author: Annabelle Clinton Imber, Justice.

text:
    James E. McDONALD II, Joan Reid, and Janis Beall; and James E. McDonald II and Joan McDonald Reid, as Personal Representatives of James E. McDonald, Deceased v. Lamar PETTUS
    98-975
    988 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999

      Timothy O. Dudley, for appellants.

      Wright, Lindsey & Jennings, by: H. Keith Morrison and Robert W. George, for appellees.
   Annabelle Clinton Imber, Justice.

This is a legal-malpractice case. The appellants, the children of James E. McDonald and the personal representatives of his estate, contend that the trial court erred when it dismissed by summary judgment their legal-malpractice claims against the appellees, Lamar Pettus and the Pettus Law Firm. We affirm the dismissal of the claims brought by the children, and the tort claim brought by the personal representatives. However, we reverse and remand the dismissal of the breach-of-contract claim brought by the personal representatives on behalf of the decedent.

James E. McDonald and his wife, Georgia McDonald, jointly owned property located in Fayetteville. In the fall of 1990, the McDonalds hired Lamar Pettus and the Pettus law firm (hereinafter collectively referred to as “Mr. Pettus”) to prepare their wills. In his will, James gave his interest in the Fayetteville property to his children of a prior marriage, James E. McDonald, II, Joan Reid, and Janis Beall (the “children”). In contrast, Georgia did not specifically mention the Fayetteville property in her will.

In October of 1991, the McDonalds sold the Fayetteville property in exchange for promissory notes that were worth approximately $250,000. The McDonalds then hired Mr. Pettus to prepare codicils to their wills, which were executed on February 25, 1994. In his codicil, James left his interest in the promissory notes to his children. Again, Georgia did not specifically mention either the Fayetteville property or the promissory notes derived therefrom in her codicil. The dispute in this case centers upon whether James and Georgia McDonald hired Mr. Pettus to also prepare an assignment whereby Georgia would convey her interest in the promissory notes to either her husband, James McDonald, or directly to James’s children.

James died on April 16, 1994, before Georgia signed any assignment of her interest in the promissory notes. After her husband’s death, Georgia refused to relinquish her interest in the promissory notes to the children.

Soon thereafter, the children filed a legal-malpractice claim against Mr. Pettus. In their complaint, the children alleged that Mr. Pettus was “charged with the responsibility of preparing assignments” of the promissory notes and “overseeing the execution” of those assignments. The children contended that Mr. Pettus’s failure to discharge that responsibility was a tort and a breach of contract. The complaint was later amended to add as plaintiffs James E. McDonald, II, and Joan Reid, as personal representatives of their father’s estate, in addition to naming them as plaintiffs in their individual capacities as heirs.

The trial court dismissed, by summary judgment, the children’s individual claims against Mr. Pettus because “A.C.A 16-22-310 precludes the Defendants herein from liability for civil damages in this cause of action.” Then on April 24, 1998, the trial court entered a second order of summary judgment dismissing the remaining legal-malpractice claims asserted by the personal representatives of James McDonald’s estate. The trial court explained that summary judgment was proper because the personal representatives did not have standing to bring, on James McDonald’s behalf, a malpractice claim against Mr. Pettus, and even if they did, the facts taken as true did not “rise to the level of establishing malpractice on the part of the Defendant.”

On appeal, the children and the personal representatives of James McDonald’s estate contend that the trial court erred when it granted summary judgment as to each of their legal-malpractice claims against Mr. Pettus. In Hall v. Tucker, 336 Ark. 112, 983 S.W.2d 432 (1999), we recently summarized the major legal principles we use when reviewing the granting of a motion for a summary judgment as follows:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

See also Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (1999); Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). The deciding factor in this case is for whose benefit the malpractice claims were brought.

I. Claims Brought by the Children

First, the children contend that the trial court erred when it ruled in its first order of summary judgment that they did not have standing, on their own behalf, to bring a legal-malpractice claim against Mr. Pettus under the lawyer-immunity statute, Ark. Code Ann. § 16-22-310 (Repl. 1994). The Arkansas lawyer-immunity statute provides that:

(a) No person licensed to practice law in Arkansas and no partnership or corporation of Arkansas licensed attorneys or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by the person, partnership, or corporation, except for.
(1) Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations; or
(2) Other acts, omissions, decisions, or conduct if the person, partnership, or corporation was aware that a primary intent of the client was for the professional services to benefit or influence the particular person bringing the action. For the purposes of this subdivision, if the person, partnership, or corporation:
(A) Identifies in writing to the client those persons who are intended to rely on the services, and
(B) Sends a copy of the writing or similar statement to those persons identified in the ivriting or statement, then the person, partnership, or corporation or any of its employees, partners, members, officers, or shareholders may be held liable only to the persons intended to so rely, in addition to those persons in privity of contract with the person, partnership, or corporation.

(Emphasis added.)

A. The Privity Requirement

Our analysis begins with the basic premise of statutory construction that we construe the statute just as it reads giving the words their ordinary and usually accepted meaning in common language. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998); Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). The plain language of Ark. Code Ann. § 16-22-310 requires the plaintiff to have direct privity of contract with “the person, partnership, or corporation” he or she is suing for legal malpractice. Likewise, we have narrowly construed the privity requirement to require direct privity between the plaintiff and the attorney or entity to be held liable for legal malpractice. See Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996); Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). In particular, in Clark we said that “the language of this section [Ark. Code Ann. § 16-22-310(a)] is precise and clear and reveals that the contract contemplated by the statute relates to a contract for professional services performed by the attorney for the client.” Clark, supra (emphasis added).

1. Indirect Privity

It is undisputed that the children in this case did not have a contract for legal representation with Mr. Pettus. Hence, the trial court dismissed the children’s claims for lack of privity as required by section 16-22-310. On appeal, the children raise two arguments in an attempt to satisfy the privity requirement.

First, the children claim that they were in privity with the decedent, James McDonald, who in turn was in privity with Mr. Pettus. We find no basis for this argument of indirect privity in the plain language of the lawyer-immunity statute or in our cases interpreting the Act. Furthermore, the two Arkansas cases cited by the children are unpersuasive because both merely dealt with the issue of whether heirs are in privity with a decedent, and not with the second and more important issue of whether this connection is enough to create privity with the decedent’s attorney under the lawyer-immunity statute. See Hardie v. Estate of Davis, 312 Ark. 189, 848 S.W.2d 417 (1993); Brown v. Imboden, 28 Ark. App. 127, 771 S.W.2d 312 (1989). In fact, neither case even mentions the lawyer-immunity statute.

We are equally unpersuaded by the children’s citations to cases from other jurisdictions because Arkansas has a specific statute, which we have narrowly interpreted to require direct privity. How other jurisdictions have interpreted their immunity statutes that may or may not be similar to our statute is simply irrelevant. For these reasons, we reject the children’s indirectprivity argument and hold that under the lawyer-immunity statute, Ark. Code Ann. § 16-22-310, a plaintiff must be in direct privity with the attorney or entity being sued for legal malpractice.

2. Third-Party Beneficiaries

Next, the children argue that the trial court erred when it dismissed their legal-malpractice claim against Mr. Pettus because they have standing to bring the claim as intended third-party beneficiaries of the contract for legal representation between Mr. Pettus and James McDonald. Again, this argument is contrary to the plain language of the lawyer-immunity statute, Ark. Code Ann. § 16-22-310, which clearly requires direct privity between the client and the attorney or business entity being sued for legal malpractice.

Likewise, in Swink v. Ernst & Young, 322 Ark. 417, 908 S.W.2d 660 (1995), we held that an employee did not have standing as a third-party beneficiary to bring a malpractice claim against his employer’s accounting firm for injuries he allegedly suffered as a result of the accounting firm’s malpractice. Although Swink dealt with the accountant-immunity statute, Ark. Code Ann. § 16-114-302 (Supp. 1997), instead of the lawyer-immunity statute, Ark. Code Ann. § 16-22-310 (Repl. 1994), we hold that it is applicable to the case at hand because the language of the two acts is virtually identical. Consequently, we reject the children’s argument that they have standing, as third-party beneficiaries, to bring a legal-malpractice claim against Mr. Pettus under Ark. Code. Ann. § 16-22-310.

B. Exceptions to the Privity Requirement

This conclusion, however, does not end our analysis because the lawyer-immunity statute contains two exceptions to the privity requirement. First, no privity is required for “[a]cts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations.” Ark. Code Ann. § 16-22-310(a)(1). This section is clearly inapplicable because the children did not assert fraud or intentional misrepresentations in their original or amended complaints.

The second exception to the privity requirement provides that:

(2) Other acts, omissions, decisions, or conduct if the person, partnership, or corporation was aware that a primary intent of the client was for the professional services to benefit or influence the particular person bringing the action. For the purposes of this subdivision, if the person, partnership, or corporation:
(A) Identifies in writing to the client those persons who are intended to rely on the services, and
(B) Sends a copy of the writing or similar statement to those persons identified in the writing or statement, then the person, partnership, or corporation or any of its employees, partners, members, officers, or shareholders may be held Hable only to the persons intended to so rely, in addition to those persons in privity of contract with the person, partnership, or corporation.

Ark. Code Ann. § 16-22-310(a)(2) (emphasis added). Even if we were to assume that Mr. Pettus was “aware that a primary intent” of drafting the codicils was to “benefit or influence the” children, and that the codicil was a “writing to the client” identifying “those persons who are intended to rely on the services,” there is no evidence in the record that Mr. Pettus ever sent the codicil to the children as required by section 16-22-310 (a)(2)(B).

The children attempt to avoid this problem by arguing that it is inequitable and against public policy to allow an attorney to avoid liability by not sending notice of his duty to the intended beneficiaries. It, however, is well settled that the determination of public policy lies almost exclusively with the legislature, and the courts will not interfere with that determination in the absence of palpable error. Arthur v. Adams, 333 Ark. 53, 969 S.W.2d 598 (1998); Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976). The legislature has clearly spoken in section 16-22-310(a)(2) as to when and under what circumstances an intended beneficiary may bring a legal-malpractice claim. The children have simply failed to meet those statutory requirements.

Because the children have failed to satisfy the privity requirement or the exceptions contained in the lawyer-immunity statute, Ark. Code Ann. § 16-22-310, we affirm the trial court’s dismissal of the children’s malpractice claims against Mr. Pettus.

II. Claims Brought by the Personal Representatives

Next, the personal representatives of James McDonald’s estate contend that the trial court erred when it ruled in the second order of summary judgment that they did not have standing, under Ark. Code Ann. § 16-22-310, to bring a malpractice claim against Mr. Pettus. In contrast to the claims of the children, the personal representatives brought their tort and breach-of-contract claims on behalf of the decedent, James McDonald.

A. The Privity Requirement

As with the claims brought by the children, we must first decide if the personal representatives have satisfied the privity requirement contained in section 16-22-310. In their brief, the appellees contend that the personal representatives brought their tort and breach-of-contract claims on behalf of the estate, and not on behalf of the decedent. Admittedly, the appellants’s brief is somewhat unclear on this matter. However, during oral arguments the appellants clarified that the personal representatives were bringing the tort and breach-of-contract actions on behalf of the decedent, James McDonald, because the estate “stood in the shoes” of the decedent after his death. In other words, the estate became the decedent posthumously. In fact, during oral argument the appellees conceded that the estate would have every cause of action for negligence or breach of contract against Mr. Pettus that the decedent would have had.

In this case, there is no question that there was direct privity of contract between Mr. Pettus and the decedent, James McDonald. Because the estate is merely standing in Mr. McDonald’s shoes in order to bring the claim on his behalf, we hold that the privity requirement of section 16-22-310 has been satisfied. Inasmuch as there is no privity problem related to the claims brought by the personal representatives, we must now decide whether the estate, acting on behalf of Mr. McDonald, can bring a malpractice claim, based in tort or upon a breach of contract, after the decedent’s death.

B. The Tort Claim

The Arkansas survival statute, Ark. Code Ann. § 16-62-101 (1987), provides that a personal representative may bring a tort action on behalf of the decedent in the following instance:

(a) For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and the action may be brought by the person injured or, after his death, by his executor or administrator against the wrongdoer or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts.
(b) Nothing in subsection (a) of this section shall be so construed as to extend its provisions to actions of slander or libel.

(Emphasis added.)

It is well setded that a survival action is for the recovery of damages the decedent suffered prior to death, while a wrongful-death action is for the recovery of damages the heirs suffered as a result of the decedent’s death. See Hicks v. Missouri Pac. R.R. Co., 181 F. Supp. 648 (W.D. Ark. 1960); Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301 (1911); Southern Anthracite Coal Co. v. Hodge, 99 Ark. 302, 139 S.W. 292 (1911).

Furthermore, in Ellis v. Ellis, 315 Ark. 475, 868 S.W.2d 83 (1994), we explained that “survival claims ‘seek compensation for injuries sustained by the decedent himself prior to death.’ ” (quoting First Commercial Bank, N.A. Little Rock v. United States, 727 F. Supp. 1300 (W.D. Ark. 1990)) (emphasis added). This is logical because tort claims are for injuries to the person, which obviously could not occur after death.

In the case before us today, it is clear that the decedent, James McDonald, did not suffer any injuries or damages prior to his death, as required for tort actions brought pursuant to the survival statute, because the will could not have possibly taken effect until after his death. Hence, although there was privity between the decedent, James McDonald, and Mr. Pettus, the personal representatives’ tort claim under the survival statute must nonetheless fail because James McDonald did not have a viable malpractice claim (due to the lack of a pre-death injury) against Mr. Pettus that survived his death. Thus, the trial court properly dismissed the personal representatives’s tort claim against Mr. Pettus. Because we have concluded that the personal representatives’s tort claim fails as a matter of law, it is unnecessary for us to address the appellees’ arguments that there were no genuine issues of material fact as to proximate cause and duty.

C. The Breach^of-Contract Claim

We, however, conclude that the breach-of-contract claim is notably distinguishable from the tort claim brought by the personal representatives. In particular, the survival statute provides that by virtue of the Act, tort claims survive “in the same manner and with the like effect in all respects as actions founded on contracts.” Ark. Code Ann. § 16-62-101(a) (1987). Hence, a breach-of-contract action continues to exist beyond the decedent’s death under common law, and does not depend upon the survival statute for its continued existence.

Likewise, section 28-49-104 (1987) of the probate code provides that a personal representative, administrator, or executor of an estate may pursue a legal action in the following instances:

(a) When it appears to be for the best interest of the estate or in the case of an action for wrongful death or for the best interest of the estate or widow and next of kin, the personal representative, upon the authorization of or approval by the court, may effect a compromise settlement of any claim, debt, or obligation due or owing to the estate, whether arising in contract or tort, or he may extend, renew, or in any manner modify the terms of any obligation owing to the estate.
(b) If the personal representative holds a mortgage, pledge, or other hen upon property of another person, he may, in lieu of foreclosure, accept a conveyance or transfer of the encumbered assets from the owner thereof in satisfaction of the indebtedness secured by the hen; if it appears for the best interest of the estate and if the court shall so order.

(Emphasis added.)

From the plain language of this section of the probate code and our supporting case law, it is clear that a representative, administrator, or executor of an estate may bring a tort, contract, or property-recovery action after the decedent’s death. See, e.g., Sanders v. Ryles, 318 Ark. 418, 885 S.W.2d 888 (1994) (the personal representative of the estate brought a quiet-tide action to enforce the decedent’s rights to redeem real property subject to foreclosure); Boling v. Gibson, 266 Ark. 310, 584 S.W.2d. 14 (1979) (special administrator brought an action in chancery court to determine ownership of certificates of deposit issued in the name of the decedent and his two sons); Brickey v. Lacy, 245 Ark. 860, 435 S.W.2d 443 (1968) (the administrator of the estate brought an unlawful-detainer action against a tenant for an alleged breach of a lease agreement between the decedent and a tenant). Furthermore, other jurisdictions have recognized that the rights and liabilities under a contract, including rights under a contract requiring personal skill, pass by operation of law to the executor or administrator of a deceased person. 31 Am. Jur. 2d Executors and Administrators § 507 (1989) (citing Pollard v. United States, 384 F. Supp. 304 (M.D. Ala. 1974); Burka v. Patrick 366 A.2d 1070 (Md. App. 1976)).

Unlike a tort claim brought under the survival statute, a breach-of-contract claim brought under the probate code does not require either a pre-death breach or pre-death damages. Hence, the personal representatives may bring on the decedent’s behalf a breach-of-contract claim even though the breach and the resulting damages did not occur until after the decedent’s death. If we held otherwise, a promissor would no longer be obligated to perform under a contract after the promissee’s death. Likewise, attorneys would be immunized from all malpractice claims arising from will preparations because the heirs would not have standing to bring the claim, and the personal representatives could not bring the claim on the decedent’s behalf because there would have been no pre-death breach or injury. Neither the language of the lawyer-immunity statute nor the probate code indicates that the General Assembly intended such a harsh result.

For these reasons, we hold that under the probate code the personal representatives may bring on behalf of the decedent a breach-of-contract claim. Consequently, we hold that the trial court erred when it dismissed, by summary judgment, the breach-of-contract claim the personal representatives brought on behalf of the decedent.

Furthermore, we acknowledge that summary judgment was erroneous as to the personal representatives’ breach-of-contract claim because there were material factual disputes as to whether Mr. Pettus agreed to prepare any assignments and present them to Georgia McDonald for execution, and if so, whether the assignments were to provide for Georgia McDonald to assign her interest to her husband, James McDonald, or directly to the children. Likewise, whether Georgia McDonald would have executed any assignments presented to her before the decedent’s death is also a disputed factual issue. These are all relevant questions as to whether a contract to prepare the assignments existed, whether it was breached, whether Mr. McDonald suffered any injury due to the alleged breach, and whether the damages are speculative.

For the foregoing reasons, we affirm the dismissal of the claims brought by the children, and the tort claim brought by the personal representatives. However, we reverse and remand the dismissal of the breach-of-contract claim brought by the personal representatives on behalf of the decedent.

Affirmed in part and reversed and remanded in part.

Arnold, C.J., not participating.

       The lawyer-immunity statute is also codified at Ark. Code Ann. § 16-114-303 (Supp. 1997).

       The accountant-immunity statute, Ark. Code. Ann. § 16-114-302 (Supp. 1997) provides that:
      No person, partnership, or corporation licensed or authorized to practice under the Public Accountancy Act of 1975, § 17-12-101 et seq., or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by such person, partnership, or corporation, except for:
      (1) Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations; or
      (2) Other acts, omissions, decisions, or conduct if the person, partnership, or corporation was aware that a primary intent of the client was for the professional services to benefit or influence the particular person bringing the action. For the purposes of this subdivision, if the person, partnership, or corporation:

        (A) Identifies in writing to the client those persons who are intended to rely on the services, and
      (B) Sends a copy of the writing or similar statement to those persons identified in the writing or statement, then the person, partnership, or corporation or any of its employees, partners, members, officers, or shareholders may be held liable only to the persons intended to so rely, in addition to those persons in privity of contract with such person, partnership, or corporation.
      The accountant-immunity statute is also codified at Ark. Code Ann. § 17-12-702 (Repl. 1995).

       We recognize that the appellants did not raise this particular argument on appeal. The appellants, however, did raise the argument before the trial court, and we have said on several occasions that we will affirm a trial court’s ruling if it is correct for a different reason. See Howard v. The Dallas Morning News, Inc., 324 Ark. 91, 918 S.W.2d 178 (1996); Higginbotham v. Waugh, 313 Ark. 558, 856 S.W.2d 7 (1993). Thus, we will consider this argument only to determine if it is an alternative basis for affirming the trial court’s ruling that the personal representatives did not have standing to bring the legal-malpractice claim on behalf of the decedent. For the reasons explained herein, we do not think that the survival statute is a basis for affirming the trial court’s ruling.

       Of course, tort claims also have to comply with the requirements of the survival statute, Ark. Code Ann. § 16-62-101 (1987), or the wrongful-death statute, Ark. Code Ann. § 16-16-102 (1987). As already explained, the personal representatives in this case could not bring a tort action under the survival statute because the decedent did not suffer any harm prior to his death.


source: Caselaw Access Project

author: Ray Thornton, Justice. Lavenski R. Smith, Justice,

license: Public Domain

text:
    Doyle MASSONGILL v. COUNTY OF SCOTT, Arkansas, et al.

    98-807
    991 S.W.2d 105
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999
    [Petition for rehearing denied May 13, 1999.]

      Oscar Stilley, for appellant.

      Bethell, Callaway, Robertson, Beasley & Cowan, PLLC, by: John R. Beasley, for appellees.
   Ray Thornton, Justice.

Appellant Doyle Massongill brings this second appeal from his 1995 complaint filed against Scott County, the county judge, and the members of the Quorum Court alleging illegal exaction and challenging the validity of two statutes: Ordinance 92-3, which provided for a solid-waste collection and disposal fee, and Ordinance 96-3, which provided Quorum Court members with health insurance benefits as additional compensation for their duties as justices of the peace. On first appeal to this court, we held that Ordinance 96-3 and its precursor, Ordinance 95-3, were invalid as providing additional compensation to quorum court members in violation of Ark. Code Ann. § 14-14-1205(c) (Supp. 1995), and wrote: “Because we conclude Ordinance 96-3 is illegal as contrary to § 14-14-1205(c) and to the meaning of § 1 of Amendment 55, we reverse and remand this cause with directions to enjoin the Scott County Quorum Court from paying health insurance benefits and order such payments to be repaid. Because the chancellor upheld 96-3, the parties were precluded from addressing any refund payments, we remand with directions that they be allowed to do so in a manner consistent with this opinion.” Massongill v. County of Scott, 329 Ark. 98, 947 S.W.2d 749 (1997) (hereinafter Massongill I).

On remand, appellant filed a motion for summary judgment asking that the court order repayment of amounts previously paid for health insurance for the quorum court members from 1984 through 1996. Appellant contends that these figures were agreed to by appellees prior to the first appeal as the appropriate amounts to be repaid by each member. The trial court granted appellant’s motion for summary judgment on October 8, 1997. New counsel for appellees entered an appearance on October 13, 1997, and requested that the court set aside his grant of summary judgment and allow appellees additional time to respond to the motion. The trial court then set aside its order of summary judgment in favor of appellant and set the case for a hearing to address the affirmative defenses to the refund of payments made on behalf of the quorum court members raised by appellees. Following the hearing, the trial court ruled that although the equitable defenses asserted by appellees were not proven, the quorum court members need not repay the health insurance premiums on the basis of legislative immunity. Appellant brings this second appeal from that ruling, contending that legislative immunity is inapplicable to the facts of this case. We agree and reverse on that point, while affirming appellees’ cross-appeal. Review of this case necessarily requires that we address a misunderstanding of our ruling in the first appeal that will require remand to the trial court to address the proper amount of refund to be made by appellees.

Appellant’s first point on appeal concerns the court’s decision to set aside the order of summary judgment it had entered ordering appellees to repay insurance benefits. We hold that the trial court correctly set aside its order granting appellant’s motion for summary judgment, on the grounds that to have done so was contrary to our ruling for remand in Massongill I. Specifically, we held that, “Because the chancellor upheld 96-3, the parties were precluded from addressing any refund payments, we remand with directions that they be allowed to do so in a manner consistent with this opinion.” Massongill I, supra. This would necessarily include permitting appellees the opportunity to assert any defenses to repayment they might be able to prove. The defenses which their original answer put forth included immunity, justification, mootness, limitation and laches, waiver, unjust enrichment and detrimental reliance. Some of these defenses raised factual issues inappropriate for resolution on summary judgment. Therefore, to carry out our mandate, it was necessary that the summary judgment be set aside and the defenses requiring evidentiary proceedings be addressed. It is well settled that on remand the trial court is bound by the judgment or decree and must carry it into execution according to the mandate. Nash v. Estate of Swaffar, 335 Ark. 235, 983 S.W.2d 942 (1999); Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998); Bussell v. Georgia-Pacific Corp., 64 Ark. App. 194, 981 S.W.2d 98 (1998).

Appellant’s second point on appeal concerns the trial court’s application of legislative immunity. Appellant contends the trial court erred when it ruled that appellees were not required to repay to the county insurance premiums they received unlawfully because their acts were legitimate legislative acts. Legislative immunity is a long-recognized principle in American law that legislators are absolutely immune from personal liability for their official and legislative activities. Tenny v. Brandhove, 341 U.S. 367 (1950).

We have in the past recognized the evident tension between the State’s sovereign immunity and the constitutional right of the people to contest an illegal exaction. Carson v. Weiss, 333 Ark. 561, 972 S.W.2d 933 (1998). We resolved that conflict in favor of the people’s ability to recover funds wrongfully expended. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). The case of Weeks v. Texarkana, 50 Ark. 81 (1887), is instructive. There, city council members attempted to vary by ordinance the salary of the elected city recorder during his term of office contrary to statute. The recorder, Weeks, was also a member of the city council. We held:

Consequently the ordinance of April 6, 1883, which fixed the recorder’s salary at fifty dollars a month was inoperative until the end of the term for which the plaintiff had been elected. But the court below seems to have considered that the town having voluntarily paid Week’s [sic] this salary, under no misapprehension of facts, could not recover it back. However true this may be as a general proposition, it ought not to be extended to cases where the officer so wrongfully receiving payment was a member of the council or board which ordered such payment. This would enable every municipal body to evade the salutary restraints imposed by the statute. They might vote themselves extravagant salaries after their induction into office and when they had once received the money, might set the municipality at defiance.

Weeks v. Texarkana, 50 Ark. at 84 (1887).

We hold that legislative immunity is inapplicable as a defense to repayment where the illegal exaction itself inured to the personal benefit of the officials by way of compensation. Recovery is permitted from the quorum court members not as result of their legislative actions but because they were recipients of benefits found to be unlawfully paid. Legislative immunity would, for example, protect the members for the passing of the ordinance in the first place. It cannot, however, serve to insulate them from the repayment of monies on their behalf and for their benefit, regardless of the good faith of their actions.

This case is not about the good faith of the quorum members. We do not question whether they acted in good faith in passing the ordinance at issue or in accepting the benefits received by the county. The simple fact is that monies were paid for insurance premiums to their benefit in accordance with City Ordinances 96-3 and 95-3 which were not authorized by the then existing state law. Our Constitution gives the people the right to seek recovery of such monies. As we have previously stated, “[I]t is the law of this State that the chancery court has jurisdiction to order repayment of an illegal exaction even where the ‘exaction’ is in good faith and has been approved by the county court.” Munson v. Abbolt, 269 Ark. 441, 602 S.W.2d 649 (1980). Recovery is permitted from the quorum court members not as a result of their legislative actions but because they were recipients of benefits found to be unlawfully paid. No action would be against them personally had they received no personal benefit from expenditure of county funds. Accordingly, we hold that the trial court erred in applying legislative immunity and reverse that ruling.

Appellant’s third point on appeal concerns the trial court’s refusal to recuse based on the showing that appellees’ attorney served as the judge’s campaign treasurer in an election campaign. The trial judge stated, in response to appellant’s motion for recusal, that the relationship did not put him in a position where he could not give appellant a fair trial. There is a duty not to recuse where no prejudice exists. U.S. Term Limits, Inc., v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994). The decision to disqualify is within the trial court’s discretion, and we will not reverse the exercise of that discretion without a showing of abuse. An abuse of discretion can be shown by proving bias or prejudice. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). Appellant here has shown neither bias nor prejudice, and we affirm the trial court’s decision on this point. However, because we are reversing and remanding on other grounds, we note the potential for the appearance of impropriety in the relationship between the trial judge and appellees’ counsel.

Cross-Appeal

Appellees filed a cross-appeal and assert three points as error. The first contends that the trial court erred in denying their assertion of the affirmative defense of equitable laches. We disagree and affirm the trial court’s decision to not permit the appeEees to assert laches on the instant facts. Laches is a weE-established equitable doctrine that operates to bar an action by a party who has “sat on his rights,” i.e., purposely or negligently faEed to assert a claim for so long that to permit it now would disadvantage prejudiciaEy an opposing party. Anadarko Petroleum Co. v. Venable, 312 Ark. 330, 850 S.W.2d 302 (1993). AppeEees have not demonstrated that laches should apply. AppeEants filed their action within the apphcable three-year statute of limitations. We find no error in the court’s rufing that for them to do so constituted an unreasonable delay as contemplated by the defense of laches.

Appellees also contend that the trial judge should have granted them relief under the equitable defenses of detrimental reliance, unjust enrichment, and offset. They cite the cases Matindale v. Honey, 261 Ark. 708, 551 S.W.2d 202 (1977), and Starnes v. Stadler, 237 Ark. 325, 372 S.W.2d 585 (1963), as authority for the premise that there is no recovery in absence of fraud or unjust enrichment to the state. Appellees have not demonstrated that these cases are applicable to a case of illegal exaction not involving dual office holders. The holdings in Tedford v. Mears, 258 Ark. 450, 526 S.W.2d 1 (1975), and Mackey v. McDonald, 255 Ark. 978, 504 S.W.2d 726 (1974), are more on point.

Appellees’ final contention is that appellant’s abstract was so deficient as to warrant summary dismissal of his appeal. We have stated many times that a flagrantly deficient abstract will result in dismissal. Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998). However, the deficiencies must be substantial and make it impossible for the court to fairly and thoroughly review the case. While appellant’s abstract is not exemplary, it is adequate.

Lastly, we note that our holding in Massongill I was that Ordinance 95-3, as amended by 96-3, and referred to as Ordinance 96-3 in the text of the opinion, was illegal as contrary to Ark. Code Ann. § 14-14-1205(c) and section 1 of Amendment 55, and we ordered that payments made on behalf of the quorum court members pursuant to those two ordinances were to be repaid. Under our earlier holding, appellees are liable only for the repayment of monies expended on their behalf under the authority of those statutes in 1995 and 1996. In the previous appeal to this court, appellant argued that Ordinance 96-3 was invalid. We noted that Ordinance 96-3 encompassed Ordinance 95-3 and held that expenditures for health insurance made pursuant to those ordinances were illegal and must be repaid. We did not specifically address the issue whether any predecessor statute to Ordinance 95-3 was covered by our decision in Massongill I. An earlier statute, Ordinance No. 84-15, provided generally for the purchase of group insurance for all county employees. During the first trial, appellant did not seek to overturn this ordinance, but argued that it did not cover the purchase of insurance for quorum court members. The trial court did not specifically address the validity of Ordinance 84-15. On appeal, appellant made no argument that Ordinance 84-15 was invalid, but only that it was misapplied. Appellant argued that Ordinances 95-3 and 96-3 were invalid, and the validity of those two statutes were the only issues addressed by the court in Massongill I. We are unwilling, at this stage in the proceedings, to open up the earlier proceedings to address the issue of the validity of Ordinance 84-15. The doctrine of law of the case prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless there is a material variance in the evidence before the court in each appeal. The application of the doctrine is not limited to issues raised in prior appeals, as it was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a continuing single lawsuit. Miller County v. Opportunities, Inc., 334 Ark. 88, 971 S.W.2d 781 (1998)(citing Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994)). As we explained in Earney v. Sharp, 312 Ark. 9, 846 S.W.2d 649 (1993):

Whatever was before this Court, and is disposed of, is considered as finally setded. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court, even where there is an error apparent; or in any manner intermeddle with it further to execute the mandate, and setde such matters as have been remanded, not adjudicated by the Supreme Court.

Id. We further note that, had that not been our express holding in Massongill I, appellant is nonetheless limited to recovery for payments made within the applicable three-year statute of limitations, not for all payments made since 1984 as he now contends.

In conclusion, we reverse the trial court’s ruling that legislative immunity bars recovery of the insurance premiums paid on behalf of quorum court members, and affirm the trial court’s ruling that none of the asserted equitable defenses were established. We therefore remand this case to the trial court with orders to determine the amounts to be refunded based upon payments made by the county on behalf of the quorum court members pursuant to Ordinances 95-3 and 96-3 in 1995 and 1996 and to direct payment firom the members in accordance with these findings. We also remand for determination of reasonable attorney’s fees for appellant.

Affirmed in part; reversed and remanded in part.

Glaze, Imber, and Smith, JJ., concurring in part; dissenting in part.

Lavenski R. Smith, Justice,

concurring in part; dissenting in part. I agree with the majority decision and opinion in all points save one. The majority holds that our decision in Massongill I limits appellees repayment liability to monies expended on their behalf in 1995 and 1996. The majority thus reverses the trial court ruling that a three-year statute of limitations applied. With this, I cannot agree. There are two serious problems with this holding.

First, it sua sponte raises and resolves an issue on appeal not addressed by the parties. This Court has long held that issues raised for the first time on appeal will not be considered. Furman v. Holloway, 312 Ark. 378, 383, 849 S.W.2d 520, 523 (1993); Burke v. Strange, 335 Ark. 328, 983 S.W.2d 389 (1998). With the notable exception of matters involving subject-matter jurisdiction, we scrupulously adhere to that rule even where the issue is a matter of constitutional magnitude. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998). For reasons the Court couches in terms of law of the case it reverses based on an unappealed trial court ruling. The majority is clearly wrong.

Second, this holding strains logic. It states that Massongill I invalidated ordinance 96-3 and its predecessor 95-3 but not an earlier ordinance No. 84-15, which had authorized premium payments for all county employees. Under that ordinance, the subject quorum court members unlawfully, albeit in good faith, were paid insurance premium benefits as though they were general employees of the county. After the practice was called into question, the quorum court passed ordinance 95-3, which summarily approved the past practice and prospectively authorized it for the future by stating, in its Section 2:

The Quorum Court believes a precedent has been set, and deems it necessary to continue health insurance coverage for elected constitutional officers, Quorum Court members and county employees.

This language did not begin the practice of paying insurance benefits for Quorum members but merely acknowledged it. Rather than limiting liability to years including and after its enactment, it could just as readily be interpreted as extending liability backward to the 1985 ordinance. The Majority’s opinion has the effect of reducing the amount of potential repayment liability for each quorum court member — a positive end, in and of itself, given the absence of bad faith on the part of the officials, but it does so at a very high price.

I, therefore, respectfully dissent.

Glaze and Imber, JJ., join.


author: Lavenski R. Smith, Justice.

text:
    Karriem MUHAMMAD v. STATE of Arkansas
    CR 99-31
    988 S.W.2d 17
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999

      Neil & Goodson, by: John C. Goodson, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

This is a search and seizure case. It concerns the appropriateness of a police “pat-down” search of a driver stopped for a traffic violation who, though only given a warning citation, consents to the search of his vehicle. Appellant, Karriem Muhammad (“Muhammad”), appeals the denial of his motion to suppress evidence. Muhammad entered a conditional guilty plea to cocaine charges stemming from discovery of the controlled substance on his person as a result of the “pat-down” search. Muhammad contends that the trial court should have excluded evidence of the controlled substance because the police had no authority to perform the search in that there was no reasonable, articulable suspicion of criminal activity. We disagree and affirm.

Pacts

On March 21, 1996, Arkansas State Trooper Jeffrey L. Thomas (“Thomas”) stopped Muhammad’s vehicle on Interstate 30 outside of Texarkana heading east towards Little Rock. Thomas initiated the stop after observing Muhammad following an eighteen-wheel tractor-trailer rig too closely. At the suppression hearing, Thomas testified that Muhammad, dressed in slacks and a loose pullover knit shirt, was “nervous,” “his lips were trembling,” and he stood and sat very erect throughout the encounter. Thomas initially questioned Muhammad about where he was traveling, and Muhammad answered that he was going to Little Rock for his father’s birthday. Thomas asked how old his father was, and Muhammad apparently was unable to give an exact age, although he responded that his father was “sixty something.” Pursuant to standard police procedure, Thomas ran a check through the National Crime Information Computer (“NCIC”) and the Interstate Identification Index on Muhammad’s license and discovered that Muhammad was a convicted felon currently on parole. Muhammad’s prior felonies included convictions for aggravated robbery and possession of illegal drugs.

After Thomas ran the search, he decided to give Muhammad a warning citation instead of a ticket. Thereafter, Thomas asked Muhammad to get into his cruiser to avoid the road noise and requested permission to search Muhammad’s car. Thomas presented Muhammad with a consent form to complete to allow the search. Muhammad signed the form, thus giving his permission for the search. At the suppression hearing, Thomas testified that he based his decision to search the car on Muhammad’s nervousness and his prior criminal history. Thomas specifically noted, however, that he did not have probable cause to search Muhammad’s car, but that he thought he might find illegal drugs in the car. Thomas then called for back-up so that another Trooper would be present while he conducted the search.

While waiting for the back-up unit, Thomas directed Muhammad to step out of and to the front of Thomas’s cruiser, and assume the position to be frisk-searched. Muhammad did so, and Thomas began a “pat-down” search of Muhammad’s outer clothing. Upon reaching Muhammad’s belt-line, Thomas felt the corner of some object which Thomas believed to be a firearm. Muhammad attempted to remove Thomas’s hand from the object, and Thomas then ordered Muhammad to place his hands behind his head. Thomas retrieved the object, which appeared to be a brick of compressed material wrapped in duct tape. Later examination determined it to be illegal drugs. Thomas found no weapon.

On December 18, 1996, Muhammad filed a Motion to Suppress the evidence obtained in the “pat-down” search, contending that the search was unlawful. Miller County Circuit Court held a suppression hearing on September 9, 1997. Officer Thomas was the sole witness. At the conclusion of the hearing, the circuit judge denied Muhammad’s motion to suppress, and Muhammad subsequently entered a conditional guilty plea pending the outcome of his appeal of the denial of his motion to suppress. The trial court entered a judgment and commitment order on September 15, 1997, sentencing Muhammad to forty years in prison, finding him guilty of manufacture, delivery and possession of a controlled substance. Muhammad appealed to the Arkansas Court of Appeals on October 15, 1997, and the appellate court affirmed the trial court’s denial of the motion to suppress in an opinion on December 23, 1998. Thereafter, Muhammad petitioned this Court for review of the Court of Appeals’ decision. We granted review. In his petition, Muhammad specifically argues that the Court of Appeals’ decision is contrary to that court’s and the Arkansas Supreme Court’s prior decisions regarding “pat-down” searches during traffic stops.

Standard of Review

On a Petition for Review, this Court reviews the case as if the appeal had originally been filed in this Court. State v. Brunson, 327 Ark. 567, 570, 940 S.W.2d 440 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). On review of a trial court’s denial of a motion to suppress, this Court makes an independent examination based on the totality of the circumstances, and will reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 71, 954 S.W.2d 209 (1997). In making that decision, the Court reviews the evidence in the light most favorable to the State. Id.

In his Petition for Review, Muhammad asserts that the Court of Appeals disregarded both its own and our holdings in Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998), Frette v. State, 58 Ark. App. 81, 947 S.W.2d 15 (1997), and Brunson v. State, 54 Ark. App. 248, 925 S.W.2d 434 (1996). It should be noted that both Brunson and Frette, which were reversed and remanded by the Court of Appeals, were reversed again by this Court upon the State’s Petitions for Review, and the trial courts’ decisions reinstated. As such, Muhammad’s reliance on the holdings of those Court of Appeals decisions is misplaced.

This case involves the interaction of a few basic facts with several of our Arkansas Rules of Criminal Procedure, Arkansas case law and United States Supreme Court cases regarding the Fourth Amendment’s protections against unlawful searches. There is no dispute in this case about the State Trooper’s justification for pulling Muhammad over for following the tractor-trailer rig too closely. Clearly, Thomas had the authority to do so. See, Burris, supra, and Whren v. United States, 116 S.Ct. 1769 (1996). The crucial issue is whether, after Thomas issued the warning ticket, he had a sufficient basis to conduct the “pat-down” search consistent with the Fourth Amendment.

The Fourth Amendment of the United States Constitution guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” U.S. Const. amend. 4. This is a fundamental and precious right that the courts must protect. However, as the United States Supreme Court has indicated, this provision does not forbid all searches and seizures, but only “unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 9 (1968), quoting Elkins v. United States, 364 U.S. 206, 222 (1960). In Terry, a police officer was patrolling downtown Cleveland, Ohio, when he came upon three men'standing on a street corner. The officer testified that he watched the men for some time, and found their actions suspicious. As such, he approached the men on the street and began questioning them. When his inquiries were met with mumbled responses, the officer quickly spun Terry around and began a “pat-down” search of Terry’s outside clothing, finding a revolver in a pocket. Ultimately, the officer found another gun on another man’s person. He arrested the men after taking them to the station.

In analyzing the search in which the officer initially had no probable cause to arrest the defendants, the United States Supreme Court noted that “a search of weapons in the absence of probable cause to arrest, however, must, like any other search, be stricdy circumscribed by the exigencies which justify its initiation.” Terry, supra, 392 U.S. at 25-26. In making this statement, the Supreme Court upheld the lawfulness of the search based on the need to allow an officer to search a person if the officer reasonably fears that the suspect is armed and dangerous, and such a search is necessary to protect himself and others. The standard used to determine reasonableness in such a situation is “whether a reasonable prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id., 392 U.S. at 27. In making such a determination, the Terry court noted that “specific reasonable inferences” drawn from the facts in light of the officer’s experience may be used; however, “inchoate and unparticularized suspicion or ‘hunch’ ” will not suffice. Id.

Since Terry, the Arkansas Legislature has enacted statutes and this Court has promulgated rules enforcing Terry’s teachings to create a working web of flexible responses for stop and search situations in this state. The starting point for this analysis is two Arkansas Rules of Criminal Procedure, Rule 3.1 and Rule 3.4. Rule 3.1 details two situations when a police officer may stop and detain a person who he “reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property. . . ,” In connection with Rule 3.1, Rule 3.4 allows that officer to conduct a search of the detained person’s outside clothing, a “pat-down” search, for “any weapon or other dangerous thing which may be used against the officer or others.” Such a search may only be conducted if the officer “reasonably suspects that the person is armed and presently dangerous to the officer or others.” Ark. R. Crim. P. 3.4. “Reasonable suspicion” is defined in Rule 2.1 as:

[A] suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

Ark. R. Crim. P. 2.1; See also, Ark. Code Ann. § 16-81-202 (1987). The Arkansas Legislature has codified factors to be considered when determining whether an officer has grounds to “reasonably suspect” a person who has been detained pursuant to Rule 3.1. These grounds include, but are not limited to, the following:

(1) The demeanor of the suspect;
(2) The gait and manner of the suspect;
(3) Any knowledge the officer may have of the suspect’s background or character;
(4) Whether the suspect is carrying anything, and what he is carrying;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors;
(6) The time of the day or night the suspect is observed;
(7) Any overheard conversation of the suspect;
(8) The particular streets and areas involved;
(9) Any information received from third persons, whether they are known or unknown;
(10) Whether the suspect is consorting with others whose conduct is “reasonably suspect”;
(11) The suspect’s proximity to known criminal conduct;
(12) Incidence of crime in the immediate neighborhood;
(13) The suspect’s apparent effort to conceal an article;
(14) Apparent effort of the suspect to avoid identification or confrontation by the police.

Ark. Code Ann. § 16-81-203 (1987).

It should first be noted that a search under Rule 3.4 cannot be lawfully undertaken unless justification for detaining the suspect exists under Rule 3.1. In part, Muhammad argues that after he was given a warning citation, the reason for the stop ended and, unless another situation arose under Rule 3.1, he should have been allowed to leave. Instead, Thomas asked to search his car, and Muhammad agreed, thus extending the amount of time he was allowed to be lawfully detained by his own permission. Had Muhammad refused to allow the search of the car, he should have been released since Thomas himself admitted he did not have probable cause to search. However, to Muhammad’s own detriment, he extended the stop by authorizing the search. See, U.S. v. Beatty, 1999 WL 124071 (8th Cir. 1999).

Once Muhammad gave Thomas consent to search his automobile, the attendant circumstances changed significantly. Most notably, the officer’s concern for his physical safety justifiably rose as he prepared to devote his attention to the search of the vehicle and not to the suspect’s conduct. Thomas’s concern for his safety was evident from his testimony at the hearing. In particular, Thomas testified to the following:

Prosecutor: In regard to your NCIC Triple I — that Triple I, is that interstate identification index, is that what that is?
Thomas: Yes, it is.
Prosecutor: In regard to that did you ever receive a response?
Thomas: Yes, I did.
Prosecutor: Who did that response come from?
Thomas: Yes, I received a positive response from the terminal via the radio dispatcher at Hope headquarters a positive acknowledgment that there was a history that existed.
Prosecutor: They apprised you of this history?
Thomas: Yes, they did.
Prosecutor: You were advised of what?
Thomas: I was advised by the dispatcher a previous sale or possession of dangerous drug, arrest, and also at least one arrest of aggravated robbery.
***
Prosecutor: On this date when you got ready to search Mr. Muhammad’s vehicle were you attended by other officers, or who was there with you and Mr. Muhammad?
Thomas: At the time I was going to search the vehicle there was no one there but Mr. Muhammad and I.
Prosecutor: What happened next?
Thomas: O.k., I called for another officer to come to the scene to back me up while I did the search of the vehicle. O.k., while waiting for this officer to arrive I asked Mr. Muhammad to step back out of my unit. We walked over to the right front fender of my unit and for my safety and for the things that I had gotten back on the positive response, being a previous drug conviction, an aggravated robbery conviction, and from the nervousness that he was displaying to me I asked Mr. Muhammad to put his hands on the hood of my cruiser and to spread his legs back and I began to pat him down for a weapon.
***
Defense Counsel: Really, you were looking for weapons, is that right?
Thomas: That is correct.
Defense Counsel: Didn’t think you were going to find any
drugs on him, did you?
Thomas: Not on his person.
Defense Counsel: Did you suspect that the person would be armed?
Thomas: Yes, based on the information that I had I highly suspected that he may be armed.
***
Thomas: My search was based on the information that was available to me by his demeanor and the pat down was conducted solely for officer’s safety a the point I began to pat down.

Rule 3.4 requires that Thomas reasonably suspect that Muhammad was armed, and that he was “presently dangerous” to Thomas or others. Given the officer’s knowledge of appellant’s criminal record which included aggravated robbery and illegal drug charges, appellant’s persistent nervousness, and manner of dress, it was reasonable to “Terry-frisk” Muhammad for safety reasons.

In Stewart, supra, the case Muhammad claims the Court of Appeals incorrecdy ignored, a police officer approached the appellant who was standing on a street corner at 1:45 a.m. in a high-crime area. The officer asked the appellant to remove her hands from her coat pocket, but the appellant placed her hands in her pockets several times. The officer then performed a “pat-down” search and found drugs in appellant’s pockets. This Court, upon appellant’s petition for review from the Court of Appeals’ affirmation of the trial court’s denial to suppress the evidence, reversed and remanded finding that the officer had no reasonable suspicion to stop and question appellant under Rule 3.2 or Rule 2.2. While these rules are not the rules used by Thomas to justify, the search in the present case, Muhammad apparently relies on Stewart’s holding for the proposition that once Thomas issued the warning citation for the traffic offense, he no longer had any right to request to search Muhammad’s vehicle nor any right to perform a “pat-down” search because the reason for the initial stop had ended. Neither we nor the United States Supreme Court have ever held that probable cause or reasonable suspicion is necessary in order for an officer to request consent for a search. Appellant gave consent for the search, thus authorizing his further detention.

This Court’s decision in Shaver v. State, 332 Ark. 13, 963 S.W.2d 598 (1998), is more on point, however. In Shaver, the appellant was a passenger in another man’s car, and they were speeding. When they were pulled over, the officers noticed leather straps in the car next to the appellant, who had a tee-shirt on his lap. When the officers questioned the driver about the existence of weapons in the car, the driver verified that the appellant had two guns. The officers then proceeded to frisk the appellant, finding instead bags of illegal drugs in his pockets. In upholding the search and the admission of the contraband drugs, this Court found that the drugs were admissible because the officers had a justifiable fear of danger based on the knowledge of the guns already found and based on the fact that appellant had a “big bulge” in one of his pockets.

In Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997), we upheld a denial of a motion to suppress where a police officer lawfully pulled over Burris for a traffic violation, and the officer ultimately discovered drugs and a weapon in the car. Burris was pulled over by a police officer because his trailer’s license plate could not be read, and he had a brake light out. The officer testified that upon questioning Burris, Burris seemed unusually nervous and he would not make eye contact. Upon running a routine search of Burris’s license, the officer learned that Burris had previously been arrested for weapons and drug charges, and convicted of a misdemeanor drug charge. Despite this information, Burris denied ever being arrested for anything other than speeding. The officer testified that he then became concerned for his safety and asked Burris whether he had any weapons. Burris first denied this, but then told the officer that he had a gun in the front of the car. Upon retrieving the gun, the officer arrested Burris and then conducted a search of the car, finding illegal drugs. On appeal, Burris contended that the officer arrested him and searched him merely because he had a criminal record in violation of Ark. Code Ann. § 16-81-201(1) (1987) which specifically precludes an officer from stopping and searching a passerby merely because he has a criminal record. We disregarded this argument because Burris’s car was searched only after he admitted having a weapon in the car, and the search occurred after Burris was arrested.

In conclusion, we hold that the trooper Thomas’s search of appellant after appellant’s consent to a vehicle search was reasonable given the totality of the circumstances, which included the changed nature of the stop once a search was authorized, appellant’s persistent nervousness, unusual posture, manner of dress, and criminal record that included illegal narcotics and aggravated robbery.

Affirmed.

       The foil text of Rule 3.1 appears as follows:
      RULE 3.1. Stopping and Detention of Person: Time Limit.
      A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

       The full text of Rule 3.4 appears as follows:
      RULE 3.4. Search for Weapons.
      If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.


author: Per Curiam.

text:
    James Wesley BILYEU v. STATE of Arkansas
    CR 98-1480
    987 S.W.2d 277
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999
    Q. Byrum Hurst, Jr., for appellant.

      Mark Prior, Att’y Gen., by: O. Milton Fine II, Ass’t Att’y Gen., for appellee.
   Per Curiam.

James Wesley Bilyeu was found guilty in 1996 of second-degree murder and sentenced to thirty years’ imprisonment. A fine of $15,000 was also imposed. The court of appeals affirmed. Bilyeu v. State, CACR 97-505 (February 4, 1998).

Bilyeu subsequently filed in the trial court a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petition was denied without a hearing, and the appeal of that order has been lodged here. The appellee now seeks by motion to remand the matter to the trial court for written findings of fact. The appellant agrees that written findings should have been entered but contends that any order from this court should also include instructions to hold an evidentiary hearing.

The order entered in the trial court was devoid of the written findings required by Rule 37.3(a). The order in its entirety reads:

Now on this 26th day of May, 98, the court upon consideration of the petition for postconviction relief filed herein by the defendant should be and hereby is denied and dismissed.

While we have affirmed the denial of Rule 37 petitions notwithstanding the trial court’s failure to make written findings as required by Rule 37.3(a), we have done so only where it can be determined from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Long v. State, 294 Ark. 362, 742 S.W.2d 942 (1988), citing Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979); Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). Here, there are allegations contained in the petition for postconviction relief which are supported by assertions of fact which preclude summary dismissal of the petition. Accordingly, we grant the appellee’s motion to remand the matter to the trial court for written findings. We leave the decision of whether the allegations warrant an evidentiary hearing to the trial court which has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court’s findings without a hearing. See LunaHolbird v. State, 315 Ark. 735, 871 S.W.2d 328 (1994).

Motion granted.


text:
    Ross DUNCAN v. STATE of Arkansas
    CR 97-1060
    987 S.W.2d 721
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999

      Craig Lambert, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Per Curiam.

In 1988, the appellant, Ross Duncan, was convicted of possession of a controlled substance with intent to deliver and was sentenced to a term of forty years’ imprisonment. At the time of Duncan’s conviction, inmates in the Department of Correction could earn “good time” credits that could be applied toward the reduction of their sentences. One form of good time credit was awarded automatically by the Department to prisoners who were classified into one of four categories. The other form of good time credit was discretionary meritorious good time, or “extra good, time,” which could be awarded if a prisoner, among other things, completed rehabilitative programs or performed special jobs. In 1993, however, the General Assembly passed Acts 536 and 558. Both of these acts, which became effective on January 1, 1994, repealed “extra good time.”

On December 6, 1996, Duncan filed a petition for declaratory judgment and a petition for writ of mandamus in the Circuit Court of Jefferson County. In the petition, Duncan asserted that he was entitled to “extra good time” that accrued since January 1, 1994, but that his requests to have the time applied toward his release date were denied by the Department of Correction. He requested that the Circuit Court, through the writ of mandamus, compel the Department of Correction to apply the accrued time toward the computation of his release date. The Circuit Court denied the petition. Duncan now appeals that order and contends that the retroactive application of Acts 536 and 558 of 1993 to inmates who were incarcerated prior to January 1, 1994, is unconstitutional because it violates the Ex Post Facto Clause. We find that our opinion in Ellis v. State, 333 Ark. 200, 968 S.W.2d 609 (1998), in which we held that the retroactive application of the 1993 acts does not violate the Ex Post Facto Clause is controlling. Accordingly, we affirm.

Article 1, § 10, of the United States Constitution provides that “(n)o state shall. . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. . . .” Article 2, § 17, of the Arkansas Constitution similarly provides, “No . . . ex post facto law . . . shall ever be passed. ...” A law is in violation of the Ex Post Facto Clause if it is retroactive and it disadvantages the accused by altering the definition of criminal conduct or by increasing the punishment for the crime. Calder v. Bull, 3 Dall. 386 (1798); Beazell v. Ohio, 269 U.S. 167 (1925). See also Collins v. Youngblood, 497 U.S. 37 (1990); Lynce v. Mathis, 519 U.S. 433 (1997).

On appeal, Duncan argues that the retroactive application of Acts 536 and 558 violates the prohibition against ex post facto legislation because it disadvantages him by denying him the opportunity to earn good time toward the reduction of his sentence. We were confronted with this precise issue in Ellis v. State, and we held that the Ex Post Facto Clause does not prohibit the retroactive application of a measure that disadvantages an accused by denying him only the opportunity to reduce his sentence.

In Ellis, we analyzed recent decisions by the United States Supreme Court and concluded that the Ex Post Facto Clause prohibits the retroactive application of legislative acts that disadvantage the accused in the form of altering the definition of criminal conduct or increasing the penalty by which a crime is punishable. We recognized that the decisions of the Supreme Court held that where meritorious good time is awarded automatically, the retroactive application of a statute that repealed that form of good time actually operated to increase an inmate’s sentence and, therefore, violated the Ex Post Facto Clause. We also concluded that where the award of good time is discretionary, as it is in the case of “extra good time,” the disadvantage suffered by the inmate is in the form of a lost opportunity to earn good time toward the reduction of his sentence. We held that such a disadvantage was not prohibited by the Ex Post Facto Clause. Therefore, the Circuit Court did not err when it denied Duncan’s petition for declaratory relief and his petition for a writ of mandamus.

Affirmed.


text:
    David Bruce JONES v. STATE of Arkansas
    CR 99-320
    988 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999

      Larry W. Horton, for appellant.
    No response.
   Per Curiam.

On March 12, 1999, the record was tendered to the clerk’s office for filing. It was not accepted because the time for filing had exceeded seven months from the date of judgment. Counsel for the appellant moved the Circuit Court of Hot Spring County, Arkansas, for additional time to lodge the transcript, and was granted additional time to March 16, 1999, to file the transcript. The record was again tendered to the clerk’s office on March 19, 1999, after the extended time for filing had lapsed.

The appellant has filed a motion for rule on the clerk to compel the clerk’s office to accept the record. In his motion, appellant states the reason the record was tendered late is that the Hot Spring County Circuit Clerk was unable to prepare the transcript in time for proper filing.

This court has held that it will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead implies the Hot Spring County Circuit Clerk failed to prepare the transcript for proper filing. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.


author: Tom Glaze, Justice.

text:
    Bobby Don HENRY v. STATE of Arkansas
    CR 98-569
    989 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered April 22, 1999
    [Petition for rehearing denied May 27, 1999.]

      Sexton & Fields, PLLC, by: Daniel Shue, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi Jr., Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Bobby Don Henry brings this appeal from his first-degree murder conviction for which he received a sentence of fife imprisonment. On December 15, 1996, Henry shot Larry Williams at Henry’s house while Henry’s wife, Regina, and son, Roman, were present. After the shooting, Regina and Roman ran to the neighbors’, Ava and Jim Snows’s, house, exclaiming that Henry had killed Williams. The Snows allowed Regina to make a 911 call; as a result, law officers came to the Henry house to investigate. Henry was subsequently arrested and charged with capital murder. Before and at trial, Henry raised insanity and self-defense claims, which the jury rejected upon finding Henry guilty of first-degree murder.

Henry first submits that the trial court erred when it allowed the State to introduce the entire 911 tape that contained Regina’s call following Henry’s shooting of Williams. At trial, Henry objected to the tape as being irrelevant, but, if relevant, argued the tape was more prejudicial than probative because Regina’s voice sounded “hysterical.” He argued prejudice resulted from the “method” (manner) Regina reiterated “things.” Henry also objected and moved for mistrial because the thirty-four-minute tape contained prejudicial remarks by other persons besides Regina. The prosecutor countered that the tape was relevant to show what Regina did, when she did it, how she did it, the time frame, where she went, and where the call was from. The trial court ruled the tape was relevant and was not more prejudicial than probative.

Without specifying which parts, Henry concedes on appeal that some of the tape was relevant, but directs his argument to the unfair prejudice he claims he suffered from the tape’s introduction. The remarks of Regina of which Henry complains are as follows:

1. Henry has “lots of guns in the house.”
2. Henry “has guns and we have guard dogs.”
3. “Yes, we have lots of weapons. He’s got — it’s a black gun and you pull the trigger, and it will shoot, like six . . . .”
4. “I don’t want to put these people’s fives in danger, sir.”
5. “Just make sure that these policemen know that he does have a lot of weapons.”
6. “He has the M16.”
7. “He has an SKS assault rifle.”
8. “I want [inaudible due to background conversations] something happen to me.”
9. “Do you think he’s crazy? He has to be. Someone just doesn’t do stuff like that.”
10. “But, he has more bullets. He was reloading as we left. He has got a houseful [inaudible because of background conversation].”
11. “I want you guys to be very careful. I’m telling you, he has probably 1,000 rounds of ammunition.”
12. “He’s got a lot of guns and a lot of ammunition.”

In addition to Regina’s foregoing remarks, Henry lists as prejudicial the following comments on the 911 tape attributed to other unidentified voices:

1. A male voice that dispatched “all units.”
2. An unidentified woman asking whether Henry was drinking and then advising, “don’t go in.”
3. Officer Huber commenting, “He’s got all kinds of weapons at the residence where he’s at.”
4. Huber advising, “Don’t let anybody in the house, okay?”
5. The 911 operator saying, “He does have a lot of weapons, right.”
6. The operator stating, “I know you’re scared to death.”
7. The operator stating, “I’ve seen a lot of grody [sic] stuff’ and “a lot of nasty stuff’ and “it’s horrifying.”
8. The operator stating, “Because you have stated several times, he is dangerous.”

In asserting the prejudicial nature of the 911 tape and comments listed above, Henry recognizes the recent case of Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996), where the court upheld the trial court’s admission into evidence a 911 tape that contained the voice of the victim whose house had just been unlawfully entered and who described the vehicle in which the suspects (including Passley) had fled. Passley argued that, among other things, the “frantic” tone of the victim’s voice was unfairly prejudicial. The Passley court ruled the tape admissible as an excited utterance under A.R.E. Rule 803(2), and found no reversible prejudice in admitting such relevant evidence. The court pointed out that Passley offered no legal authority as to how the victim’s alleged “frantic voice” inflamed the jury and presented reversible error.

Here, Henry attempts to distinguish his case from the Passley decision, stating that, in Passley, (1) the defendant was charged with many more crimes, (2) the tape’s admission explained why law enforcement officers were in the victim’s area searching for a particular car, (3) the victim made the 911 call, and (4) no discussion was made of the prejudicial nature of the call itself. As stated previously, Henry concedes, we think correctly so, that the 911 tape at issue here contains relevant evidence. Like the declarant in Passley, Regina made an excited utterance admissible under A.R.E. Rule 803(2) that she and her son had just witnessed Henry’s killing of Williams. This court has long held that all of the circumstances connected with a particular crime may be shown, even if these circumstances constitute a separate crime. Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998); Collins v. State, 304 Ark. 587, 804 S.W.2d 680 (1991); see also A.R.E. Rule 803(1) (making admissible a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter). In short, Regina, in her excitement and while still under the stress of it, described the startling shooting event that she had just witnessed. In addition, Regina’s conversations with others on the tape merely completed the picture and explained where the shooting took place and the dangers she and others might confront following the crime.

Henry further states that, by examining Regina at trial, the State could have proven its case in a much less prejudicial manner than introducing what he labels “the highly prejudicial 911 tape.” Henry analogizes his situation to the one in Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), where the court rejected a trial court’s carte blanche approach to the admission of relevant, but inflammatory photographs. Henry, citing Smith v. State, 19 Ark. App. 188, 718 S.W.2d 475 (1986), urges us to follow the rule adopted by the court of appeals that the probative value of evidence correlates inversely to the availability of other means of proving the issue for which the prejudicial evidence is offered. Id. In other words, if the State has no other means to prove the issue, then the evidence is highly probative, and that may outweigh its prejudicial effect. Id. However, in cases where the State has other means of proving the issue, the balance is tripped in favor of being excluded because of its prejudicial effect. Id.; Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984); see also Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992).

We disagree with Henry’s argument because Golden and Smith involved A.R.E. Rule 404(b) situations where the State’s evidence involved other crimes, wrongs, or acts. In the instant case, the State’s evidence concerns no criminal wrongs or acts and instead describes only the shooting with which Henry was charged and the circumstances — none criminal — that followed the shooting event. A second reason for rejecting Henry’s arguments, which we alluded to earlier, is the fact that the conversations on the tape were relevant evidence that described the crime. This court has repeatedly held that the State was entitled to prove its case as conclusively as it could. Jarrett v. State, 336 Ark. 526, 986 S.W.2d 101 (1999); Harris v. State, 265 Ark. 517, 580 S.W.2d 453 (1979); Reeves v. State, 263 Ark. 227, 564 S.W.2d 503 (1978). Of course, the State must still comply with the rules of evidence in proving its case, but the State did so here.

Henry claimed self-defense and the defense of insanity. Obviously, that portion of the 911 tape where Regina referred to Henry being “crazy” was not prejudicial to him, since it was consistent with Henry’s insanity defense. In addition, Regina’s expressed fears on the tape that she and others could be in danger tended to strengthen the State’s case that Henry was fully armed and acted with premeditation and deliberation when he shot Williams. This proof, along with Regina’s and Roman’s versions that Williams had no gun, tended to show that Henry did not act in self-defense as he claims. Thus, while relevant evidence may be excluded under A.R.E. Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, that is not the situation now before us. In sum, we cannot say that the trial court abused its discretion in admitting the 911 tape into evidence. Regalado, 331 Ark. at 332-33, 961 S.W.2d at 742-43.

In his second point for reversal, Henry submits the State violated Ark. R. Crim. P. 17 by withholding from Henry an offense report which was prepared as a result of a fight that took place between Larry Williams and a man named Darrow Tritt six weeks prior to the date Henry shot Williams. The report reflected that Williams allegedly battered Tritt and that the battery had been witnessed by Henry, Regina Henry, and a woman named Lorretta Sinclair. Apparently, Henry interceded on Tritt’s behalf to protect him. During trial, Henry learned of the existence of the report and that it had been filed with the Logan County Sheriffs Office.

Rule 17.1 imposes a duty on the prosecutor to disclose all information in its possession that could be exculpatory to the defense. This information must be disclosed in sufficient time to permit the defense to make beneficial use of it. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998). Ark. R. Crim. P. 19.7 provides that if the court learns that a party has failed to comply with a discovery rule such as Rule 17.1, the court may order the party to permit the discovery or inspection of the materials not previously disclosed, grant a continuance, prohibit the party from introducing the undisclosed material, or enter such order as it deems proper under the circumstances. Because the report was not made known to Henry’s counsel, Henry moved for a mistrial.

The trial court agreed that the report was in the sheriff s possession, that it was relevant, and that the retention of the report resulted in prejudice to Henry. However, rather than granting a mistrial, the trial court gave Henry a ten-day continuance to permit him time to interview the witnesses who observed Williams’s earlier battery of Tritt. Henry argues the continuance failed to cure any prejudice he suffered because the belated revelation of the report precluded him from utilizing the report in his voir dire of the jury and in using that information in his opening statement. Henry cites two cases, Pridgeon v. State, 262 Ark. 428, 559 S.W.2d 4 (1977), and Strobbe v. State, 296 Ark. 74, 752 S.W.2d 29 (1988), where, he argues, relevant evidence was similarly denied defendants and reversible error was found because the defendants were respectively denied the opportunity to pose questions to prospective jurors and denied the right to voir dire the jury or properly prepare their cases.

We recently reiterated the setded rule that a defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Rychtarik, 334 Ark. at 501, 976 S.W.2d at 379. We also repeated the long-setded rule that a mistrial is a drastic remedy and appropriate only when the error is beyond repair and cannot be corrected by any curative relief. Id.

Henry was well aware of Williams’s earlier attack on Tritt since he was present at the time and aided Tritt. Whatever value the incident between Williams and Tritt had in supporting Henry’s self-defense claim was well known by Henry at the time he voir dired the jury and made his opening statement. In addition, the trial court gave Henry ample time to interview the other witnesses to Williams’s fight with Tritt; in fact, Henry interviewed Sinclair on the subject during the continuance, yet, he fails to make clear how not having the report prejudiced his case when he not only knew of the Williams-Tritt incident, but also had access to those who observed it. For these reasons, we hold the trial court did not abuse its discretion in awarding Henry a continuance in these circumstances.

In his final argument, Henry contends the trial court erred in fading to grant his motion for mistrial because of prosecutorial misconduct during opening statement. In particular, he argues the prosecutor improperly made the following two references pertaining to Henry’s smoking of marijuana on the day of the shooting:

(1) “They [Henry and Williams] [stood] outside for ten, twenty minutes talking, smoking some marijuana;” and
(2) “Business deals going bad, smoking marijuana and everything is going on.”

Henry submits that, while the prosecutor mentioned the above references in his opening statement, the State rested its case without introducing any evidence to support those remarks. The omission of such evidence, Henry argues, prompted him to move for a mistrial. In support of his argument, Henry relies on Timmons v. State, 286 Ark. 42, 688 S.W.2d 944 (1985), for the proposition that a prosecuting attorney should not be tempted to appeal to prejudices, pervert testimony, or make statements to the jury which, whether true or not, have not been proved.

Henry’s reliance on Timmons is misplaced. First, we point out that it is not uncommon for an attorney to outline in an opening statement what he or she anticipates the testimony is going to be, and then, in view of developments in the trial, decide not to produce that evidence. Nolen v. State, 278 Ark. 17, 643 S.W.2d 257 (1982). But more important here, Henry acknowledges the prosecutor presented evidence bearing on the references to Henry’s use of marijuana via the State’s rebuttal witness, Dr. John Anderson.

Dr. Anderson’s testimony was offered by the State to rebut Henry’s insanity defense. In his case-in-chief, Henry called defense witness Dr. Margarita Garcia, who testified that, in her opinion, Henry was psychotic and unaware of the nature of his actions when he shot Williams. Dr. Anderson, on the other hand, opined Henry had the ability to appreciate the wrongfulness of his behavior at the time of the crime. As a part of his evaluation and in his report, Dr. Anderson repeated Henry’s remarks, whereby he admitted having smoked marijuana with Williams before the shooting event. Although Henry apparently never revealed to Dr. Garcia that he had smoked marijuana on the day of the shooting, she opined that if there had been evidence that Henry had been under the influence of drugs which caused his psychosis, such evidence would have affected her clinical opinion. Clearly, Henry and the State knew the relevance of the marijuana references and how those references related to Henry’s insanity defense.

In sum, Henry was informed well in advance of trial that Dr. Anderson’s report and mental evaluation contained Henry’s admissions of having smoked marijuana on the day he shot Williams. Thus, when the State mentioned the two marijuana references in its opening statement, it could have been of no surprise where that information was contained. In a pretrial order, the trial court entered an order stating Henry had raised an insanity defense, and Dr. Anderson’s aforementioned report, including Henry’s remarks, was available to Henry long before Henry’s trial commenced. We fail to see how the State erred either in mentioning the marijuana references when it did or in introducing the evidence or report proving those references on rebuttal.

The record in this case has been examined for errors prejudicial to the defendant in accordance with Ark. Sup. Ct. R. 4-3(h), and no reversible errors have been found.

For the above reasons, we affirm.

       Appellant asserts the conversation following this statement implies that Regina was concerned something bad was going to happen to her and wants to notify her mother.