.2d 219, 227 (5th Cir. 1977), rehearing denied, 559 F.2d 605 (5th Cir.), cert. denied, 434 U.S. 1016, 98 S.Ct. 735, 54 L.Ed.2d 762 (1978). Rule 615 does not specifically require that the exclusionary request be made at any particular stage of the trial.
We need not decide whether the exclusionary request made by appellant was erroneously denied, for the law requires that any such error must be one that is prejudicial to the party requesting exclusion. Otherwise, it will be considered harmless error. United States v. Warren, supra. The record does not reveal, and the appellant has been unable to show, that she was prejudiced by the ruling of the district judge. There has been no showing that the credibility or substance of any of the testimony from non-management employees was adversely affected. Nor can an inference of adverse effect be fairly drawn from the record. (Emphasis added.)

For the above reasons, I respectfully disagree with the majority court’s decision to require automatic reversal of the trial court’s refusal to invoke the witness sequestration rule and to overrule on this point the court of appeals’ holding in Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987).I otherwise agree with the result reached by the court.

Hays and Corbin, JJ., join this concurrence.