author: Jack Holt, Jr., Chief Justice.

text:
    Wanda LANCASTER v. Debbie J. WEST and the Conway Board of Realtors
    94-693
    891 S.W.2d 357
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Bethune Law Firm, by: Ed Bethune and Russell L. Hunt, for appellant.

      Henry & Henry, by: Robert W. Henry, for appellee.
   Jack Holt, Jr., Chief Justice.

This is an appeal from a decision by the Faulkner County Chancery Court finding no grounds to set aside an award to appellee Debbie J. West by the Arbitration Panel of appellee Conway Board of Realtors.

The appellant, Wanda Lancaster, raises four points for reversal, contending (1) that the controversy at issue was an employer-employee dispute and therefore not subject to the provisions of the Uniform Arbitration Act and that the trial court erred in finding that she had waived her right to object to arbitration by appearing at the hearing; (2) that the arbitration agreement of the Conway Board of Realtors requiring realtors to submit to mandatory arbitration does not apply to disputants who were members of the same realty firm and that the trial court erred in finding that she had waived her right to refuse arbitration by appearing at the hearing; (3) that, even if she were subject to arbitration, it was not established that she received sufficient notice and that the trial court erred in finding that she had waived notice by appearing at the hearing; (4) that she was deprived of a valuable property right without due process and by undue means in violation of the written agreement and Ark. Code Ann. § 16-108-212 (1987) because the arbitrators were not impartial, the notices given were insufficient and confusing, and she had no right to counsel or to call witnesses.

None of these arguments has merit, and we affirm the decision of the chancery court.

Facts

Both Ms. Lancaster and Ms. West are licensed realtors. From January 25, 1991, until July 20, 1991, Ms. West, doing business as Classic Realty Company of Conway, employed Ms. Lancaster as a sales associate for Classic Realty. Before and after her employment with Classic Realty, Ms. Lancaster was a self-employed real estate broker. Both Ms. Lancaster and Ms. West had been members of the Conway Board of Realtors for some years prior to 1991.

On July 10, 1991, while employed by Ms. West, Ms. Lancaster secured an offer and acceptance executed by the buyers and the seller for the sale of a farm in Faulkner County. Ten days later, on July 20, 1991, she quit her position as sales associate with Classic Realty. Subsequently, on July 22, 1991, Ms. Lancaster procured a cancellation of the July 10 offer-and-acceptance contract by having the seller write “Void” on the instrument. On the same day, Ms. Lancaster arranged for the execution of a new offer-and-acceptance contract between the buyers and the seller for the purchase of the same farm. Ms. Lancaster refused to pay Ms. West her share of the commission on the sale.

Ms. West then filed a request for arbitration with the Grievance Committee of the Conway Board of Realtors on July 27, 1991. The committee determined that there was probable cause for a hearing, which the board scheduled for August 22, 1991. Ms. Lancaster received notice on July 29, 1991, and filed a reply and a letter to “Grievance Committee Members” on August 1, 1991.

Ms. Joyce Hall, the chair of the Arbitration Board, received three telephone calls from Ms. Lancaster prior to the hearing. In the first, on August 5, 1991, Ms. Lancaster requested that the hearing be held as soon as possible and that she be notified of the date. Ms. Lancaster phoned a second time to ask that the hearing be conducted as soon as possible. Then, on August 20, 1991, Ms. Lancaster phoned Ms. Hall a third time and notified her that she would be unable to appear at the hearing set for August 22 because she had to attend a funeral that day. With Ms. Lancaster’s consent, the hearing was rescheduled for August 23, 1991, and a notice was sent dated August 22, 1991.

Ms. Lancaster appeared at the hearing on August 23, 1991. After receiving evidence and deliberating, the Arbitration Board unanimously awarded Ms. West $7,404.80, the amount she had sought from Ms. Lancaster. After Ms. Lancaster refused to pay the sum, Ms. West, on October 23, 1991, filed a petition in the Faulkner County Chancery Court to enforce the arbitration agreement, pursuant to Ark. Code Ann. § 16-108-216 et seq. (1987). A hearing was held before the court on November 5, 1993.

In its opinion filed on February 3, 1994, the chancery court found that Ms. West was entitled to the amount set forth in the August 23, 1991 “award of arbitrators.” The court noted that Ms. Lancaster had argued that the arbitration panel’s action was not binding on her under Ark. Code Ann. § 16-108-201 because she was Ms. West’s employee at the time the dispute arose. Yet, the court observed, “[e]ven assuming without deciding that this contention has merit, it appears that [Ms. Lancaster] waived it by agreeing to submit disputes to arbitration and actively participating in this particular arbitration panel’s hearing without ever raising any objections and specifically no objections on this point.”

The formal decree was entered on March 7, 1994. From that decision, this appeal arises.

I. Applicability of Uniform Arbitration Act

In her first point for reversal, Ms. Lancaster makes two related arguments. She contends that the chancery court erred in failing to find that the Uniform Arbitration Act was inapplicable under Ark. Code Ann. § 16-108-201 (1987) because the dispute was between employer and employee and, further, that the court erred in finding that Ms. Lancaster had waived her right to object to the Conway Board of Realtors’ power to conduct an arbitration hearing by making an appearance.

The crucial question in this appeal concerns the applicability of the Uniform Arbitration Act. It is jurisdictional in character and must be resolved before other matters may be treated.

Although it was subsequently amended in 1993, the governing statutory provision concerning application of the Uniform Arbitration Act in 1991 read as follows:

A written agreement to submit any existing controversy to arbitration or a written provision to submit any controversy thereafter arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract; provided, that this chapter shall have no application to personal injury or tort matters, employer-employee disputes, nor to any insured or beneficiary under any insurance policy or annuity contract.

Ark. Code Ann. § 16-108-201(1987). (Emphasis added.)

This court, citing the same statutory section, specifically held in Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985), that questions in the law of torts are not subject to written agreements to arbitrate. By the same token, employer-employee disputes, whether existing or prospective, were not, under § 16-108-201, subject to written agreements to arbitrate in 1991.

Two offer-and-acceptance contracts are at issue here, and the question of employer-employee status is directly related to the question of which is the operative instrument giving rise to the controversy. The first, subsequently voided contract of July 10,1991, was executed during the term of Ms. Lancaster’s employment by Ms. West. According to Ms. Lancaster, Ms. West’s cause of action is necessarily dependent upon that first document, which was executed when Ms. Lancaster was in Ms. West’s employ, and it is of no moment that a second offer-and-acceptance contract was executed later.

The second contract, dated July 22, 1991, was executed after Ms. Lancaster had severed her relationship with Classic Realty. Contrary to Ms. Lancaster’s position, the sale was consummated only through that instrument, and payment of commission was due only at that point. Consequently, Ms. West’s cause of action (or, more precisely, grounds for complaint to the Arbitration Board) did not ripen until the second offer-and-acceptance contract had been executed and the realtor’s commission was payable. Thus, the provisions of the Uniform Arbitration Act were applicable to the matter at hand.

Having determined that Ms. Lancaster was subject to the Act, it is unnecessary for us to consider the related issue of waiver, which would have been relevant only in the event that an employer-employee relationship had existed at the time the sale was consummated.

II. Mandatory arbitration requirement

Ms. Lancaster contends in her second point for reversal that the mandatory arbitration requirement adopted by the Conway Board of Realtors does not apply to disputants who were members of the same realty firm and, further, that the chancery court’s finding that, by her appearance, she had waived her right to refuse arbitration was error. This argument is premised on the assumption that Ms. Lancaster and Ms. West were members of the same realty firm at the time the cause of action arose. As discussed above, however, Ms. Lancaster was no longer associated with Classic Realty at the time the sale in question was consummated.

Article 14 of the Code of Ethics approved by the Professional Standards Committee and the Board of Directors of the National Association of Realtors and adopted by the Conway Board of Realtors provides that:

In the event of a controversy between REALTORS associated with different firms, arising out of their relationship as REALTORS, the REALTORS shall submit the dispute to arbitration in accordance with the regulations of their Board or Boards rather than litigate the matter.

As the parties were associated with different firms at the time the cause of action arose, the mandatory arbitration agreement was applicable.

III. Notice and waiver

The third point concerns notice and waiver. Mrs. Lancaster asserts, first, that Ms. West failed to establish that adequate notice of the arbitration hearing was provided under Ark. Code Ann. § 16-108-205(1) (1987) or § 33(b) of the Code of Ethics and Arbitration Manual adopted by the Conway Board of Realtors. The statute requires that the arbitrators “cause notification to the parties to be served personally or by registered mail not less than five (5) days before the hearing.” The manual provision specifies that “[t]he parties shall be given at least twenty-one days prior notice of a hearing.”

According to Ms. Lancaster, inconclusive evidence was presented as to whether the notice dated August 1, 1991, had been mailed, personally served, or, indeed, delivered at all. Ms. Lancaster testified that she did not receive a copy of the formal written notice until the day of the hearing, although she stated that she was advised by telephone of the time and place of the scheduled August 22, 1991 hearing on the day before the hearing was to be held. Ms. Hall, chair of the arbitration panel, testified that Form No. 9, the official notice of the arbitration hearing, was sent to the parties on August 22, 1991, notifying them of the hearing to be held on the following day.

Ms. Lancaster’s argument is misdirected. In the first place, arbitration is strongly favored by public policy in this state and is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Dean Witter Reynolds Inc. v. Deislinger, 289 Ark. 248, 711 S.W.2d 771 (1986). The party attempting to overturn an arbitration award — not, as Ms. Lancaster suggests, the party attempting to sustain it — bears the burden of proof. Id.

Further, it is undisputed that Ms. Lancaster phoned Ms. Hall on three occasions after responding to the initial notice on August 1, 1991. It is clear that she was aware of the August 22, 1991 hearing date when she phoned Ms. Hall on August 20, 1991, and told her that she would be unable to attend the scheduled meeting. It is apparent that Ms. Lancaster agreed to reschedule the hearing for August 23, 1991.

Moreover, it is unquestioned that Ms. Lancaster appeared before the arbitration panel on August 23, 1991. While she urges that the chancery court erred in ruling that she had waived notice by her appearance, the statute plainly supports the finding. Under Ark. Code Ann. § 16-108-205(1): “Appearance at the hearing waives notice.” Whatever formal defects may have existed in the notice procedure, Ms. Lancaster cannot now assert them.

IV. Impartiality of arbitrators

In her final point for reversal, Ms. Lancaster argues that she was deprived of a valuable property right without due process and by undue means because the arbitrators were not impartial, the notices given to her were insufficient and confusing, and she was extended no right to counsel or to call witnesses. The question of notice has been disposed of earlier.

Regarding the alleged partiality of the board, the party attempting to set aside the award on such a basis bears the burden of proof. Chrobak v. Edward D. Jones & Co., 46 Ark. App. 105, 878 S.W.2d 760 (1994). Apart from Ms. Lancaster’s assertion in her brief that it was her “belief that certain arbitration panel members were not impartial,” no testimony was presented to demonstrate in what way partiality was shown. The interest, partiality, or bias that will suffice to overturn an arbitration award must be certain and direct rather than remote, uncertain, or speculative. Dean Witter Reynolds Inc. v. Deislinger, supra.

Finally, with respect to Ms. Lancaster’s contention that she was denied the right to counsel and to call witnesses, the record reveals that the “Official Notice of Hearing (Arbitration)” — to which she responded on August 1, 1991 — explicitly provided that “[e]ither party may be represented by legal counsel” and that “[e]ach party shall arrange for his witnesses to be present at the time and place designated.”

We hold that the chancery court did not commit reversible error.

Affirmed.

Roaf, J., not participating.

       The amended statutory section, Ark. Code Ann. § 16-108-201 (Supp. 1993), retains the bar against application of the Act to employer-employee disputes in cases involving “[a] written provision to submit to arbitration any controversy thereafter arising between the parties bound by the terms of the writing”; an “existing controversy” arising from an employer-employee dispute may now be submitted to arbitration.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    ST. PAUL FIRE & MARINE INSURANCE CO. v. Opal BRADY, Special Administratrix of the Estate of Vird E. Brady
    92-614
    891 S.W.2d 351
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Friday, Eldredge & Clark, by: Laura Hensley Smith, Sarah J. Heffley, and David D. Wilson, for appellant.

      David Hodges, for appellee.
   Jack Holt, Jr., Chief Justice.

St. Paul Fire & Marine Insurance Company appeals from a judgment in a medical negligence action in favor of appellee Opal Brady, special administratrix of the estate of her late husband, Vird E. Brady. Mrs. Brady cross-appeals.

The following points form the basis of St. Paul’s appeal:

I. Whether the trial court erred in failing to direct a verdict on the issue of sufficiency of the medical evidence of proximate causation of injury and death;
II. Whether the trial court erred in failing to direct a verdict on the issue of negligence;
III. Whether the trial court erred in failing to grant a motion in limine to preclude any discussion at trial regarding post-incident meetings with hospital administrators.

As we reverse and dismiss the matter on the first issue argued by St. Paul, we need not consider the other points on appeal, and we dismiss the cross-appeal without further discussion.

Facts

Vird E. Brady was an 81-year-old man who resided near Enola in Faulkner County. He suffered from various medical problems, including emphysema, recurring pneumonia, chronic obstructive lung disease, Parkinson’s disease, and atrophy of the brain resulting in senile dementia.

In 1988, when Dr. Bart Throneberry became his treating physician, Mr. Brady was in an unresponsive state and had to be fed by a tube. Following hospitalization in February and March 1988, Mr. Brady was maintained at home with the use of a hospital bed, visiting nurses, pureed food, and supplemental oxygen. His condition gradually improved to the point where, on May 10, 1988, he was able to attend a ball game and walk half a mile to his son’s house.

The next day, May 11, 1988, as Mr. Brady was reaching for a shirt while getting dressed, he fell on the floor. Mrs. Brady was unable to get him up and called her son, Charles Brady, to come to the house and assist her. After the two got Mr. Brady on his feet, he ate a big breakfast. Later, Mrs. Brady, who had been concerned about her husband sleeping excessively for the past two or three days, phoned Dr. Throneberry to schedule an appointment. She stated at trial that she didn’t mention the “little fall.”

That afternoon, Mrs. Brady took her husband to Dr. Throneberry’s office in Conway and told him about the fall and a “little red place” on Mr. Brady’s head. Dr. Throneberry noted a bruise over the left temple. He ordered' a CT scan of Mr. Brady’s brain to be performed at Conway Regional Hospital to determine whether there was damage resulting from the fall or from a stroke.

The Bradys immediately went to the hospital, arriving there at about 3:00 p.m. A nursing assistant, Peggy Earnhart, took Mr. Brady in a wheelchair to the x-ray department for the CT scan. After delivering Mr. Brady to the x-ray department, Ms. Earnhart remained with him for a few minutes until the x-ray technician, Carol Hill, arrived. Ms. Hill asked Ms. Earnhart to “wait a minute” and, explaining that it would take a few minutes for the machine to warm up, went into the CT scan room to attend to preparations and paperwork. Ms. Earnhart, however, left because her shift had just ended and she was off duty.

Mr. Brady remained in the wheelchair, unattended. As she was leaving, Ms. Earnhart testified, she asked Mr. Brady to stay in the wheelchair, and, she said, “He nodded his head ‘Yes.’” After clocking out and retrieving her purse, Ms. Earnhart passed by the x-ray department and noticed that Mr. Brady was still alone. A short time later, Ms. Hill returned to take Mr. Brady into the CT room and discovered him lying unconscious in a pool of blood on the floor several feet away from his wheelchair.

A radiologist and an emergency-room physician were called to examine Mr. Brady. His vital signs were stable, and, after a telephone consultation with Dr. Throneberry, it was decided to continue with the CT scan. Afterward, Mr. Brady was returned, with a bruised face and still unconscious, to his room, where Mrs. Brady had been waiting for an hour and a half with no word concerning her husband’s condition. She received no explanation from hospital personnel until she went to the nurses’ station and was informed that someone had called from the x-ray department and had said that there had been an accident.

The CT scan revealed that Mr. Brady had suffered a brain hemorrhage. Dr. Throneberry ordered that he be transferred to the care of a neurosurgeon at St. Vincent Infirmary Medical Center in Little Rock. When it was determined that surgery would not be necessary, Mr. Brady was transferred back to Conway Regional Hospital, where he remained until his death on July 20, 1988, some seventy days after his falls at home and at the hospital.

On February 17, 1989, Mrs. Brady filed suit in the Faulkner County Circuit Court against St. Paul Fire & Marine Insurance Company, liablity carrier for Conway Regional Hospital, which, as a non-profit organization, was immune from civil liability. The complaint alleged that the agents, servants, and employees of the Conway Regional Hospital were guilty of negligence, which was a proximate cause of the injuries and resulting death of Mr. Brady.

Following a jury trial, a verdict was rendered in favor of Mrs. Brady. Damages were awarded as follows: Estate of Vird E. Brady — $50,000; Mrs. Opal Brady — $40,000; Ann Holland (daughter) — $4,000; Charles Brady — $4,000. St. Paul filed a motion for judgment notwithstanding the verdict, which the trial court granted, reducing the estate’s $50,000 award to $2,300. Counsel for Mrs. Brady then filed a motion to amend the order, explaining to the court that the evidence at trial of funeral expenses was actually $4,300. Subsequently, the trial court corrected its ruling to reflect an award to the estate of $4,300.

Proximate cause of injury and death

The only issue that we consider in this appeal is St. Paul’s argument that the trial court erred in denying the defense’s motion for a directed verdict on the issue of proximate causation as there was no substantial evidence that the cause of injury and death was related to any act or omission by hospital employees. The test for the trial court in ruling on a motion for a directed verdict is to take that view of the evidence that is most favorable to the non-moving party and to give it its highest probative value, taking into account all reasonable inferences deducible from it; after viewing the evidence in this manner, the trial court should (1) grant the motion only if the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside, or (2) deny the motion if there is substantial evidence to support a jury verdict for the non-moving party. Young v. Johnson, 311 Ark. 551, 845 S.W.2d 509 (1993). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other. It must force or induce the mind to pass beyond suspicion or conjecture. Id.

To resolve this issue, we focus on whether there was substantial evidence to support the view that the second fall at the hospital on May 11, 1988, rather than an aneurysm or the first fall at home, was the proximate cause of Mr. Brady’s brain injury, unconsciousness, and, ultimately, death. According to St. Paul, the only evidence concerning the cause of the brain injury was presented in the form of lay circumstantial testimony from family members. This evidence, St. Paul contends, merely amounted to anecdotal statements that Mr. Brady seemed very alert and responsive to his wife and son before he went to the hospital and that he was in a coma when, later in the day, they saw him again.

Of course, proximate cause may be proved by either circumstantial or direct evidence. Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979). It is, however, necessary that there be evidence that would tend to eliminate other causes that may fairly arise from the evidence and that the jury not be left to speculation and conjecture in deciding between two equally probable possibilities. McAway v. Holland, 266 Ark. 878, 599 S.W.2d 387 (Ark. App. 1979). That factor is crucial with regard to this issue.

The jury had before it evidence supplied by Opal Brady and Charles Brady that, after the first fall at home, Vird Brady was alert and, once lifted to his feet, capable of moving on his own. For approximately nine hours after the first fall, according to Mrs. Brady, her husband was conscious and responded to questions. Moreover, although he was somewhat lethargic, Mr. Brady nonetheless “seemed a little stronger” to his wife after the fall at home.

Further, Dr. Throneberry testified that, while Mr. Brady “seemed weaker” and mumbled when he examined him, no neurological changes could be detected. He noted a small bruise over the left temple, which he assumed resulted from the first fall. He stated that he ordered a CT scan because Mr. Brady had fallen at home, had a bruise over his temple, and exhibited a sudden change in his condition. Dr. Throneberry did not order restraints because he believed them to be unnecessary, though he indicated that leaving Mr. Brady alone for more than five minutes would be “getting away” from a reasonable amount of time.

Nurse Earnhart stated that Mr. Brady responded when she spoke to him on his arrival at the hospital, that he did not seem to be in a confused state, and that she could see no signs of injury “on him or about his head.” She testified that she didn’t believe that anyone needed to watch out for Mr. Brady and that when she passed by on her way out a few minutes afterward “he was in the wheelchair in the same position he was when I left him.” According to Ms. Earnhart, Mr. Brady could have undone a restraint if one had been placed on him.

Regarding the fall at the hospitál, some evidence was presented concerning the severity of the second fall. Mr. Brady was discovered lying face down in a pool of blood, unconscious, in a hospital corridor. Photographs taken after the second fall were introduced showing Mr. Brady’s face bruised and swollen, with a laceration on the forehead. Charles Brady testified that, after the second fall, Mr. Brady “did not respond to anything.” It was established that the first fall occurred on a carpeted floor, while the second fall happened in a non-carpeted, hard-surface area.

Dr. Keith Bell, a radiologist who was in charge of the CT scan performed on May 11, 1988, noted that the procedure revealed that, in addition to atrophy (involving loss of brain tissue through probable multiple small strokes which had been evident in earlier CT scans), Mr. Brady had a blood clot that had accumulated at the base of the brain stem on the right. When Dr. Bell first detected the presence of a blood clot, he thought that the location was “an unusual place for someone to get a blood clot if they have had a trauma” and believed that the clotting was more consistent with Mr. Brady having sustained an aneurysm.

A blood clot or mass in this area would not have to become too large, he stated, in order to cause the patient to become comatose or to die. Because the area was small, Dr. Bell remarked, “it is possible for the bleed to have occurred slowly over a period of time.” On cross-examination, however, he acknowledged that, due to the small area involved, the symptoms could appear “quicker.”

In sum, Dr. Bell further testified that the blood clot could have been caused by either fall and that “[i]t would be pure speculation for me to state which fall, if either, caused this injury.” The actual mechanism of the injury, Dr. Bell explained, was the shifting of the brain within the skull and not the impact itself. The shifting causes a tear in small veins that subsequently bleed at either a slow or rapid rate. According to Dr. Bell, a slow bleed would produce subtle symptoms over a period of time before the person would finally pass out. He stated that he had no reason to believe that there had been a fast accumulation of blood.

Dr. Throneberry’s testimony is of no consequence as he stated that he did not know whether Mr. Brady’s brain injury was caused by the fall at home or the fall at the hospital. He asserted that it was outside the range of his expertise to say which fall caused the injury.

A case cited by St. Paul regarding proximate cause of death, McAway v. Holland, supra, is apposite. In McAway, a person who had been in an automobile accident four weeks earlier and who no longer had “any get-up-and-go” suddenly died four weeks later. The Arkansas Court of Appeals affirmed the trial court’s finding that the death was not proximately caused by the accident, observing that lay testimony on cause of death is unacceptable and that:

There is no circumstantial evidence — even the most scant — which suggests a causal connection between the accident and death. The mere fact both happened about a month apart proves nothing. If there had been some evidence of causal connection maybe the lay testimony might have been slight corroboration. However, standing alone it is nothing. . . .

266 Ark. at 883, 599 S.W.2d at 390.

To recapitulate, neither Dr. Bell nor Dr. Throneberry could say that either fall caused Mr. Brady’s injury or death. Dr. Bell, as noted earlier, outlined three possible scenarios — (1) an aneurysm; (2) the first fall at home; and (3) the second fall at the hospital — and emphasized that a conclusion on his part concerning the cause of injury would be purely speculative. Dr. Throneberry explained that a decision regarding which fall caused the injury was beyond the bounds of his expertise. All that remained, then, was anecdotal information from a variety of witnesses. The jury, with nothing but uncorroborated lay testimony on which to rely, was left to wander in a maze of speculation and conjecture. We hold that the trial court erred in refusing to direct a verdict in favor of St. Paul on causation.

This court would be remiss in its responsibility if it failed to take note of the abstracting abuses by counsel for Mrs. Brady. The supplemental abstract filed on October 29, 1992, by counsel for Mrs. Brady as appellee consists of 120 single-spaced pages of pleadings and a pre-trial hearing transcript copied verbatim from the record rather than condensed in compliance with Sup. Ct. R. 4-2(a)(6). As we noted in Forrest City Machine Works, Inc. v. Mosbacher, 312 Ark. 578, 587, 851 S.W.2d 443, 448 (1993), a case in which much of the abstract consisted of a single-spaced, verbatim retyping of the record, “excessive abstracting is as violative of our rules as omissions of material pleadings, exhibits, and testimony.” Although some of the information thus provided in the present case was material, much of it could have been abridged in accordance with the rule or simply deleted without compromising its materiality. With so lengthy a record as that presented here, this court’s efforts to reach a final resolve would have been aided considerably by scrupulous adherence to Rule 4-2(a)(6), which provides that

[t]he appellant’s abstract of abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.

(Emphasis in original.)

Appeal reversed and dismissed.

Cross-appeal dismissed.

Brown, J., dissents.

Roaf, J., not participating.

Robert L. Brown, Justice,

dissenting in part, concurring in part. This appeal concerns what caused Mr. Brady’s blood clot which led to his death. In my judgment, substantial proof was introduced to support a jury finding that the second fall was the proximate cause. The majority opinion states that no conclusion was reached by a medical doctor on the cause of Mr. Brady’s blood clot. But a medical conclusion concerning causation is not required for the matter to go to the jury. Here, Dr. Bell’s initial opinion was that trauma from one of the two falls “most likely” caused the blood clot. That testimony coupled with testimony from three witnesses concerning Mr. Brady’s condition before and after the second fall remove any bona fide suspicion that the verdict was premised on speculation.

As the majority states, the boilerplate law regarding the required proof is clear. The evidence of causation must be substantial, which means that it must pass beyond suspicion and conjecture and compel a conclusion one way or the other. Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994). Time and again we have said that that evidence must be viewed in the light most favorable to the appellee, in this case the Brady Estate, and given its highest probative value taking into account all reasonable inferences deducible from it. Id. When that is done, the Brady Estate must prevail.

Dr. Keith Bell, the treating radiologist for Mr. Brady, testified for St. Paul and was questioned on direct examination about the cause of the blood clot:

Q. And what was that opinion? What crossed your mind when you saw that CT Scan?
A. Well, as I mentioned earlier, the first thing that crossed my mind was the possibility of an aneurysm that ruptured. It’s not unfrequent (sic) — or infrequent to see patients come over who-the only history we have is that they’ve fallen, and you do the scan and you find they’ve ruptured an aneurysm or they’ve had a stroke or any number of other things that could cause a person to fall. So that was the first thing that went through my mind. And I also considered the fact that it could well be caused from his trauma either that morning or from the fall that he had just sustained.

In short, Dr. Bell testified on direct examination that there was a medical basis for Mr. Brady’s blood clot, it having been caused by either an aneurysm or a fall. That is far different from testimony that the cause of the blood clot was open completely to speculation.

On cross-examination by counsel for the Estate, Dr. Bell admitted that his original opinion was that the cause of the blood clot was most likely the result of a blow to the head as opposed to an aneurysm. Reading from Dr. Bell’s medical report, counsel for the Estate inquired:

Q. Now you did render an opinion as to what caused this blood clot, didn’t you?
A. I did.
Q. And if the jury can look at it, it’s what? [t]he third, fourth line down starting there, where it says under “Impression,” Dr. Bell, it says, “I believe this is most likely related to trauma with contusion of the brain against the tentorium, possibly tearing a small vein in this area; is that correct?”
A. That’s correct.

Thus, it is beyond dispute that on the date of the fall, May 11, 1988, Dr. Bell concluded in his medical report after the CT scan that trauma to the head most likely caused the bruising of the brain and the bleeding.

Then there are Dr. Bart Throneberry’s progress notes on Mr. Brady the day of the two falls. After the first fall at home, Dr. Throneberry saw Mr. Brady in his office. He described him in his notes as “mumbling, confused, very weak and ataxic. PT did answer simple questions.” A CT scan was ordered.

After the second fall at the hospital, Dr. Throneberry’s notes reveal that he found Mr. Brady with his “eye swollen shut” and a small laceration on his eyebrow, conditions, which he emphasized by underlining, that had not been present during his office visit. He added that Mr. Brady was “responsive only to pain.”

After the second fall and the CT scan, Mr. Brady was ordered to St. Vincent Infirmary in Little Rock in an ambulance. The paramedic’s notes show him as unconscious and unresponsive to verbal or pain stimulation. At St. Vincent Infirmary, Dr. David Reding made progress notes on the same day of the fall that Mr. Brady had an “intracerebral bleed” and was “unresponsive” and that he had “no speech” and showed a “fresh” hemorrhage around the midbrain. The outlook was “guarded.” The records at St. Vincent Infirmary also stated that Mr. Brady had been in the hospital for a CT scan two months earlier in March and that there was “no definite aneurysm.”

In addition to the medical testimony, there was the testimony of the widow, Opal Brady, and the son, Charles Brady, at trial. Both testified that before the fall in the hospital Mr. Brady was awake and responsive and after the fall, he was unconscious. Mr. Brady remained virtually unconscious until his death.

In sum, although there was no specific medical testimony that the second trauma to the head caused the blood clot, there was certainly medical proof that trauma was the proximate cause of the clot. This was followed and supplemented by testimony of how Mr. Brady looked and reacted before and after the hospital fall. That testimony came from Dr. Throneberry and Opal Brady and Charles Brady and militated in favor of a conclusion that Mr. Brady’s condition was significantly worse after the second fall. He was found in a pool of blood, and his eye swelled shut after the second trauma. He was then rushed to St. Vincent Infirmary. He never regained full consciousness after the second fall. The evidence supporting a conclusion that the second fall caused the blood clot was manifestly substantial, especially when viewed in a light most favorable to the Estate and giving that evidence the highest probative value.

This is not a case where the jury was left to speculate between two equally probable causes. See Hill v. Maxwell, 247 Ark. 811, 448 S.W.2d 9 (1969). It is a case where the proof preponderates in favor of the Estate’s theory of causation. This case was decided by a jury, as fact finder, and should have been as the determination of causation is ordinarily an issue of fact. See Stacks v. Arkansas Power & Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989); Curbo v. Harlan, 253 Ark. 816, 490 S.W.2d 467 (1973); Chambliss v. Brinton, 229 Ark. 526, 317 S.W.2d 143 (1958). I respectfully dissent from the decision to reverse on this ground.

I agree, however, with the majority’s decision to dismiss the cross-appeal for violation of Supreme' Court Rule 4-2(a)(6).


author: David Newbern, Justice.

text:
    Undra SUMLIN v. STATE of Arkansas
    CR 94-362
    891 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Bethell, Callaway, Robertson, Beasley & Cowan, by: Matthew

      J. Ketcham, for appellant.

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

Undra Sumlin was convicted of two counts of delivery of cocaine and one count of conspiracy to deliver cocaine. He was sentenced as an habitual offender to 66 years imprisonment. His points of appeal relate only to his contention that his trial counsel was ineffective.

Ineffective assistance of counsel may not be raised as a point of direct appeal, Harrison v. State, 303 Ark. 247, 796 S.W.2d 329 (1990), unless the issue has been considered by the Trial Court, e.g., on a motion for new trial. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). See also Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983); Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976).

Affirmed.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Lamar WITHERSPOON v. STATE of Arkansas
    CR 94-999
    891 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Claudell Woods, for appellant.

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

The appellant, Lamar Witherspoon, was convicted of attempted second degree murder and felony fleeing. He was sentenced to 35 years imprisonment. The sentence was enhanced due to his use of a firearm.

Mr. Witherspoon’s points of appeal have to do with the felony fleeing conviction. In the course of the trial, the prosecution discovered that the wording of the statute which makes fleeing from an officer a crime, Ark. Code Ann. § 5-54-125 (Supp. 1993), had been changed. Previously, the statute made the offense a misdemeanor unless “personal injury” occurred as a direct result of fleeing on foot, in which case fleeing was a felony. It was changed to make the offense a felony if “serious physical injury” occurs. Mr. Witherspoon contends the Trial Court erred in allowing the State to amend the information to state he had caused “serious physical injury” rather than “personal injury” after it had presented its case in chief. We hold that the amendment to add the word “serious” changed neither the degree nor the nature of the offense charged, and thus no error occurred.

Mr. Witherspoon also contends that because he was only 19 years old at the time of the crime, he could only have been convicted of misdemeanor fleeing because § 5-54-125(c)(5) provides fleeing shall be a misdemeanor if the defendant is under the age of 21 and has no prior fleeing conviction. We decline to consider this point because it was not raised at the trial. Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992). Even if it had been raised, we would affirm in view of Mr. Witherspoon’s testimony that he had previously been convicted of fleeing.

Along with our discussion of the amendment of the information, we will discuss Mr. Witherspoon’s contentions that the injury he inflicted upon the police officer who pursued him was not “serious,” and that cumulative error should cause his conviction to be reversed.

The evidence included testimony from which the jury could have concluded these facts. Mr. Witherspoon attended a party at the home of a friend where beer and alcohol were served. After the party, he and two of his friends were walking down the street when one of them fired a gun into the air. When a police car approached, they ran. Nashville Police Officer Free testified that he and other officers ran after the three people who had started running as the officers approached. The three split up, and Officer Free pursued Mr. Witherspoon who attempted to hide in bushes. As the officer approached the bushes, Mr. Witherspoon shot and wounded him in the right shoulder, right thumb, and the right hip. Mr. Witherspoon then climbed a nearby fence and continued to run. He turned himself in to the Howard County Sheriff’s Office the following morning.

1. Serious physical injury

In pertinent part, § 5-54-125 provides:

(a) If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance.
* * *
(c) Fleeing shall be considered a Class C misdemeanor, except under the following conditions:
* * *
(3) Where serious physical injury occurs to any person as a direct result of the fleeing on foot, the offense shall be a Class D felony;
* * *

Mr. Witherspoon contends the State did not present sufficient evidence of “serious physical injury” to invoke condition (3). In other words, the State did not prove that Officer Free suffered a “serious physical injury” as that term is defined in the criminal code, thus the charge of a Class D felony was unwarranted and should not have been submitted to the jury.

Arkansas Code Ann. § 5-1-102(19) (Repl. 1993) defines “serious physical injury” as “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Mr. Witherspoon argues that the State’s own witness, Dr. Dunn who treated Officer Free after the shooting, testified that the wounds to the thumb and shoulder were superficial and the wound to the hip was not to the joint or to a blood vessel. Thus, he contends these injuries were not “serious.”

The State notes in response that Dr. Dunn testified that the hip injury did not have an exit wound, and an x-ray showed a bullet slightly above the right hip. Dr. Dunn also testified that the bullet was half an inch from the hip joint and three inches from the femoral artery, which is the main artery that goes to the leg. Officer Free testified he was hospitalized for approximately two days, and was heavily drugged during that time. The bullet remained in his hip at the time of the trial five months after the shooting.

The test is whether, viewing the evidence in a light most favorable to the State, there is substantial evidence to support the verdict. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).

Although two of the wounds to Officer Free were superficial, the hip wound narrowly missed the bone and a major artery. Dr. Dunn told Officer Free he was lucky in that respect. Officer Free was hospitalized for two days after the shooting in a heavily sedated condition.

In Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987), we considered whether serious physical injury as described in § 5-1-102(19) had been inflicted on a gunshot victim. The victim had been shot twice in the legs, once in the right knee, and once in the left foot with a .22 caliber pistol. She was hospitalized for one night and one day for treatment, and she remained home from work for approximately one month. We held the evidence of serious physical injury was sufficient. Officer Free’s injuries were at least as serious as those described in the Henderson case.

2. Amended information

Mr. Witherspoon contends he was originally charged with only a misdemeanor and that the amendment raised the offense to a Class D felony. We have examined the information as abstracted and in the record, and we find it clearly charged a class D felony. His argument then moves to the contention that it was improper to permit the amendment to assert “serious” physical injury at the close of the State’s case in chief because it deprived him of the right to cross-examine the State’s witnesses as to the seriousness of the injuries he inflicted upon Officer Free.

A prosecuting attorney may amend an indictment as to matters of form, but not so as to change the nature or degree of the crime charged. Ark. Code Ann. § 16-85-407 (1987). As long as the nature and degree of the crime remain unchanged, and there is no unfair surprise, the State may amend an information at any time prior to submission of the case to the jury. Midgett v. State, 316 Ark. 553, 863 S.W.2d 165 (1994); Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). The nature of the crime remained unchanged; the initial charge was fleeing, and that did not change. The degree of the offense charged was Class D felony, and that did not change.

As to surprise, it is apparent that Mr. Witherspoon’s counsel was aware that the law required a finding of “serious” physical injury in order for the felony fleeing charge to be sustained.

DEFENSE COUNSEL: Dr. Dunn, your conclusion was that there were no serious injuries, is that correct?
DR. DUNN: My conclusion was that the path of the bullet had not struck the hip or a major blood vessel, but that he had the potential for infection as a result of this injury. But it is correct that the potential of infection exists regardless of where a person is shot.
DEFENSE COUNSEL: It’s your conclusion after evaluation [of] Officer Free on September the 5th . . . that he did not have any serious injuries; is that correct?
DR. DUNN: I’d have to see my record to see exactly the term that I wrote. I usually write an impression at the bottom.

The record reveals that Mr. Witherspoon’s counsel was aware of the current language of the statute at the time he moved for a directed verdict. There was no surprise.

3. Cumulative error

For his final point, Mr. Witherspoon argues the amendment to the information, the erroneohs charge of a felony rather than a misdemeanor, and errors surrounding the application of the firearm enhancement provisions to his sentence amount to cumulative error. He argues his sentence should be modified to become one appropriate to a Class C misdemeanor, and that any time added as a result of the enhancement statute should be subtracted. The only authority cited in support of the argument is Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993). No such argument was presented to the Trial Court.

As discussed above, it was not error to charge Mr. Wither-spoon with felony fleeing. Nor was it error to permit the information to be amended. Two of the alleged errors said to have accumulated were not errors.

The third of the alleged errors mentioned has to do with the repeal of the firearm enhancement statute, Ark. Code Ann. § 5-4-505 (1987), after the crime was committed but before the trial. We note that the commitment order refers to both § 5-4-505 and to Ark. Code Ann. § 16-90-120 (1987). The latter statute permits up to 15 years enhancement of sentence by the Trial Court but does not require it as did § 5-4-505. Even if we were to find error on this point, despite the fact that it was not presented to the Trial Court, we could hardly sustain a cumulative error argument on the basis of it.

Although it is not cited by Mr. Witherspoon, we take this opportunity to correct an obiter misstatement in Manning v. State, 318 Ark. 1, 883 S.W.2d 455 (1994). There we said, “We acknowledge that cumulative error can require reversal even in the absence of objections made at trial. See Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993).” We applied the cumulative error doctrine in the Dillon case as it should be applied. Rulings of the Trial Court which would not, standing alone, have caused reversal did, when taken together, amount to reversible error. There were objections to the rulings in question in the Dillon case, and we have no case in which we have held that errors to which no objection is made may form the basis of a reversal for cumulative error. In addition, we have held that the cumulative error objection itself must be presented to the Trial Court, Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994); Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994), and that was not done here.

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur. Officer Free’s hip wound is clearly a protracted impairment of health and “serious physical injury” as defined under Ark. Code Ann. § 5-1-102(19). As related in the majority opinion, the bullet remains lodged slightly above Free’s right hip and is only three inches from his femoral artery. In addition, Dr. Robert Dunn testified the wound was potentially life threatening in that bullet wounds notoriously become infected. The bullet remained in the officer, at least, up to the time of trial or five months after the shooting occurred. For this reason alone, I would affirm as to point one.


author: Tom Glaze, Justice.

text:
    Barry G. AARON v. STATE of Arkansas
    CR 94-524
    891 S.W.2d 364
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Bryant & Henry, by: Barry A. Bryant, for appellant.

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

Appellant Barry Aaron brings this second appeal from a retrial where he was convicted of one count of kidnapping and one count of rape for which he received consecutive life terms. This court had earlier reversed Aaron’s convictions for these crimes because of trial error. See Aaron v. State, 312 Ark. 19, 846 S.W.2d 655 (1993). In the present appeal, he raises five points for reversal.

Aaron’s first three points argued in this appeal were never ruled on by the trial court below. He raised these issues in a pro se pretrial motion at his second trial, but his later-acquired attorney failed to present the motion to the trial court. While he concedes no ruling was obtained on his motion, Aaron requests we consider those issues as “plain error.” We do not have a plain error rule, but instead have consistently held that the burden of obtaining a ruling is upon the movant, and unresolved questions and objections are waived and may not be relied upon on appeal. Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993); Wilson v. State, 272 Ark. 361, 614 S.W.2d 663 (1981).

Aaron’s fourth point is that, contrary to Ark. R. Evid. 404(b), the trial court impermissibly allowed testimony that led the jury to believe Aaron had previously been arrested. Specifically, state witness Officer Darren Warren testified to the events leading to Aaron’s arrest, and stated that the rape and kidnap victim said that she remembered her attacker as being about thirty-five years old, that his last name was Aaron and that Aaron said he was a plumber. Warren related that, when investigating the crimes, he called the dispatchers and had them check the computer for people fitting the description he had obtained. On direct examination, Warren stated that the dispatcher informed him of one person in that age group, giving Aaron’s name and address. Warren continued by stating, “The arrest report that we had showed, or the information we had and records showed he (Barry Aaron) was a plumber.” Defense counsel waited until the end of Warren’s direct examination before interposing the objection that Officer Warren had improperly referred to an “extraneous offense.”

Initially, we conclude that Aaron failed to object at the first opportunity and waived any right to raise his point on appeal. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). Secondly, we point out that Warren never mentioned any prior offense in his direct examination, but that, even if Warren’s reference to an arrest report could be said to be error, such error was harmless. The defense and the state stipulated that Aaron had been convicted of a felony in 1988 and, without objection, the jury was informed of that felony conviction.

Aaron’s final issue is that it was “plain error” to sentence him as a habitual offender at retrial when he had not been tried as a habitual offender at his first trial. At his first trial, Aaron received consecutive sentences of forty years for kidnapping and life imprisonment for rape, and after conviction for these crimes on retrial, he received two life sentences to be served consecutively. Defense counsel’s entire objection was as follows:

“We may raise an objection to the life sentences being concurrent — I mean consecutive. I think that’s more of a sentence than was imposed on him in the first trial. I think we need to raise an objection to that at this time.”

Clearly, under Ark. Code Ann. § 5-4-403 (1987), the trial judge has the discretion to impose consecutive sentences. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). While Aaron now argues his sentencing violated his Due Process rights and subjected him to Double Jeopardy, he never raised those arguments at trial and this court has repeatedly held that even constitutional rights are waived on appeal if not argued below. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). Aaron also suggests that the state, at retrial, was improperly allowed to amend its information to try him as a habitual offender. However, as Aaron freely concedes, the state attempted to try him as a habitual offender at his first trial, but the trial court sustained Aaron’s objection, ruling the state’s attempt was untimely. Upon retrial, the state merely corrected its oversight at the first trial. In sum, Aaron failed to show any prosecutorial vindictiveness or other reason reflecting the trial court abused its discretion in permitting the state to amend its information. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections decided adversely to Aaron and no reversible error is found. For the reasons above, we affirm.

       New and present counsel was appointed to represent Aaron in this appeal.


text:
    Robert Dale ROWLINS v. STATE of Arkansas
    CR 94-1036
    891 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Robert Rowlins appealed his municipal court conviction for DWI to the Washington County Circuit Court where a bench trial was held by Judge William Storey. At the circuit court trial, the state asked Officer Gunter Lindermeyer questions, concerning the officer having found Rowlins in his car parked with its motor running. Lindermeyer said that he requested Rowlins to get out of his car, and after observing Rowlins and testing him, Lindermeyer concluded Rowlins was under the influence of THC in combination with alcohol. Rowlins’s counsel cross-examined the officer’s testimony concerning THC. Then Judge Storey asked his own questions, requesting Lindermeyer to explain what THC was and what the significance was of the tests mentioned by Lindermeyer. Rowlins’s counsel objected to Judge Storey’s questions and this colloquy occurred:

Defense Counsel: Your Honor, I’m going to object. I think at this point, Judge, you’re asking the questions that the prosecutor should have asked and I believe that you need to decide this case on the facts as presented to the case (sic). You’re the trier of facts today. If we had a jury here instead, that jury would not be able to sit here and question that officer in the manner in which you’re doing and I object to the Court doing that.
Judge Storey: (Brief pause.) That’s a good point, Mr. Norwood. I’ll tell you what I’m going to do, I’m going to declare a mistrial in this case and I’m going to assign it to another court and recuse and it’ll be for another judge.
Defense Counsel: Thank you, Your Honor. I appreciate that.
Judge Storey: Alright, Court will stand in recess.

About two weeks after Judge Storey recused, a new hearing commenced with Judge David Burnett presiding. Judge Burnett, circuit judge for the second judicial circuit, was on exchange to Washington County Circuit Court pursuant to Ark. Code Ann. § 16-13-403 (Repl. 1994) and Ark. Const, art. 7, § 22. Before the hearing, defense counsel asked Judge Burnett if the exchange agreement between Storey and Burnett had been reduced to writing, and Judge Burnett responded in the affirmative. Rowlins’s counsel asked that the agreement be placed in the case file and Judge Burnett agreed to make it a part of the record to which counsel said, “Thank you, your honor.” The agreement was, in fact, filed the day of the hearing. At the same hearing, defense counsel interposed an objection, claiming double jeopardy. In this respect, Rowlins argued that, without notice, Judge Storey had declared a mistrial and as a consequence, double jeopardy precluded a retrial. Judge Burnett denied Rowlins’s double jeopardy claim and Rowlins brings this appeal from Judge Burnett’s final order on that issue. See Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992).

In this appeal, Rowlins resumes his argument made below that, when Judge Storey declared a mistrial, double jeopardy precluded any retrial unless the mistrial was for a manifest necessity. Rowlins argues no manifest necessity existed and, in fact, states that when Judge Storey declared a mistrial, there was nothing in the record indicating that Judge Storey was favoring one side or the other by his questions.

Under Ark. Code Ann. § 5-1-112(3) (Repl. 1993), a retrial of a defendant is not permitted if a former prosecution was terminated without the express or implied consent of the defendant unless the termination was justified by overruling necessity. Here, as set out above, Rowlins greeted Judge Storey’s mistrial decision and ruling to recuse by saying, “Thank you, your honor. I appreciate that.” Surely, no more is required to show Rowlins’s agreement with Judge Storey’s decisions. While Rowlins now argues he believes Judge Storey’s questions were not meant to favor the state, Rowlins, when he interposed his objection, admonished Judge Storey that he was asking questions the prosecutor should have asked. Rowlins reminded Storey that as judge, he was the trier of the facts and should decide the case on the facts presented. Rowlins claims he was “caught off guard” by Judge Storey’s mistrial ruling, but our review of the record reflects Rowlins had ample opportunity to apprise Judge Storey that Rowlins was not seeking or agreeing to such relief. Instead, defense counsel’s express response indicated he agreed with Judge Storey.

In his second argument, Rowlins contends the exchange agreement entered into by Judges Storey and Burnett pursuant to § 16-13-403 was unlawful because Ark. Code Ann. § 16-13-1203 (Repl. 1994) provides that voters of the fourth judicial district (which includes Washington County Circuit Court) must elect the judges who preside over all cases arising within the district. In sum, Rowlins asserts these two statutes are conflicting and § 16-13-1203 should control. This argument is meritless. Ark. Const, art. 7, § 22 clearly provides that the circuit judges may temporarily exchange circuits or hold court for each other under such regulations as may be prescribed by law. Section 16-13-403 merely implements that constitutional mandate allowing for temporary exchanges between districts or circuits. Before leaving this point, we mention Rowlins actually requests that this court issue a writ of mandamus requiring compliance with § 16-13-1203. However, because § 16-13-403 is applicable, not § 16-13-1203, that request is denied.

Finally, Rowlins claims the exchange agreement between the two judges was void because it was open-ended, contained no limitation as to cases or time, and the agreement was not timely filed. None of these points were raised below, and this court has held that a presumption is indulged that an exchange agreement by the regular judge and presiding judge is regular and in compliance with the statutes, and cannot be questioned for the first time on appeal. Boyd v. Matthews, 239 Ark. 112, 388 S.W.2d 102 (1965).

We have also held that, while § 16-13-403 mandates that the judges, agreeing to exchange a case, sign the agreement and enter it on the record, such non-jurisdictional error may be waived. Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993). That is the situation in the case here.

For the reasons discussed above, we affirm.


author: Donald L. Corbin, Justice.

text:
    AAA BAIL BOND COMPANY v. STATE of Arkansas
    94-704
    891 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Robert S. Blatt, for appellant.

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

Appellant, AAA Bail Bond Company, appeals an order of bail bond forfeiture and partial remittance entered by the Sebastian County Circuit Court against it as surety on its bail bond agreement respecting Michael Lee Varnardo as bond principal following Varnardo’s nonappearance before the circuit court at a required hearing. Appellant argues the judgment is invalid because, pursuant to Ark. Code Ann. § 16-84-201(c) (Supp. 1993), no forfeiture judgment may be entered against it on the facts of this case. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3). We agree with appellant’s argument and reverse the trial court’s judgment.

The facts of this case are not in dispute. Varnardo entered a plea of nolo contendere to one felony count of theft of property, with respect to which the circuit court, by its order entered on February 9, 1993, withheld imposition of sentence on condition of Varnardo’s good behavior and other written terms and conditions as set out by the court. On April 28, 1993, the prosecuting attorney filed a petition to revoke, alleging Varnardo’s failure to comply with the terms of the order. On the same date, a bench warrant issued for Varnardo’s arrest and for his admission to bail in the sum of $2,000.00, and was returned by the Sebastian County Sheriff, dated May 27, 1993, stating Varnardo had been served and was bonded by appellant. On October 11, 1993, a hearing on the petition to revoke was scheduled before the circuit court, but Varnardo failed to appear.

By its order entered on February 25, 1994, the circuit court issued an arrest warrant for Varnardo for his failure to appear at the October 1993 court hearing, and summonsed appellant to show cause why the court should not order a judgment of bond forfeiture against it in the amount of $2,000.00. The show cause order cited as its statutory authority “Ark. Code Ann. 16-84-401 (Act 417 of 1989).” The order/summons was served on appellant on February 28, 1994. On March 15, 1994, appellant filed a “Statement of Arrest and/or Surrender” setting forth a body receipt for Varnardo signed by the Crawford County Sheriff’s Office, dated March 14, 1994.

The show cause hearing was conducted on April 6, 1994. The only evidence abstracted therefrom is the testimony of Chris Keeton, appellant’s local representative, who stated that he made bond for Varnardo, that the only written notice of the “alleged show cause notice” was a writing filemarked “February twenty-fifth,” and that he surrendered Varnardo to the Crawford County Jail on March 14, 1994. On cross-examination, Keeton testified that he had actual knowledge in October 1993 of defendant’s failure to appear for the scheduled hearing that month on the petition to revoke. By its order entered on April 8, 1994, the circuit court ordered an original bond forfeiture of $2,000.00 in favor of the State of Arkansas and that the sum of $500.00 should be remitted from the forfeiture. This appeal is taken from that order.

Appellant’s sole argument is that section 16-84-201 (c) controls this case and precludes entry of a judgment of bond forfeiture on these facts. Section 16-84-201 provides in pertinent part, as follows:

(a) If the defendant fails to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, . . . the court may direct the fact to be entered on the minutes, and shall issue an order requiring the surety to appear, on a date set by the court not less than ninety (90) days nor more than one hundred twenty (120) days after the issuance of the order, to show cause why the sum specified in the bail bond . . . should not be forfeited. . . .
(c) If the defendant is surrendered, arrested, or good cause is shown for his failure to appear before judgment is entered against the surety, the court shall exonerate a reasonable amount of the surety’s liability under the bail bond. However, if the surety causes the apprehension of the defendant, or the defendant is apprehended within one hundred twenty (120) days from the date of receipt of written notification to the surety of the defendant’s failure to appear, no judgment or forfeiture of bond may be entered against the surety, except as provided in subsection (e) of this section.
(e) [Not applicable to the instant case.] [Emphasis added.]

Comparing the terms of the second sentence of section 16-84-201(c) with the facts of this case, appellant’s sole argument is that the first written notice of Varnardo’s failure to appear at the October 1993 hearing was received by appellant on February 28, 1994, that within 120 days thereafter Varnardo was apprehended, and that a plain reading of the statute then requires that no bond forfeiture judgment may be entered against appellant. We agree.

A short review of the history of section 16-84-201(c) is useful. Until 1989, the statutory predecessor to our present section 16-84-201(c) provided that in an action by the state on a bail bond against the surety, the trial court had discretion to remit the whole or a part of the amount specified in the bond agreement if the defendant was surrendered or arrested prior to entry of the forfeiture judgment against the surety. Section 16-84-205 (1987) (formerly Ark. Stat. Ann. § 43-729).

In 1989, however, the General Assembly amended this provision to require the trial court to exonerate a reasonable amount of the surety’s liability under the bail bond if, prior to entry of the judgment against the surety, the defendant was surrendered, arrested or good cause was shown for his nonappearance. Act 417 of 1989, § 1, Subchapter 4 (codified as section 16-84-201(c) (Supp. 1989)).

In 1991, the General Assembly again amended section 16-84-201(c) to add a new second sentence to provide that, after the defendant’s nonappearance, if the surety caused the apprehension of the defendant or the defendant was apprehended within 120 days from the date of his failure to appear, no judgment or forfeiture of the bond could be entered against the surety, except as provided in subsection (e) of the statute. Act 991 of 1991, § 1.

Finally, in 1993, the General Assembly most recently amended section 16-84-201(c) to read in its current form. The 1993 amendment revised the second sentence of subsection (c) to provide that if the surety caused the apprehension of the defendant or the defendant was apprehended within 120 days from the date of receipt of written notification to the surety of the defendant’s failure to appear, no judgment or forfeiture of bond could be entered against the surety, except as provided in subsection (e) of the statute. Act 841 of 1993, § 1. The provisions of Act 841 became effective in August 1993, shortly before Varnardo’s failure to appear at the scheduled October 1993 court hearing which resulted in the disputed bond forfeiture order.

Appellee argues that inasmuch as appellant admits it had actual knowledge of defendant’s nonappearance as early as October 1993, the statutory written notification requirement was “substantially complied with;” hence, appellant should not be permitted to utilize the statute to avoid its bond liability. Appellee also argues that the General Assembly’s intent with respect to the written notification amendment was to inform sureties who would otherwise be unaware of the nonappearance of the bond principal; hence, as appellant had actual notice of Varnardo’s nonappearance, the intended statutory protection for this surety was not necessary. We find appellee’s arguments, for which it recites no authority, are not persuasive in view of the statute’s clear and express requirement that written notification of Varnardo’s nonappearance be given to appellant to commence the 120-day period.

The trial court’s order is reversed and remanded for the trial court to enter an order in accordance with this opinion.


text:
    Bobby CAMPBELL v. STATE of Arkansas
    CR 94-891
    891 S.W.2d 55
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Tom Garner, for appellant.

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

Appellant, Bobby Joe Campbell, appeals a judgment of the Izard County Circuit Court convicting him of one count of commercial burglary, three counts of breaking and entering, and two counts of theft, and sentencing him, as a habitual offender, consecutively to a cumulative term of thirty-five years imprisonment, with thirty-three years to be served in the Arkansas Department of Correction and two years to be served in the Izard County Jail. All convictions resulted from a single incident occurring October 19, 1993, when appellant and two others, Jerry Forrester and Casey Burris, stole quarters from a laundromat office and various machines including the washers and dryers. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.

The sole point urged for reversal in this case is that the trial court erred in denying appellant’s motion for directed verdict by holding that state’s witness Philip Naylor was not an accomplice. We observe this argument is based on a false premise. The trial court never ruled Naylor was not an accomplice because appellant never requested a ruling on this issue. The state contends this argument is not preserved for our review because appellant failed to move for a directed verdict on the specific grounds now argued on appeal. We agree that appellant did not raise this specific argument below. Appellant has therefore waived this argument on appeal.

Our law is well established that a directed verdict motion is treated as a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. See, e.g., Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994); Stricklin v. State, 318 Ark. 36, 883 S.W.2d 465 (1994). Our law is equally well established that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound on appeal' by the scope and nature of the objections and arguments presented at trial. See, e.g., Stricklin, 318 Ark. 36, 883 S.W.2d 465. Consistent with these principles of law, we have held that the failure to include accomplice testimony as a specific ground for a directed verdict was insufficient to raise the issue on appeal. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).

At the close of the state’s evidence, appellant made a general motion for directed verdict based on insufficient evidence of all the crimes charged against him. While appellant’s counsel specifically addressed each count charged against appellant, the arguments made in support of the directed verdict motion on each count were general arguments of insufficiency rather than the identification of particular or specific missing elements of proof. With respect to the burglary charge, appellant’s counsel stated that the only evidence presented was the testimony of co-defendant Forrester and then acknowledged that Naylor did offer testimony on this charge as well. However, appellant’s counsel did not argue, as he does now on appeal, that Naylor was an accomplice or that the evidence offered against appellant was insufficient because it was produced entirely from accomplices and therefore required corroboration consistent with Ark. Code Ann. § 16-89-111(e) (1987). Moreover, after the trial court stated sua sponte that Naylor’s testimony provided corroboration of testimony by appellant’s co-defendants, appellant’s counsel never objected nor requested the trial court to rule Naylor was an accomplice. At the close of all the evidence, appellant simply renewed his previous motions for directed verdict and did not present any specific basis for the motions.

Additionally, we note that although appellant bears the burden of proving Naylor was an accomplice whose testimony must be corroborated, Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993), appellant’s counsel never asked the court to rule Naylor was an accomplice, nor did he request an instruction that the jury determine Naylor’s status as an accomplice, nor did he request an instruction that the testimony of an accomplice required corroboration.

In summary, while appellant did make a timely motion for directed verdict, it was made only on general insufficiency grounds, which does not preserve for our review the particular argument now raised. Jones, 318 Ark. 704, 889 S.W.2d 706. Accordingly, he has waived this argument on appeal and the judgments of conviction are affirmed.


author: Robert L. Brown, Justice.

text:
    Robert L. ROCKETT, III and Terrick T. Nooner v. STATE of Arkansas
    CR 94-578
    891 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Joe Kelly Hardin, for appellants.

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

This case involves the joint appeals of appellants Robert L. Rockett, III, and Terrick T. Nooner, both of whom were convicted of aggravated robbery and sentenced to life imprisonment. Rockett and Nooner raise multiple points in their respective appeals, but finding no merit in any point raised, we affirm.

On March 23, 1993, at approximately 10:15 p.m., a woman, later identified as Antonia Kennedy, approached the door of the Pizza Hut in the City of Bryant. She asked to use the restroom facilities. When informed that the business was closed, she returned to her car and left. Shortly thereafter, a Pizza Hut employee, Jason Beard, went outside to throw away the trash. When he reentered the store, two men wearing blue masks followed him inside. One of the men was wearing socks on his hands; the other gloves. The two masked men directed Beard and five teenagers in the restaurant to the back of the store. One of the masked men carried a pistol with chrome or nickel plate and threatened to shoot the hostages if they did not cooperate. The robber without the handgun began hitting and kicking several of the teenagers. At one point, he stated: “Let me shoot one of them.” The men took money and jewelry from the teenagers and then placed them in the walk-in freezer. After that, they fled the premises.

Two days later, on March 25, 1993, Officer Greg Baugh of the Jonesboro Police Department was patrolling the Motel 6 parking lot in Jonesboro when he discovered a car which, upon checking, proved to be stolen. Officer Baugh parked his police car in the motel parking lot, got out of the vehicle, and stepped underneath the motel balcony so that he would be out of view. He then noticed the reflections of three or four persons walking along the balcony on the second floor of the motel. When they saw his patrol car, they stopped abruptly and began to whisper. He stepped out from under the balcony and watched all but one of the persons walk into a motel room. Rockett was later identified as the person who remained standing outside the room.

Officer Baugh then requested Rockett to come down and talk. Rockett wanted to go inside the motel room and put on his shoes. Officer Baugh refused to let him do this and again requested him to step down and talk with him. Rockett became very nervous and fled. At that point Officer Baugh drew his pistol. The officer ran up the stairs with his pistol drawn and arrested the three people in the motel room. Nooner and Antonia Kennedy were two of the three people in the motel room. When Officer Baugh asked them their names, Nooner gave him a false name. Backup police officers arrived, and a search of the room was conducted. A pair of gloves and a blue ski mask were found in the room, and a pistol with nickel plate was located in the bathroom. A search of the stolen car revealed another blue ski mask. Rockett eventually returned to the motel and was arrested. Rockett, Nooner, and Antonia Kennedy were later charged with aggravated robbery, aggravated assault, and kidnapping associated with the Pizza Hut robbery in Bryant.

Prior to trial, Rockett and Nooner each moved for a severance of their trials. The trial court denied the motions. Before voir dire commenced, both men again moved for a severance of their trials when the trial court limited them to a total of eight peremptory strikes. The trial court denied the motions. Twice, during the course of the trial, the severance motion was renewed by Rockett in regard to references that Nooner currently was incarcerated on “death row.” Each time the motion was denied.

At trial, the six persons inside the Pizza Hut testified to the events that transpired that night. They identified Antonia Kennedy as the woman who came to the Pizza Hut, and one of the victims, Sandy Dotson, testified that she had a ring stolen from her that night. A ring, identified by Dotson as hers, was later introduced into evidence through Jazmier Kennedy, who was the girlfriend of Rockett and the sister of Antonia Kennedy. She testified that Rockett gave her the ring.

Antonia Kennedy turned state’s evidence and testified that she drove Rockett and Nooner to the Pizza Hut in Bryant. She stated that it was she who tried to use the restroom and was refused. She then returned to the car and pulled into a church parking lot nearby. At that time, Rockett and Nooner got out of the car. When they returned, they were carrying masks, and Rockett was carrying a handgun. They told her to “drive like she never drove before.” She drove them back to North Little Rock where they handed her a $100 bill. She stated that she left after that. At the close of the State’s case, the State dropped the aggravated assault and kidnapping charges against the appellants, leaving only the aggravated robbery charges intact.

Rockett presented no witnesses on his behalf, but Nooner took the stand, against advice of counsel, and claimed that he was working the night of the robbery and that he did not commit the crime. He advised the jury not to believe Antonia Kennedy and added that he was on death row based on her false testimony given during the trial of another crime. The jury returned guilty verdicts against both men, and they were sentenced to life in prison.

I. MOTIONS FOR DIRECTED VERDICT

Each appellant contests the trial court’s denial of his motion for a directed verdict which we consider prior to the assertion of other trial error. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994); Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994). Directed verdict motions must be specific and must apprise the trial court of the particular point raised. See Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992). The only specific point raised in the directed verdict motion made by either man related to the State’s failure to produce evidence to corroborate the testimony of Antonia Kennedy, who they contend was a known accomplice. Accordingly, that is the only issue which we will consider.

A procedural deficiency precludes our review of this point, however. Neither Rockett nor Nooner requested that the trial court declare Antonia Kennedy to be an accomplice as a matter of law or that the issue of her accomplice status be submitted to the jury as a factual dispute. See Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990); Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). This court has made it clear that a person must first be found to be an accomplice under Ark. Code Ann. § 5-2-403 (Repl. 1993) for the requirement of corroborative evidence to come into play under Ark. Code Ann. § 16-89-111(e)(1) (1987). Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). We have further made it clear that it is the burden of the defendant to prove that a witness is an accomplice whose testimony must be corroborated. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). Because Rockett and Nooner did not seek a determination that Antonia Kennedy was an accomplice either from the trial court or the jury, the issue of corroborative evidence cannot be raised for the first time on appeal, and we refuse to address it.

II. SUPPRESSION OF EVIDENCE

For their next point Nooner and Rockett contend that the trial court erred in failing to suppress the admission of the ski masks, gloves, and pistol seized in the Motel 6 room and stolen car in Jonesboro without an arrest warrant or search warrant. This issue has three components.

First, with regard to Rockett we have previously decided this issue in a case concerning the same search but in connection with an entirely separate crime. See Rockett v. State, 318 Ark. 83, 883 S.W.2d 478 (1994). In that case, we acknowledged that one registered at a motel as a guest is protected against unreasonable searches and seizures. See Stoner v. California, 376 U.S. 483 (1964); Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). We held, however, that Rockett, in whose name the motel room was registered, abandoned his interest in the room by fleeing from Officer Baugh and thus lacked standing to raise the issue of any expectation of privacy he had regarding it. That holding decides the issue which is raised by Rockett a second time in the case before us.

With respect to Nooner, who was found inside the motel room after Rockett fled, he never proved an expectation of privacy in the room. See Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). It is clear that a proponent of a motion to suppress has the burden of establishing that Fourth Amendment rights have been violated. Rakas v. Illinois, 439 U.S. 128 (1978). Those rights are personal in nature. Id.; State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986). Here, the room was registered in Rockett’s name — not Nooner’s. And Nooner failed to present any evidence that he spent anything other than a brief period of time in the room. There was only Antonia Kennedy’s general testimony that the four of them had gone to the Motel 6 the day before. The facts in Johnson v. State, supra, are comparable. In that case the motel rooms involved also were not registered in the appellant’s name, and there was no proof that he did anything other than go into the rooms for brief periods of time. We concluded that Fourth Amendment rights did not stretch that far, and that there was no establishment of a legitimate expectation of privacy. In short, in the present case more was needed to establish a privacy interest in the room. Nooner failed to present sufficient proof to support his standing to raise the issue of an unreasonable search and seizure.

Lastly, with respect to the stolen car in which a ski mask was found neither appellant could claim a legitimate privacy interest in the stolen car; indeed, during the trial both men eschewed any association with the vehicle. In order to have standing to object to the search of a vehicle, Rockett and Nooner must have either owned it or had lawful possession of it. See Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993); Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990). Here, they failed on both counts. We conclude that the appellants’ suppression arguments have no merit.

III. SEVERANCE

Both Rockett and Nooner filed pretrial motions for a severance of their trials based upon an inability to receive a fair trial. Both motions were denied. Prior to the day of the trial, Nooner moved for severance and premised his argument on the fact that he would be prejudiced by Jazmier Kennedy’s testimony that she received a ring from Rockett and that that ring was taken from one of the Pizza Hut victims. The motion was denied. Nooner then made severance motions twice on the day of the trial before and after voir dire — once in connection with peremptory chailenges and once without specifying the grounds — but he failed to raise the motion pertaining to the ring testimony again. That is the issue which he now raises on appeal. Our rule is clear that failure to renew a severance motion “before or at the close of all the evidence” constitutes a waiver of the issue. Ark. R. Crim. R 22.1(b); see also Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994). Nooner, as a result, failed to preserve this severance issue relating to the ring testimony for appeal.

Rockett, on the other hand, made a severance motion solely with regard to the effect of the jury’s knowledge of Nooner’s incarceration on death row after Nooner’s counsel advised the prospective jurors during voir dire that Nooner was on death row and renewed the motion during testimony, though not at the end of all the evidence. After the State rested, and after Nooner announced that he would testify against advice of counsel, Rockett made his severance motion again. Nooner then went on to testify that before the Pizza Hut incident he had just been released from prison, that he had been charged with other crimes, and that he was currently on death row because of Antonia Kennedy’s testimony. The trial court immediately admonished the jury:

Now, ladies and gentlemen, I want to remind you once again. There are two separate defendants here and keep that in mind when you ferret through all the testimony and remember that there is certain testimony that applies only to Mr. Nooner and certain testimony that applies only to Mr. Rockett, and please keep those things separated in your minds.

Rule 22.1(b) does not require that a motion to sever be renewed at the end of all the evidence but “before” or at the close of all proof. We have said that Rule 22.3 of the Arkansas Rules of Criminal Procedure gives the trial court broad discretion in determining whether to grant or deny a motion to sever. Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991). We have also defined the test in deciding a severance motion and the factors to be weighed in assessing it:

The issue of severance is to be determined on a case by case basis, considering the totality of the circumstances, with the following factors favoring severance: (1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against the other.

Cloird v. State, 314 Ark. 296, 301, 862 S.W.2d 211, 213 (1993), citing Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214 (1986).

The information that the jury received regarding Noon-er’s conviction and status on death row falls within the ambit of criterion (6), but we conclude that the trial court did not abuse its discretion in denying Rockett’s motion to sever. First, a prior criminal record of a co-defendant is only one of multiple factors to be considered. Secondly, the trial court immediately elected to instruct the jury that they must judge each defendant separately. The court made that instruction at the beginning of the trial and at the close of all the evidence. With these instructions, we are of the opinion that the trial court sufficiently offset any prejudice that might have accrued based on Nooner’s testimony. There was no abuse of discretion in the decision not to sever the trials.

IV. IN-COURT IDENTIFICATION

For their last arguments, Nooner and Rockett urge that the trial court erred in allowing witnesses to identify Antonia Kennedy in the courtroom in the presence of the jury. The appellants contend that this procedure was highly suggestive because Antonia Kennedy was the only black woman in the courtroom and because the procedure created a substantial possibility of misidentification.

We observe that when the first in-court identification took place, only Nooner’s attorney objected to the identification as being an “improper type lineup.” Rockett’s attorney did not object, thereby waiving any objection to the identification due to failure to make a timely objection. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993). In this regard, we have further held that a co-defendant cannot benefit from objections made by another defendant. Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992). It was Rockett’s duty to make a timely and complete objection to the admission of the evidence. Gonzalez v. State, 306 Ark. 1, 811 S.W.2d 760 (1991).

When the State requested a second in-court identification of Kennedy by a victim, it was Rockett who said “same objection,” and Nooner who remained silent. As already indicated, in this instance Nooner could not benefit from that objection. Before the third in-court identification occurred, Nooner made his objection once more and asked that it be continuing. Rockett said nothing.

We note initially that Antonia Kennedy had already testified for the State and admitted that she was the woman at the Pizza Hut. The three in-court identifications were, therefore, redundant to this testimony. Furthermore, evidence admitted without objection that is merely cumulative or repetitious cannot be claimed to be prejudicial. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). As neither appellant sufficiently objected to all in-court identifications, an assertion of prejudice cannot be made. And, finally, Rockett and Nooner argue on appeal that the in-court identifications were suggestive and that there was a chance of misidentification. These precise arguments were not made to the trial court and are not preserved for appeal. We find no grounds for reversal on this point.

The record in this case has been reviewed pursuant to Supreme Court Rule 4-3 (h) for other prejudicial error, and no such error has been found.

Affirmed.

       At various places in the record, her name is also spelled Antonio Kennedy.


author: Per Curiam.

text:
    Michael James TANNER v. STATE of Arkansas
    CR 94-1261
    891 S.W.2d 59
    Supreme Court of Arkansas
    Opinion delivered January 23, 1995

      Hatfield & Lassiter, by: Jack T Lassiter and Kenneth E. Suggs, for appellant.
    No response.
   Per Curiam.

In accordance with our per curiam delivered on December 5, 1994, trial counsel accepts responsibility for failing to file a timely appeal in this cause. Therefore, we grant Tanner’s motion for rule on the clerk and direct the clerk to forward a copy of the court’s opinion to the Committee on Professional Conduct.


author: Robert H. Dudley, Justice.

text:
    Vernell DIXON v. STATE of Arkansas
    CR 94-923
    891 S.W.2d 59
    Supreme Court of Arkansas
    Opinion delivered January 30, 1995

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

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The State charged appellant with committing capital felony murder during the course of, or while fleeing from, an aggravated robbery. The State separately charged appellant with aggravated robbery. The jury found him guilty of both capital murder and aggravated robbery. The underlying aggravated robbery felony was an essential element of the capital murder, and appellant could not be punished for both crimes. See Ballew v. State, 298 Ark. 175, 766 S.W.2d 14 (1989); Ark. Code Ann. § 5-1-110(a)(l)&(b)(l) (Repl. 1993). The trial court correctly entered the judgment of conviction for capital murder only and sentenced appellant to life without the possibility of parole. On appeal, appellant contends the evidence was insufficient to convict him of capital murder. We affirm the judgment of conviction.

Appellant gave three statements to the police, and all three were admitted into evidence. In the statements, appellant admitted the following: he and Lorenzo files discussed robbing Donald Weems; he purchased a .25 caliber semi-automatic pistol from a pawn shop; he and files lured Weems to the back of appellant’s apartment on Gaines Street in Little Rock; in his presence, files shot Weems in the head with the .25 caliber pistol; files took the decedent’s wallet and gave him forty dollars; he and files loaded Weems’s body into the trunk of Weems’s'car, and he placed a gasoline can in the car; he drove the car to his grandfather’s farm near Dermott where he and files unloaded Weems’s body on a field turn-row; files poured gasoline on the body and set it on fire; and he drove files back to Little Rock.

Other witnesses testified to the following corroborating events. On the night Weems was killed, appellant phoned Weems and asked him to come to his apartment, and Weems was subsequently seen at appellant’s apartment. Appellant was driving Weems’s car when stopped by police a day after the body was found; Weems’s car title and bill of sale were in the car, but a line had been drawn through Weems’s name and appellant’s name had been written over Weems’s name. Appellant said he did that because he “was just seeing how it looked.” Both expended hulls and unexpended .25 caliber cartridges were found in the car trunk along with blood spots; expert testimony established that Weems died from being shot with a .25 caliber weapon, and additional expert testimony established that the shot that killed Weems was fired from the .25 caliber pistol that appellant purchased from the pawn shop.

Appellant argues that he did not assist in the robbery with the purpose of killing Weems, and, consequently, he was not an accomplice to capital murder. It does not matter that he did not intend to kill Weems. Under the capital murder statute, Ark. Code Ann. § 5-10-101(a)(l) (Repl. 1993), it is not necessary that the State show that the defendant took an active part in the killing so long as he assisted in the commission of the underlying crime. Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989). A defendant must only have the requisite intent for the underlying felony. Substantial evidence established appellant as an accomplice to the underlying aggravated robbery, and it was committed under circumstances manifesting extreme indifference to the value of human life. We have repeatedly held that, to be convicted of a felony murder, it is not necessary that the defendant be shown to have taken an active part in the killing as long as he was an accomplice and had the requisite intent for the underlying felony. See, e.g., Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992).

Appellant asks us to distinguish this case from our prior holdings because, he contends, his role in the crime was of a nonviolent nature. We decline to overrule our prior cases by making such a distinction. This case is exactly the kind of case we intend our rulings to govern. See Sellers, 300 Ark. 280, 778 S.W.2d 603. Appellant also asks us to distinguish this case because, he contends, he was unaware that the victim would be killed in the aggravated robbery. Again, we decline to make such a distinction. The proof showed that appellant was an accomplice and had the requisite intent for the aggravated robbery, supplied the .25 caliber pistol used in the robbery, and was present when the victim was killed in the course of the robbery. Such proof is sufficient to sustain the conviction for capital'felony murder. Walker, 308 Ark. 498, 825 S.W.2d 822.

In compliance with Rule 4-3(h) of the Rules of the Supreme Court and Court of Appeals, an examination has been made of all rulings adverse to appellant, and no reversible error was found.

Affirmed.