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

text:
    Loraine RUFFINS, Administrator of the Estate of Gary Ruffins, Deceased v. ER ARKANSAS, P.A.; David C. Beam, M.D.; Robert L. Parker, M.D.; Lowell V. Ozment, M.D., et al.
    92-949
    853 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered May 17, 1993
    [Rehearing denied June 21, 1993.]

      John W. Walker, P.A., by: Wiley A. Branion, Jr., for appellant.

      Shackleford, Shackleford & Phillips, P.A., by: Dennis L. Shackleford, for appellee ER Arkansas, P.A.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Richard L. Angel, for appellee David C. Beam, M.D.

      McMillan, Turner & McCorkle, by: F. Thomas Curry, for appellee Robert L. Parkman, M.C.

      Friday, Eldredge & Clark, by Phillip Malcom, for appellee Lowell V. Ozment, M.D.

      Corbin and Brown, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

Plaintiff, the administrator of the decedent’s estate, filed this action against the defendants, ER of Arkansas, an emergency medical care professional association, and David Beam, Robert Parkman, and Lowell Ozment, medical doctors. The gravamen of the complaint is that the defendant doctors failed to properly diagnose and treat the deceased, failed to refer him to others for proper care, and that their negligence resulted in the death of the decedent. The prayer for damages asks only for those damages which can be assessed under the wrongful death statute. Plaintiff filed this action after the two-year statute of limitations provided by the Medical Malpractice Act had run, but before the three-year statute of limitations provided by the Wrongful Death Act had run.

Some time later, and after the three-year statute of limitations for wrongful death had also passed, the defendant doctors each filed, either motions to dismiss or motions for summary judgment and alleged that the plaintiff had not complied with the notice provisions of the Medical Malpractice Act. The plaintiff responded that she filed suit for wrongful death within the three-year limitation period and did not have to comply with the notice provisions of the Medical Malpractice Act, contained in Ark. Code Ann. § 16-114-204 (Supp. 1991). The trial court ruled that the plaintiffs suit had not been commenced before the running of the statute of limitations under the then existing law because the plaintiff had not given notice of intent to sue as required by the Medical Malpractice Act before the statute of limitations ran. Accordingly, the trial court dismissed the suit. Plaintiff appeals. We affirm the ruling of the trial court.

As a preliminary matter we note that in view of our decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), this decision has very little significance as a precedent. It is, however, obviously significant to the parties, and fairness requires that we apply the law extant at the time this case was tried.

The Medical Malpractice Act, which was enacted in 1979, provides that it applies to all causes of action for medical injury. Ark. Code Ann. § 16-114-202 (1987). An “action for medical injury” is “any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury,” Ark. Code Ann. § 16-114-201(1) (1987), and the act “applies to all causes of action for medical injury.” Ark. Code Ann. § 16-114-202 (1987) (emphasis added). A medical injury is defined as “any adverse consequence arising out of or sustained in the course of professional services being rendered by a medical provider.” Ark. Code Ann. § 16-114-201(3) (1987). Thus, the statute, by its clear language, applies to the facts of this case, and, under the then existing law, Ark. Code Ann. § 16-114-204 (1987), written notice of intent to sue “within 60 days of the expiration of the period for bringing suit” was required. Significantly, the statute additionally contains the provision that it “shall supersede any inconsistent provision of law.” Ark. Code Ann. § 16-114-202 (1987). Nothing more need be said about the Medical Malpractice Act. Its language is clear, and it mandates that the ruling of the trial court be affirmed.

The plaintiff-appellant tacitly asks us to ignore the clear language of the statute by arguing that our cases have recognized that medical malpractice and wrongful death are separate causes of action even though they may arise from the same negligent act and asserts this action is solely one for wrongful death. Accordingly, she contends that she did not have to give the “notice of intent to sue” that is required by the Medical Malpractice Act at Ark. Code Ann. § 16-114-204. She bolsters her argument by quoting a sentence of dictum from Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1991), that states the Medical Malpractice Act is irrelevant to wrongful death actions.

In order to decide the issue, it is first necessary for us to look at our cases and fairly determine what they held. In Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), which was decided before the current Medical Malpractice Act became law, the complaint was for a medical injury. The question on appeal was whether the then existing medical malpractice statute of limitations or the wrongful death statute of limitations should apply. Recognizing that medical malpractice and wrongful death were separate statutory actions with conflicting limitations provisions, we said that “each statute is partly controlling.” Id. at 249, 432 S.W.2d at 487. We chose to apply the wrongful death statute of limitations, which was more liberal, on policy grounds. However, that holding does not decide the issue in this case. The issue here, regardless of which statute of limitations controls, is whether the then required notice provision of the Medical Malpractice Act, Ark. Code Ann. § 16-114-204 (Supp. 1991), is applicable. Since this is undisputedly a suit for a “medical injury,” the Medical Malpractice Act applies, and, at the time this case arose, it required the sixty-day notice of intent to sue. The wrongful death statute does not require notice. See Ark. Code Ann. § 16-62-102 (1987). The Medical Malpractice Act was enacted long after the wrongful death statute was enacted, and the Medical Malpractice Act expressly “supersedes any inconsistent provision of law.” Ark. Code Ann. § 16-114-202 (1987). We have no choice of policy on the notice issue as we did when there were two statutes of limitations that were applicable. Nothing more need be said on this issue, and it too is decisive of this case.

In addition, contrary to the assertions of appellant, our case law has reserved ruling on the issue of whether actions for wrongful death resulting from medical malpractice are subject to the current Medical Malpractice Act. In Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987) (Brown I), we wrote that the decedent, Roy DeWayne Brown, died from a medical injury, but that the three-year statute of limitations contained in the wrongful death statute applied. We did not discuss the notice provision of the Medical Malpractice Act, and made no holding on the issue of notice. The holding of the case related only to the statute of limitations. We based the Brown I holding on our earlier holding in Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), which was decided before the Medical Malpractice Act was enacted. However, in Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991), we held that we were in error in Brown I when we wrote that the decedent died from a medical injury, and we overruled Brown I to that extent. Thus, after Bailey, the question of whether a wrongful death resulting from medical injury was subject to the period of limitations of the Medical Malpractice Act was an open question, and we had made no holdings whatsoever about the notice issue.

In Dawson v. Gerritsen, 295 Ark. 206, 748 S.W.2d 33 (1988), we sought to clear up any misunderstanding about the issue and wrote, “We do not decide whether the legislature intended that actions for wrongful death resulting from medical malpractice be subject to Act 709 [the Medical Malpractice Act]. . . .” Id. at 209, 748 S.W.2d at 34. It is hard to think of a clearer way to say that we reserved ruling on the issue.

In Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III), which was the third appeal of Brown I, we said that the decedent, Roy DeWayne Brown, died from a medical injury and that the three-year statute of limitations contained in the wrongful death statute applied, but we expressly stated that our holding was based only on the law of the case from Brown I, and, as previously set out, we had already overruled the part of Brown I that held the injury was a medical injury. Unfortunately, one sentence of dictum says that the Medical Malpractice Act, including the notice provision, is irrelevant to wrongful death actions. That is the sentence on which appellant bases her argument. The sentence is dictum, not the holding of the case, and must be read in context of the whole paragraph which states that the holding is based on the law of the case. The concurring opinion of Justice Glaze issued a clear warning to attorneys who might later file medical malpractice actions that it would be prudent to assume that the notice provisions of the Medical Malpractice Act still apply. See Brown, 308 Ark. at 364, 823 S.W.2d at 910 (Glaze, J., concurring). Brown III is the latest holding on the statute of limitations issue. It contained no holding on the notice issue.

In sum, we have expressly reserved ruling on whether wrongful death resulting from medical malpractice is governed by the Medical Malpractice Act, and this is the first time we are squarely faced with the issue. The Medical Malpractice Act provides that it applies to “all causes of action for medical injury.” (Emphasis added.) The language is clear, and we are constrained to follow it. Accordingly, we hold that, under the then existing law, notice had to be given in compliance with the Medical Malpractice Act.

Affirmed.

Glaze, Corbin, and Brown, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. For some time, this court has recognized that medical malpractice and wrongful death are separate causes of action even though they may arise from the same negligent acts. Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968). In Simmons First Nat’l Bank v. Abbot, 288 Ark. 304, 705 S.W.2d 3 (1986), we affirmed the holding of Matthews that so long as the medical malpractice two-year statute of limitations has not run before a death caused by a medical injury, a wrongful death suit may be filed within the three-year statute of limitations for wrongful death even though the death was caused by a medical injury. However, we held that reduction to final judgment of the injured person’s claim for bodily injury “extinguishes any wrongful death claim by her next of kin that her bodily injuries subsequently cause her death.” Simmons, 288 Ark. 304, 309, 705 S.W.2d 3, 6. In Dawson v. Gerritsen, 295 Ark. 206, 748 S.W.2d 33 (1988), appellees argued Matthews was no longer good law since it was decided before the legislature enacted Section 5 of Act 709 of 1979, codified as Ark. Code Ann. § 16-114-204 (1987). However, we declined to address “whether the legislature intended that actions for wrongful death resulting from medical malpractice be subject to Act 709.” Dawson, 295 Ark. 206, 209, 748 S.W.2d 33, 34.

Without overruling Matthews or any of our subsequent cases, the majority attempts to distinguish our subsequent cases to reach the holding that an action for wrongful death resulting from medical injury is subject to the provisions of the Medical Malpractice Act enacted by Act 709 of 1979. This is the crux of my dissent. One only has to read Matthews, Simmons First Nat’l Bank, Dawson, Brown I, Bailey, and Brown III to reach the inescapable conclusion that this court has recognized unwaveringly for a quarter of a century that an action for medical malpractice and an action for wrongful death are separate causes of action even though they may arise from the same negligent acts. For this court to '‘‘'distinguish'’'’ these cases so as to reach an opposite conclusion is an intellectual feat that I suspect exceeds our profession’s ingenuity. While this issue will be moot in the future by virtue of our decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992) we should follow the precedent which applies to this case.

In Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 562, 732 S.W.2d 130, 132 (1987) (Brown I), while we found that Brown’s death was properly characterized as a medical injury, we found that the claim was founded on the wrongful death statute and, therefore, the three-year statute of limitation contained in the wrongful death statute applied. In explaining our decision we stated that

[o]ur wrongful death statute [creates] a new and separate cause of action which [arises] if death [is] caused by any wrongful act and which carries its own statute of limitations as part of that right. For this reason, the medical malpractice statute of limitations is irrelevant when a patient dies from his injuries before the two-year period has run.

We later determined that the injury in Brown I was not a medical injury (decedent in Brown was a patient at an alcoholism treatment center when he walked out of an unlocked door onto the roof of the building and either fell or jumped to his death). Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991). In Bailey, we overruled Brown I to the extent that holding was in conflict with the holding in Bailey that the patient’s death was not caused by a medical injury (decedent in Bailey was a patient in a nursing home and left the nursing home unnoticed in his wheelchair and was subsequently struck by a pickup truck and killed instantly). The majority views our decision in Bailey as also overruling the decision in Brown I that the statute of limitations applicable to a wrongful death action where the cause of death was a medical injury was the statute of limitation for wrongful death and not the statute of limitation for medical malpractice. The majority extends our holding in Bailey too far. The only conflict between Brown I and Bailey was our determination that the injury in Brown I was a medical injury. Thus, Bailey only overrules Brown I to the extent our determination that the injury in Brown I was a medical injury is in conflict with the determination in Bailey that a similar injury was not a medical injury. Bailey does not affect the holding in Brown I that wrongful death and medical malpractice are separate actions and the medical malpractice statute of limitations does not apply to a wrongful death claim even if the cause of death is a medical injury.

After our decision in Bailey, the Brown case was appealed to us yet again. In Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III), the trial court had dismissed appellant’s claim for failure to comply with the notice requirements of section 16-114-204. We reversed the trial court and said

[t]he issue of whether this is a medical malpractice action to be governed by the notice requirements and the two-year statute of limitations of the medical malpractice statutes or a wrongful death action was decided in Brown I. We held that this is a wrongful death action. Because this is a wrongful death action, compliance with the medical malpractice statutes, including § 16-114-204, is irrelevant.

Brown III, 308 Ark. 361, 363, 823 S.W.2d 908, 909. The majority attempts to ignore our clear statement in Brown III by saying it was decided on law of the case principles and contained no holding on the notice issue. The only issue in Brown III was whether the notice provisions of section 16-114-204 applied in a wrongful death action. The law of the case which Brown III relied upon was the holding in Brown I that the case was a wrongful death case in which the cause of death was a medical injury. The holding of Brown III was that the notice provisions of section 16-114-204 do not apply in a wrongful death case even though the cause of death was medical injury. This was not dictum as the majority contends. Under our previous case law, since the case before us is a wrongful death case, even though the cause of death was a medical injury, compliance with section 16-114-204 is not required.

I would reverse and remand for further proceedings consistent with this opinion.

Glaze and Brown, JJ., join in this dissent.

Robert L. Brown, Justice,

dissenting. I join Justice Corbin’s dissent and further observe that the majority this date applies a patchwork quilt approach to this cause of action. We have held that a claim amy be brought for injuries like we have in this case either as a wrongful death action or medical malpractice. Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), (Brown I); see also Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968). We have held that the two are alternative causes of action with different statutes of limitation. Id. The option is available even when a medical injury is involved such as we have in the present case. Id.

Today, we are saying, “Not so.” The majority holds that the 60-day notice provision in the Medical Malpractice Act may be plucked from that act and applied to a wrongful death action to foreclose further litigation under that statute.

There are several things wrong with this approach. First, the majority has endorsed a hybrid cause of action. Secondly, we decided this issue in Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III), when we said:

Because this is a wrongful death action, compliance with the medical malpractice statutes, including § 16-114-204 [the 60-day notice statute], is irrelevant.

308 Ark. at 363, 823 S.W.2d at 909.

Finally, the fact that we subsequently decided that the injury in Brown I was not a medical injury does not negate the holding in Brown I that a medical injury claim could be brought either under the Medical Malpractice Act or as a wrongful death action.

I would reverse the trial court’s orders of dismissal and remand for trial.

Glaze and Corbin, JJ., join.

       We recently held that the notice provision of section 16-114-204 was superseded by Ark. R. Civ. P. 3. Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). However, appellant cannot rely on Weidrick since appellant did not raise the supersession argument below. Seyller v. Pierce & Co., 306 Ark. 474, 816 S.W.2d 474 (1991).


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Johnie Michael COX v. STATE of Arkansas
    CR 91-16
    853 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered May 17, 1993

      John Wesley Hall, Jr., by: Craig Lambert, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal from the capital murder conviction of Johnie Cox, appellant, sentenced to death by lethal injection for the murder of three individuals. Cox raises seven points for appeal, but we find none have merit.

On November 1, 1989, Margaret Brown, William Brown and Marie Sullens were in their apartment in Kensett, Arkansas, when Cox came to see Ms. Sullens. Cox told police he had gone there to kill Ms. Sullens because he believed she was trying to murder his grandfather. Apparently she was looking after the grandfather and Cox thought she had attempted to kill him by leaving gas on in his apartment.

William and Margaret Brown were at the apartment when Cox arrived. He held a .22 pistol on William and had him bind Marie and Margaret with electrical cords and duct tape. Cox then tied William and bound all three together at the neck. Cox tried unsuccessfully to kill each of them by inflicting stab wounds with a knife and by strangling them with electrical cord. To assure their death he set fire to the house. All three individuals died from a combination of the stab wounds, strangulation and fire.

Cox was arrested on December 5,1989, and gave a detailed confession of the murders. He was tried on three counts of capital murder, found guilty, and sentenced in a bifurcated proceeding to death by lethal injection on all three counts. Cox filed a motion for a new trial under Ark. R. Crim. P. 36.4 alleging his defense counsel was ineffective, but after a hearing the trial court denied the motion. Cox appeals from the conviction and the denial of his Rule 36.4 motion.

Before addressing appellant’s arguments, we will first review the facts in comparison to other cases in which we have affirmed the death penalty. See Johnson v. State, 308 Ark. 7, 832 S.W.2d 800 (1992). We do so to achieve evenhandedness of the application of the death penalty. Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1977); Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1983), and Johnson v. State, supra. As was stated in Johnson-.

The real issue is whether the wickedness, inhumanity, and heinousness of this murder is comparable with that of other murder cases in which we allowed the sentence of death to stand.

The medical examiner testified that Margaret Brown had a total of fourteen stab wounds in the neck, chest, breast and side, and had a electrical cord constricting her neck. He found she had died before the fire from a combination of stab wounds and strangulation. He testified that William Brown had wires around his neck but had not died of strangulation. He had two stab wounds, one in front and one in his back and was still alive at the time of the fire. He died from a combination of the stab wounds and the fire. Marie Sullens, who was sixty-eight years old, had been stabbed six times in the back and neck, some of the wounds penetrating the chest and lung. She was also alive when the fire started and died as a result of the stab wounds and the fire.

Statements taken from Cox’s written confession and a video taped confession contained the following narrative of the murders:

I held the gun on Billy [William Brown] and made him tie Marie and Margaret. . .He used electric cord to tie them up. I made him tie their hands and feet. Then I tied him up. I had him hold his hands over his head with his back to me. I ran the cord around his neck and had him put his hands down. That caused the cord to tighten around his neck. . . .
[Billy] said [Margaret] had some type of sleeping pill and it was supposed to have been a nerve pill, . . .so whenever they introduced me to that I said well, all of them need to go to sleep and I had them all take four pills, and whether they took them or not or spit them out I don’t know. . . .
Marie wanted to [go to the bathroom] so I cut the cords tying her to the others and carried her to the bathroom. I brought her back in and laid her on the bed and . . . then that’s when I tried to kill her, at least I thought I was trying to kill her. ... I stabbed her several times. [Prior to that I had been in the kitchen] drinking Coke and eating chips. . . . I was waiting on the pills to take effect so that I could set a fire and smoke would kill them. ... I got tired of waiting more or less because I had been there long enough. [So that’s when I started to kill Margaret.] I yanked up a coat because she started making noises and stuff like that, and so I muffled it the best I could until I could get in position. I tried stabbing her and couldn’t kill her, so I just took a shot at her and couldn’t kill her, so I just took an electrical cord and wrapped it around her neck and held it with one of my feet and took my hands and pulled it up until I choked her to death, but she was even breathing after that.
Then I stabbed Billy in the chest and turned him over on [his wife Margaret] and stabbed him in the back. I figured he was dead, but he was alive. . . . I went to Marie and tried to cut her throat with that knife but it was too dull. . . . Well, [Marie] didn’t say nothing else, and the wire was around her neck, and like I say, I was impatient, and I was in a hurry. . . and then I went back into the kitchen and I drank some more Coke and ate some more chips, and then I got out of there after I set the fire.

In sum, the proof is overwhelming the three murders committed by Cox were brutal, inhumane and heinous, two of them perpetrated merely because the victims happened to be there. The crimes are fully comparable to those in other cases in which we allowed the sentence of death to stand. See Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), and Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983).

As grounds for reversal, appellant first argues a continuance should have been granted because his trial closely coincided with two Arkansas executions which generated considerable publicity. Neither execution had any connection to the appellant or to the case. Appellant has cited no authority for this point. Nor has he shown that he was in any way prejudiced; he merely argues in conclusory terms that “the publicity and attendant public mood is prejudicial” and that “likely created a prejudicial climate.” We said in Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990) on a question of change of venue due to pretrial publicity:

The appellant did not have a right to a jury totally ignorant of the crime. Bussard v. State, 300 Ark. 174, 778 S.W.2d 43 (1989). Our review of the voir dire of the jurors in this case shows that while some had heard of the case or read about it, none of those selected said they could not give the appellant a fair trial. Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989). What the appellant was entitled to and what he got in our judgment was a jury composed of persons who could and did decide the case on the testimony presented in court and not on the basis of news media coverage of the matter. Logan v. State, 299 Ark. 266, 733 S.W.2d 413 (1989).

The denial of a motion for a continuance is within the sound discretion of the trial court and a ruling denying such motion will only be reversed if there is an abuse of that discretion, Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986), and the burden of demonstrating that abuse is upon the appellant. Wade v. State, 290 Ark. 16, 716 S.W.2d 194 (1986). To warrant reversal the appellant must additionally show that any abuse of discretion was prejudicial. Mann v. State, 291 Ark. 4, 722 S.W.2d 117 (1988).

As in Cash v. State, supra, we have reviewed the voir dire of the jurors and find only minimal notice by panel members of the two unrelated executions, in spite of repeated inquiries by counsel. None of the jurors selected said they could not give a fair trial and it can be fairly said the jury was composed of persons who could decide the case on the testimony presented and not on the basis of media coverage of two unrelated cases. Given that review of voir dire we find no merit in appellant’s argument.

Appellant next argues the trial court erred in failing to hold our capital murder statute unconstitutional because it does not narrow the class of death eligibility. This argument was addressed and rejected in Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992).

Third, appellant argues the sentencing provisions of our death penalty statute violate the Constitution because they deprive the jury of showing mercy to the defendant and the trial court erred in refusing to give instructions which so informed the jury. Appellant maintains Ark. Code Ann. § 5-4-603(a) (1987) violates the Constitution as applied to this case, unless the trial court instructs the jury that it has the power to reject the death penalty. That statute provides:

The jury shall impose a sentence of death if it unanimously returns written findings that:
(a) Aggravating circumstances exist beyond a reasonable doubt; and
(b) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(c) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.
Appellant argues in his brief:
This court has indicated that a jury should be told that despite its findings that aggravating circumstances exist and outweigh those in mitigation, it can still exercise mercy in answering the third question as to whether the aggravating circumstances justify a sentence of death. . . . However, thus far this court has declined to invalidate the statute for its failure to so state or to order trial courts to give juries instructions to that effect.

In other words, appellant acknowledges that we have consistently held this scheme is not a mandatory death statute and therefore unconstitutional for failure to allow the jury to show mercy to a particular defendant. See, e.g., Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986); Johnson v. State, supra. His challenge then is to the lack of further instructions by either the court or in the statute itself to more thoroughly inform the jury that it has the option of rejecting the death penalty and imposing instead life without parole.

This argument is in essence identical to one we have repeatedly rejected, i.e. that § 5-4-603(a) imposes a mandatory death penalty. In so doing, we have held the statute and instruction (AMCI 1509) are framed so as to lead the jury adequately through the process. We stated in Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989):

The wording of the instructions of [1509] is such, we believe, that a jury readily understands that it has the option of a lesser penalty. The instructions tell the jury that “in no event” will it return a verdict of death unless it unanimously makes three written findings which include a finding that “the aggravating circumstances justify beyond a reasonable doubt the sentence of death.” Thus a jury is told that it may reject the death penalty simply by declining to make that essential finding. This same argument, in varying shades, has been rejected repeatedly in prior cases. [Cases omitted].

This statement in Ruiz was in response to a defense request that the wording in the instructions be changed so the instruction would not require a mandatory death penalty.

Furthermore, if there were any doubts in the minds of the jurors on this point they could not have remained after the defense counsel’s closing argument in the penalty phase. He took the jury carefully through the steps they would make in their voting process, making it clear at each juncture what was required of them to find the death penalty or life without parole. There could have been no uncertainty in the minds of the jurors of the procedures to be followed and of the consequences.

In his fourth point, appellant submits the trial court erred in admitting a video tape and photos of the crime scene. Appellant contends the photographs of the victims were sufficiently gruesome so as to come under our holding in Barry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). We have examined the photographs and tape and find no merit to this point. We also note that the prosecutor had almost two hundred photos from the crime scene and eliminated those that were cumulative or unnecessary to the presentation of his case. At a subsequent hearing the number introduced was considerably less, and on appeal appellant objects to only twenty-two.

Next, appellant contends the trial court erred in voir dire rulings with respect to jurors Thacker, Davis and Hodges. Appellant urges two of the jurors, Davis and Hodges, should have been excused for cause, and that Thacker should not have been excused for cause.

The matter of the trial court’s decisions on venire persons will not be overturned absent an abuse of discretion. Allen v. State, 281 Ark. 3, 660 S.W.2d 922 (1983). Here, a review of Davis and Hodges’ voir dire makes it clear there was no abuse. Any uncertainties that might have arisen from the responses of either Hodges or Davis were cured by rehabilitative questions. See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). Any remaining doubts were of the type only the trial court could resolve and in that we defer to its superior position.

As to juror Thacker there was an adequate basis for the trial court’s excusal for cause. Mrs. Thacker’s son had been prosecuted for a felony by the same prosecutor and the county’s sheriff department had been conducting an investigation into her husband’s business, a flea market, for suspected possession of stolen property. There was no abuse of discretion in the trial court’s excusing this juror for cause.

Finally, appellant argues the trial court erred in submitting the aggravating circumstance for the jury’s consideration. Appellant was charged with the capital murder of three individuals under three separate counts of capital murder, pursuant to Ark. Code Ann. § l-10-101(a)(4) (1987):

(a) A person commits capital murder if:
****
(4) With the premeditated and deliberated purpose of causing the death of one person, he causes the death of any person.

At the guilt phase of his trial, he was convicted of all three counts of capital murder under this statute. At the sentencing phase of the trial, evidence was submitted to support the aggravating circumstance of Ark. Code Ann. § 5-4-604(4) (1987):

Aggravating circumstances shall be limited to the following:
****
(4) The person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim.

The state’s theory on this aggravating circumstance is that in each murder, appellant had created a great risk of death to the other two victims. The murder of each victim then, constituted an aggravating circumstance for each other victim, so that each murder also served as the basis for the aggravating circumstance of another murder.

Appellant makes two points challenging the constitutionality of this procedure: it amounted to “double counting,” and it failed to genuinely narrow the class of death-eligibles.

Both double counting and the narrowing function of death penalty schemes were addressed in Lowenfeld v. Phelps, 48 U.S. 231 (1988). The essence of Lowenfeld is that double counting is not significant in itself but rather the question is whether the statutory scheme genuinely narrows the class of death eligibles. In Lowenfeld, an element of capital murder was duplicated in the only aggravating circumstance presented, but the court found Louisiana’s capital murder statute sufficiently narrowed the death-eligibles in the offense itself from non-capital murders, and there was no constitutional requirement for further narrowing. The opinion notes that aggravating circumstances are not ends in themselves. Lowenfeld holds such narrowing can withstand constitutional scrutiny regardless of whether the narrowing occurs at the guilt phase or the sentencing phase.

Therefore under Lowenfeld double counting in itself is no longer significant, the question is whether the scheme provides for a genuine narrowing of death-eligibles at either the guilt or the sentencing phase. Consequently, double counting is not impermissible under the Eighth Amendment.

Neither is there a problem here with the statutory scheme providing a genuine narrowing of death eligible persons. As we held in Johnson v. State, supra, relying on Lowenfeld, the narrowing function can occur at either the guilt phase or the sentencing phase. And specifically as regards § 5-10-101 (a)(4) we stated:

[Under Lowenfeld\ the legislature may itself narrow the definition of the crime so that the finding of guilt in a death penalty case is necessarily a narrow finding, or the legislature may more broadly define capital offenses and provide for the required narrowing by jury findings of aggravating circumstances at the penalty phase. The legislature previously narrowed the class in both ways but, under the 1989 amendment [“Piazza” amendment which provided that premeditated murder of one person was a capital offense, where previously it required two] has broadened the definition of the crime so that the narrowing now primarily occurs at the' penalty phase.

So in the case before us, appellant was charged under § 5-10-101(a)(4) (1987), which is a broad definition of the capital offense — premeditated and deliberate death of any person. But while that class of offenses is somewhat broad, it becomes genuinely narrowed by the aggravating circumstance in this case, that the murder occurred creating a great risk of death to other persons.

In the face of that appellant then offers this argument: When a defendant kills more than one person the scheme “automatically converts any case involving the killing of more than one victim into a death case.” While we would agree that the killing of more than one person “automatically” converted this into a death case, that is not because of any infirmity in the statutory scheme. As discussed above, our scheme provides the genuine narrowing required under Lowenfeld, supra. Rather, it is because appellant committed the capital offenses under a circumstance that the legislature had enumerated as an aggravating factor. Under appellant’s argument the same might be said for all the other aggravating circumstances listed in § 5-4-604, i.e. any time a defendant commits murder under the aggravating circumstances, he will be “automatically” death qualified. However, this is precisely the purpose of aggravating circumstances.

Appellant also suggests that Lowenfeld, supra, is distinguishable from our case because the narrowing occurred at the guilt phase in Lowenfeld and at the sentencing phase in this case. While this is true, we held in Johnson v. State, supra, that the narrowing may occur at either phase, and specifically held it permissible at the sentencing stage. Furthermore, as argued by the dissent in Lowenfeld, having the narrowing occur at the sentencing phase is fairer to the defendant.

Appellant also suggests that by the language of the aggravating circumstance itself it was never intended to cover actual murders, but only as it states, “risks” of death. Similar provisions in other jurisdictions have found similar aggravating circumstance to cover actual deaths though only “risk” is mentioned in the statute as in ours. See Stafford v. State, 665 P.2d 1205 (Cr. App. Okla. 1983) (defendant herded six victims into a meat freezer and opened fire at close range and killing all six); State v. Sonnier, 379 So.2d 1336 (La. 1979), 402 So.2d 650 (La. 1981), cert. den. 103 S. Ct. (1983) (the execution of two victims lying side-by-side with six rapid rifle shots).

Further, as the state points out, under appellant’s argument a person who creates risks of death to other people would be eligible for the death penalty, but one who actually kills others is not. We do not interpret even a criminal statute so strictly as to reach absurd consequences that are clearly contrary to the legislative intent. State v. Joshua, 307 Ark. 79, 818 S. W.2d 249 (1991)

As to appellant’s motion under Ark. R. Crim P. 36.4, three points are made under his argument that a new trial was warranted because he was denied effective assistance of counsel. We find the arguments without merit.

In order to show his attorney was ineffective an appellant must first show that counsel’s performance was so deficient that the counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second he must show that he was so prejudiced by the defense as to be deprived of a fair trial. The appellant must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Conversely, this court indulges in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 688 (1984); O’Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989).

Cox first claims his counsel failed to move for a change of venue or to adequately support his motion for a continuance. As pointed out in our response to appellant’s first argument, which is essentially the same point, our review of voir dire persuaded us that regardless of whether this could be considered error, no prejudice occurred.

Second, Cox argues defense counsel failed to fully present as a mitigating circumstance that at least one of the murders, perhaps all three, was committed by someone other than Cox. Cox primarily relies on a number of small inconsistencies in his written and videotaped confessions. Without detailing the specifics we find it sufficient to state that these inconsistencies were minor and insignificant in the face of overwhelming admissions in Cox’s statements.

As his last point, Cox argues his counsel provoked juror Davis during voir dire, which created hostility toward Cox. Cox claims in conclusory fashion that prejudice should “be presumed since his fate was in the hands of an obviously hostile juror.” The record reveals no hostility in Davis’ answers to questions posed by the court or by counsel and Davis stated he would hear all the evidence before making up his mind with regard to guilt. Ultimately this is an issue that must be left to the trial court’s discretion, as a subjective judgment must be made as to the truthfulness of Davis’ answer. Therefore, finding no evidence to support appellant’s claim, we affirm on this point.

The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


author: David Newbern, Justice.

text:
    Shauan KILGORE v. STATE of Arkansas
    CR 93-16
    852 S.W.2d 810
    Supreme Court of Arkansas
    Opinion delivered May 17, 1993

      Tim A. Womack, P.A., by: James D. Berry, Jr., for appellant.

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

The appellant, Shauan Kilgore, was charged with delivery of crack cocaine. The State also petitioned to revoke a previous suspended sentence for burglary. Kilgore was convicted of the drug charge, and his earlier sentence was revoked. He was sentenced to a total of 55 years imprisonment. He contends the Trial Court erred in refusing his plea of guilty and in denying his motion for continuance. We find no error and affirm.

Kilgore was offered a plea bargain by the prosecutor. The agreement called for a plea of guilty on both the revocation of the suspended sentence and the drug charge and offered an eleven-year sentence for the delivery offense and a five-year consecutive sentence on the burglary sentence revocation. The criminal trial calendar setting order issued by the Trial Court provided that all plea agreements were to be in writing, signed by all the parties, and filed with the Clerk of the Court no later than September 21, 1992. The order required entry of pleas by September 30, 1992.

A first trial setting for Kilgore was on the petition to revoke, but a continuance was requested by his counsel. It was granted, and the matter was reset for Wednesday August 26, 1992. The matter was not tried on that date as Kilgore expressed a willingness to plead guilty and a plea agreement was signed by all parties. A copy of the agreement was filed September 30, 1992, but was later withdrawn by Kilgore in open court.

The trial calendar dated September 4,1992, for the October 1992 term showed the drug charge set to be the third case heard on Wednesday, October 14, 1992. An unrelated charge against Kilgore was scheduled as the first case for Monday, October 12, 1992. Following the withdrawal of the plea a second trial calendar, dated October 2, 1992, reflected that the drug charge had moved up on the docket and was set to be heard first on Monday, October 5,1992. This setting came about as the result of a conversation which took place on October 2,1992, between trial counsel and the Court. The original setting had changed to October 6, 1992, as cases set for earlier hearings were removed from the docket, but counsel for Kilgore said he had a personal conflict on that day, and when offered the Monday, October 5, trial date, he accepted.

At 4:05 p.m. on October 2 the prosecutor filed an amended information charging Kilgore as an habitual offender with two or more prior felony convictions.

Just prior to the scheduled trial, counsel for Kilgore requested a continuance stating he had no time to subpoena witnesses and make other preparations. As part of the motion for a continuance Kilgore indicated he wished to enter a guilty plea in accordance with the plea agreement and stated that, had he known he could be charged as an habitual offender, he would have entered his plea at the earlier time. The request for continuance was denied and the Court rejected the offer to plead guilty.

1. Disallowance of the guilty plea

Kilgore argues that, as he did not know of the amendment of the information until the day of trial, he should have been permitted to enter a plea in accordance with the agreement he had earlier rejected. His unstated premise is that it is unfair to permit an amendment in this fashion because if he had known the State planned to charge him as an habitual offender he would have accepted the prior offer in a timely fashion.

The agreement Kilgore submitted, unlike the earlier one he withdrew, was signed only by him and his counsel, and Kilgore could not bind the Court to a plea agreement not fully executed, Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). He has shown no prejudice resulting from the Court’s refusal to accept the plea.

The State may amend an information up to a point after the jury has been sworn but before the case has been submitted to it, as long as the amendment does not change the nature or degree of the crime charged, if the accused is not surprised. Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985); Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981).

We have not defined “surprised,” but in Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990), we were confronted with a similar argument. Traylor contended he was prejudiced as the State was allowed to amend on the day of the trial charging him as an habitual offender. He contended that, as he did not fully know the charges against him until the day of the trial, his constitutional rights were violated. We cited Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987), and noted that, as the defendant’s attorneys had been given a “rap sheet” showing prior convictions, there was no surprise when the information was amended.

Here there is no indication that either Kilgore or his counsel were unaware of the prior convictions and no assertion of surprise by the nature of the amendment. At most, Kilgore challenges the right of the prosecution to amend, but as stated above, the State has this right absent a showing of a change in the nature or degree of the crime charged. The fact that an amendment authorizes a more severe penalty does not change the nature or degree of the offense. Wilson v. State, supra. There was no prohibited change in this amendment and no basis for concluding that Kilgore or his counsel was surprised.

2. Denial of continuance

The denial of a motion for a continuance is within the sound discretion of the trial court, and the trial court’s ruling will be reversed only if there is an abuse of discretion. Stone v. State, 290 Ark. 204,718 S.W.2d 102 (1986); Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). The burden is on Kilgore to show an abuse of discretion. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). He must also demonstrate prejudice before we will consider the Trial Court’s denial of a continuance as an abuse of discretion which requires reversal. Mann v. State, supra; Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

Again, there was no showing that Kilgore’s counsel had no knowledge of prior convictions or was surprised when the amended information was filed. There is no showing that the habitual offender amendment would in any way have affected the manner in which Kilgore or his counsel prepared to defend the drug charge or the revocation petition. The amended information did not change either the nature or the degree of the crime charged, and Kilgore has demonstrated no prejudice. We find no abuse of discretion.

Affirmed.


text:
    SOUTHWESTERN BELL TELEPHONE CO. v. BLASTECH, INC. and Blastech Drilling, Inc.
    92-1336
    852 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered May 17, 1993

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellant.

      Friday, Eldredge & Clark, by: James M. Simpson and John Fendley, Jr., for appellees.
   David Newbern, Justice.

In this negligence case the appellant, Southwestern Bell Telephone Company (Southwestern Bell), mistakenly sued a company called “Blastech, Inc.” (Blastech), instead of “Blastech Drilling, Inc.” (Blastech Drilling), for cutting a telephone cable. The complaint was dismissed because the statute of limitations had run before Blastech Drilling was added as a defendant. We hold the Trial Court erred because, pursuant to Ark. R. Civ. P. 15(c), the amendment related back to the time of the filing of the original complaint, thus the statute of limitations did not bar it.

On October 31, 1990, Southwestern Bell sued Blastech, alleging that on August 10, 1988, Blastech damaged an underground cable while drilling holes to install dynamite charges. The subcontract, pursuant to which the work was being done, at one point named Blastech as the subcontractor. It was signed, however, on behalf of Blastech Drilling by its president, Adrian Blood.

In his deposition taken February 24, 1992, Blood stated he was the president and majority shareholder of both Blastech and Blastech Drilling. He stated the two were sister companies engaged in the same type work, and Blastech Drilling was normally responsible for drilling and was the corporation that caused the alleged damage to Southwestern Bell’s underground cable. Upon learning at the deposition hearing that Blastech Drilling was the proper defendant, counsel for Southwestern Bell proposed to amend the complaint to add Blastech Drilling as a defendant. Counsel for Blastech replied “no” when asked if he had any objection to the amendment. In a later hearing before the Trial Court, Blastech and Blastech Drilling’s counsel said he had no objection to the amendment but that he objected to it being considered as it was barred by the statute of limitations.

On July 6,1992, Southwestern Bell amended its complaint to include Blastech Drilling as a defendant. Blastech and Blastech Drilling moved to dismiss the amended complaint, alleging the claim against Blastech Drilling was barred by the three-year statute of limitations. After a hearing on the motion, the Trial Court dismissed the complaint against Blastech Drilling with prejudice.

When an amendment changes the party against whom the claim is asserted or adds a party after the statute of limitations has run, it may relate back to the time of filing of the original complaint. Relation back is dependent upon proof of four factors: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining a defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. Harvill v. Community Methodist Hosp. Ass’n., 302 Ark. 39, 786 S.W.2d 577 (1990), citing Schiavone v. Fortune, 477 U.S. 21 (1986). The purpose of Rule 15 (c) is to avoid dismissal on technical grounds if the added defendant received notice of the litigation before the statute of limitations expired. Id.

1. Same conduct

We have little difficulty determining this requirement has been met. The amended complaint adding Blastech Drilling was based upon the August 10,1988 incident and was virtually identical to the original complaint filed against Blastech. There is no dispute that both pleadings arose from the same conduct.

2. Notice

To show Blastech Drilling had notice sufficient to preclude unfair prejudice, Southwestern Bell, over objection, introduced Mr. Blood’s deposition in which he stated he was the president and majority shareholder of Blastech and Blastech Drilling. The deposition indicated Blood knew Blastech Drilling performed the allegedly negligent conduct giving rise to the lawsuit. There was no dispute that Blood was the agent for service of process for both corporations. Southwestern Bell also introduced, without objection, the subcontract forming the basis of the lawsuit which was signed by Blood on behalf of Blastech Drilling.

Blastech and Blastech Drilling’s counsel objected to the introduction of the deposition on the ground that it was not admissible because “the corporation” had been dissolved and thus Blood was not an “officer, director, or managing agent” when his deposition was taken as required by Ark. R. Civ. P. 32(a)(2). Blastech and Blastech Drilling take the position that the Trial Court refused to admit the deposition in evidence, and did so correctly. They thus would have us hold that there is no record upon which we can say the Trial Court erred in determining the amendment should not have related back to the original complaint. Southwestern Bell contends the deposition was admitted and considered by the Trial Court in making its decision.

When the obj ection was raised, the Trial Court allowed the deposition to be proffered. No explicit ruling was made on its admissibility. The remainder of the discussion at the hearing, however, centered on the information contained in the deposition. In addition, Blastech Drilling supported its proposition that the corporation had been dissolved with the very disposition it now contends is not part of the record. In view of these facts, it seems clear that the Trial Court did not hold the deposition of Mr. Blood to be inadmissible, and it is part of the record before us.

Mr. Blood’s deposition testimony was compelling evidence that Blastech Drilling had notice of the suit when it was filed. It became incumbent upon Blastech Drilling to show how it might be prejudiced in maintaining a defense. See generally Woods v. Hopmann Mach., Inc., 301 Ark. 134, 782 S.W.2d 363 (1990); Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985) (indicating if the requirements of Rule 15(c) are met, there can be no statute of limitations objection without proof of prejudice). Blastech Drilling, through its president and agent for service, should have realized Southwestern Bell had sued the wrong party. See Harvill v. Community Methodist Hospital Ass’n, supra; Trace X Chemical v. Gulf Oil Chemical Co., 724 F.2d 68 (8th Cir. 1983). Blastech Drilling failed to allege or show prejudice.

3. Mistaken identity

The leading Arkansas case with respect to the “mistake concerning identity” test is Harvill v. Community Methodist Hosp. Ass’n, supra. There, we focused on whether the party made a deliberate strategical decision at the outset not to sue the party later added or whether the failure was caused by mistake in identifying the proper defendant. We affirmed the Trial Court’s determination that Harvill made a strategic, initial decision not to pursue her tort claim against the added party.

The Trial Court in the present case was presented with no evidence that Southwestern Bell failed to sue Blastech Drilling initially for some strategic purpose. Nothing of record belies the conclusion that Southwestern Bell had no notice that Blastech Drilling caused the alleged damages until Blood’s deposition was taken. Both Blastech and Blastech Drilling were named on the contract, and Blood stated the two sister companies performed similar functions.

There was substantial evidence that the second and third requirements of Rule 15(c) were met when the original complaint was filed, well within the statute of limitations.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    Clara Faye BABBITT v. QUIK-WAY LUBE AND TIRE, INC.
    92-1355
    853 S.W.2d 273
    Supreme Court of Arkansas
    Opinion delivered May 17, 1993

      Jerry W. Stewart, for appellant.

      Baxter, Wallace, Jensen & McCallister, by: Ray Baxter and Karen Virginia Wallace, for appellee.
   Tom Glaze, Justice.

Appellant Clara Faye Babbitt filed this personal injury action against appellee Quik-Way Lube and Tire, Inc., alleging that, as a passenger, she sustained injuries as a result of her husband’s car falling into a drainage hole when he was driving into a wash bay on the premises. The jury returned a verdict in favor of Quik-Way. Ms. Babbitt brings this appeal wherein she claims Quik-Way’s attorney violated the collateral source rule when at trial he elicited evidence concerning her medical insurance coverage. Babbitt further argues the trial court abused its discretion by permitting such questioning and in refusing her motion for mistrial.

In presenting her case-in-chief, Ms. Babbitt, in response to her attorney’s direct examination, stated that she had not seen a doctor before paying her attorney a visit. She further explained she could not afford a doctor. The exact colloquy follows:

Q: All right. Now Ms. Babbitt, would you tell us please, when did you have the first occasion to go see a doctor. Was it at my insistence when you came to my office, or before?
A: When I came to your office I went to the doctor.
Q: Okay. And you had not seen a doctor prior to coming to my office, is that correct?
A: Yes.
Q: Why?
A: I didn’t have the money. They want their money up front when you go to the doctor’s. I didn’t have the money then.

Following the foregoing, Ms. Babbitt’s attorney introduced Babbitt’s medical bills, most of which reflected payment by her husband’s employer’s insurance carrier.

On cross examination, Ms. Babbitt was asked if she had told the jury that she had delayed seeing a doctor because she could not afford it. She replied, “That’s right.” Other pertinent colloquy follows:

Q: Is that just as true as all the rest of your testimony?
A: I couldn’t afford to pay an office call.
Q: Ma’am, your husband has worked for Reynolds Metals Company for 27 years?
A: Yes.
Q: You have medical insurance provided through Reynolds Metals Company, and have had for 27 years, haven’t you?
A: Yes. But they don’t pay office calls though.
Q: How much of these bills that you’ve submitted to this jury have they paid, or have they paid any yet?
A: I’m not familiar with it.
Q: You’ve turned in claims, haven’t you?
A: I haven’t, no.
Q: Well, tell me this. When you went to Saline Memorial Hospital, are you telling the jury that they didn’t ask for an insurance card?
A: Well, yeah, I’m sure they did.

At the colloquy’s end above, Babbitt’s attorney moved for a mistrial, contending the issue of insurance should not have been injected into evidence, and Quik-Way’s attorney responded that Ms. Babbitt had “opened the door.” The trial court denied the mistrial motion. We affirm.

Our recent case of Younts v. Balder Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992), controls. There, during direct examination, counsel asked Younts whether he had been able to reopen his business after the fire, and Younts said, “Haven’t been able to afford it.” Defense counsel argued during an in-camera hearing that Younts’ testimony opened the door for counsel to show Younts had received an insurance settlement. The trial court agreed, and we affirmed on appeal.,In doing so, we cited the general rule, that it is improper for either party to introduce or elicit evidence of the other party’s insurance coverage and stated this principle is part of the collateral source rule which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant.

We further recognized in Younts, that, when a party testifies about his or her financial condition in a false or misleading manner, he or she opens the door for the introduction of evidence which might otherwise be inadmissible under the collateral source rule. See also Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992). In upholding the trial court’s rule to allow defense counsel to inquire of Younts’ insurance settlement, we stated as follows:

It is important to recognize that Younts’ testimony came when he was being questioned by his own counsel. The question asked was whether he had rebuilt the physical facilities of his business. The question was wholly irrelevant to any question in the case other than possibly that of mitigation of damages which does not appear to have been at issue. The dissenting opinion seems to conclude as a matter of fact that Younts was telling the truth or that he answered in good faith. We have no way to determine that. Appellate courts do not make those decisions. The important point is that Younts’ response that he could not afford to rebuild could very well have been misleading to the jury. In Peters v. Pierce, supra, and in York v. Young, supra, we held that in such a situation the collateral source rule does not prevent introduction of evidence of insurance.

In the present case, Babbitt’s counsel invited Babbitt to explain why she saw him before having seen a doctor. The purpose of such questioning was to give Babbitt an opportunity say, “I didn’t have the money... [t]hey want their money up front when you go to the doctor... I didn’t have the money then.” As was the situation in Younts, Babbitt’s counsel’s question and Babbitt’s response had no relevance to any issue in the case. Instead, Babbitt’s testimony that she could not go to a doctor for treatment could have misled the jury. Under these facts, we are unable to say the trial court abused its discretion in permitting Quik-Way’s counsel to elicit information that afforded the jury a complete and full picture of Babbitt’s financial situation.

In conclusion, we mention Babbitt’s remaining contentions. She first argues that the trial court erred in allowing QuikWay’s counsel to elicit information concerning Babbitt’s financial situation and insurance coverage before the jury without first notifying the trial court and opposing counsel. This argument was not presented below and we will not permit arguments to be raised for the first time on appeal. Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989). Similarly, Babbitt argues that before defense counsel can invoke the “open the door” theory to introduce otherwise inadmissible evidence, counsel must first lay a foundation, in camera, that the witness testified falsely or in a misleading manner. Again, this particular argument was not presented to the trial court for determination, and thus, we will not entertain it on appeal. Id.

For the reasons stated hereinabove, we affirm.


author: Tom Glaze, Justice. Jack Holt, Jr., Justice,

text:
    LIBERTY MUTUAL INSURANCE COMPANY v. Willie COLEMAN and the Honorable Harvey L. Yates, Circuit Judge
    92-947
    852 S.W.2d 816
    Supreme Court of Arkansas
    Opinion delivered May 17, 1993
    [Rehearing denied June 21, 1993.]

      Rieves & Mayton, by: William J. Stanley, for appellant.

      Daggett, Van Dover & Donovan, for appellee

      Holt, C.J., and Brown, J., would grant reheaing; Newbern, J., not participating.

   Tom Glaze, Justice.

Liberty Mutual Insurance Company seeks a writ of prohibition against the St. Francis County Circuit Court and for its grounds, asserts that court has erroneously assumed subject matter jurisdiction of a tort-of-outrage case filed by Willie Coleman. Liberty Mutual contends Mr. Coleman’s exclusive remedy is under the Workers’ Compensation Act. See Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987).

In the present case, Mr. Coleman, a workers’ compensation claimant, sustained an injury to his right hand and arm on September 1,1989. The workers’ compensation insurer, Liberty Mutual, partially acknowledged coverage for Coleman’s injury and paid him some benefits. Coleman was afforded medical care from Dr. L’Heureux, an orthopedic surgeon. The doctor determined Coleman could not regain satisfactory improvement to his hand and arm unless he received extensive therapy from a pain clinic in Memphis, and the doctor made his recommendation known to Liberty Mutual by telephone and letter dated October 17,198 9. A new representative of Liberty Mutual initially denied the doctor’s recommendation, and stated it would rather pay Coleman the disability relating to his arm than to pay the expenses of the pain clinic. Liberty Mutual subsequently authorized treatment at the pain clinic blaming the initial refusal on one of its representatives as being unfamiliar with Coleman’s file. It further asserted Coleman failed to take advantage of Liberty Mutual’s offer.

On April 11, 1990, Coleman’s right arm was amputated below the elbow; Coleman then filed an A7 claim form with the Workers’ Compensation Commission, and also filed this suit for the tort of bad faith and outrageous conduct, alleging Liberty Mutual’s wilful, intentional and unjustified refusal to authorize treatment and pay Coleman’s medical expenses for therapy at the pain clinic caused the loss of his arm. Liberty Mutual answered, denying that it refused necessary medical treatment to Coleman or that its initial refusal caused Coleman to lose his arm. Liberty Mutual further moved to dismiss Coleman’s tort action, stating his exclusive remedy was under the Workers’ Compensation Act.

The trial court denied Liberty Mutual’s motion, and in this writ of prohibition action filed by Liberty Mutual, the issue is whether Coleman can sue the workers’ compensation insurer for an intentional tort when that insurer declines to pay certain medical expenses. The answer is no. The single issue presented here has been previously decided by this court at least twice. Cain v. National Union Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986); Johnson v. Houston General Ins. Co., 259 Ark. 724, 536 S.W.2d 121 (1976).

In Cain, the claimant, like Coleman here, was refused payment of certain medical expenses by the workers’ compensation insurance carrier. The claimant subsequently filed suit for intentional tort against the carrier, alleging the insurer had stipulated it would pay all medical expenses and its failure to do so caused the claimant to suffer emotional distress, humiliation, and embarrassment. The trial court dismissed the claimant’s suit, and this court affirmed, stating as follows:

We have previously ruled on this issue. In Johnson v. Houston General Insurance Co., 259 Ark. 724, 536 S.W.2d 121 (1976), we held that the benefits payable pursuant to the workers’ compensation act, and the procedure set out in that act for obtaining those benefits, constitute an exclusive remedy, and that remedy precludes an action at law, even for an intentional tort arising out of the non-payment of benefits.
[Ms. Cain], the plaintiff claimant below, asks us to overrule Johnson, supra. We decline to do so because the holding conforms with the workers’ compensation act which provides the remedies for late payment. The statutory remedies include: (1) A twenty percent penalty plus interest for the late payment of an award, Ark. Stat. Ann. § 81-1319(f)(g) (Repl. 1976), (2) A provision by which the Commission may require a bond from an employer to insure payment, Ark. Stat. Ann. § 81-1319(j) (Repl. 1976), and (3) A provision that a final award may be filed with the circuit clerk which causes it to become a lien on the property of the employer, Ark. Stat. Ann. § 81-1325 (c) (Repl. 1976).
Any change concerning the exclusivity of the statutory remedies or the form of those remedies must come legislatively.

Coleman briefly alludes to the Cain & Johnson decision and the dissenting opinion, in particular, offers succinct reasons why those decisions should not apply to the situation here. In short, the dissenting opinion says Coleman’s claim does not involve nonpayment of benefits, but instead characterizes his loss as a second injury which resulted from Liberty Mutual’s “refusal to approve treatment.” Obviously, Mr. Coleman’s failure to obtain treatment at the pain clinic recommended by Dr. L’Heureux was directly due to Coleman’s claim that Liberty Mutual would not pay for such treatment. Thus, as was the case in Cain, the workers’ compensation insurer here declined (initially at least) to pay certain medical expenses, and Coleman, the claimant, brought suit alleging bad faith on the insurer’s part. The only difference here is that Coleman further alleged Liberty Mutual’s refusal to pay medical expenses supported the wilful or intentional tort of outrage. Coleman, under the rule of law established in Cain and Johnson, simply is precluded from suing the insurer for such an intentional tort arising out of the nonpayment of medical expenses.

As previously mentioned, Liberty Mutual claims it authorized payment of Coleman’s treatment at the pain clinic, and its initial refusal did not cause him to lose his arm. Coleman disagrees. Nevertheless, under settled law, Coleman’s remedy was to petition the Commission and show that the pain clinic expenses were reasonable and should be paid by Liberty Mutual. Apparently, Coleman made no such request of the Commission. At least, such a request is not a part of the record before us. Clearly, Coleman is not entitled to dual remedies, one for intentional tort and another under the Workers’ Compensation Act, as the dissenting opinion would allow.

Because the rule in Cain and Johnson applies here, Liberty Mutual’s petition for writ of prohibition to the St. Francis County Circuit Court must be granted. Coleman’s exclusive remedy lies in his pending workers’ compensation case numbered WCC D914016.

In conclusion, the dissenting opinion’s reference to a second injury suggests Coleman cannot be said to have elected his Workers’ Compensation remedy because his tort, action emanates from his second injury (amputation) which occurred after his initial on-the-job injury and Workers’ Compensation claim. Such a suggestion is in total conflict with established law. Successive injuries are dealt with under the Workers’ Compensation law, Ark. Code Ann. § 11-9-525 (1987); in addition this court has held that when the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an intervening cause attributable to the claimant’s own negligence or misconduct. Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S.W.2d 315 (1960); Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 316 (1982). The Workers’ Compensation Commission has the initial jurisdiction to determine the compensability issue involving Coleman’s successive or so-called second injury.

Because jurisdiction in this matter rests with the Workers’ Compensation Commission, we grant Liberty Mutual’s request for writ of prohibition.

Holt, C.J., Newbern and Brown, JJ., dissent.

Jack Holt, Jr., Justice,

dissenting. I respectfully dissent.

Admittedly, workers’ compensation carriers clearly share the same immunity from injured employees’ lawsuits as employers. See Burkett v. PPG Industries, Inc., 294 Ark. 50, 740 S.W.2d 621 (1987). As such, claims against carriers are generally within the Workers’ Compensation Commission’s sole jurisdiction. Yet, certain narrow exceptions to the general rules of exclusivity have been carved out by our courts as well as by other courts. Liability based upon a wilful and intentional act by the employer entitles an employee to bring a common law tort action. See Thomas v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991); Fore v. Circuit Court of Izard County, 292 Ark. 19, 727 S.W.2d 840 (1987). And, this narrow exception is applicable to Mr. Coleman’s situation.

Here, it is claimed that Liberty Mutual’s outrageous conduct caused Mr. Coleman not only emotional harm but a condition more egregious . . . actual physical deformity. Thus, Mr. Coleman should be permitted to proceed in a common law tort action and avoid the exclusive remedy under the Workers’ Compensation Law if he can show actual, specific and deliberate intent by Liberty Mutual to injure him. See Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984).

The majority cites Cain v. National Union Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986), as authority to grant the petition for writ of prohibition asserting that this case involves nonpayment of benefits. However, our holdings in Cain and Johnson are simply not applicable. Relying on Ark. Code Ann. § 11-9-802 (1987), we determined in Cain that the Workers’ Compensation Act provided the exclusive remedy for intentional torts arising out of the nonpayment of benefits.

Similarly, in Johnson the appellant appealed a dismissal of a complaint against his workers’ compensation carrier. In affirming the dismissal, this court was faced with a situation in which an employee wanted to bring a common law action against the carrier because of its failure to pay benefits previously awarded by the Workers’ Compensation Commission.

However, unlike the claims in Cain and Johnson, Mr. Coleman’s claim does not involve nonpayment of benefits. It involves an allegation of outrageous conduct against a workers’ compensation carrier in refusing to approve treatment resulting in a second injury which necessitated arm amputation. There is a marked distinction between a refusal to pay a workers’ compensation claim and a refusal to approve recommended treatment. As such, a suit for recovery under the tort of outrageous conduct seeks neither compensation nor medical benefits for the original on-the-job injury.

Further, the majority makes mention and gives weight to an A7 Workers’ Compensation claim form purportedly filed by Mr. Coleman. Since the record does not reveal this form or its contents to us, we cannot say when or if the form was actually filed, or whether or not the purpose of its filing was for a claim for Mr. Coleman’s initial injury or for his alleged second injury.

For these reasons, Mr. Coleman’s claim for an alleged second injury should be treated as a separate claim and Liberty Mutual’s petition for writ of prohibition should not lie.

If this court denied the writ, we would not be making a determination as to whether Liberty Mutual’s conduct was sufficient to justify such a claim; we would simply be saying that a question of fact exists as to whether there is a causal connection between the alleged acts of Liberty Mutual in refusing to approve the recommended treatment and Mr. Coleman’s claim of a second injury.

Accordingly, I think the circuit court does have jurisdiction to proceed further in this matter and the petition for writ should be denied.

Newbern and Brown, JJ., join in this dissent.


author: Donald L. Corbin, Justice.

text:
    Thomas O. DAVLIN v. STATE of Arkansas
    CR 92-1211
    853 S.W.2d 882
    Supreme Court of Arkansas
    Opinion delivered May 17, 1993

      Witt Law Firm, P.C., for appellant.

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

Appellant, Thomas O. Davlin, appeals a judgment of the Johnson Circuit Court convicting him of rape and sentencing him as an habitual offender to a term of life imprisonment in the Arkansas Department of Correction. As appellant was sentenced to imprisonment for life, this court has jurisdiction of his appeal pursuant to Ark. Sup. Ct. R. l-2(a)(2). We reverse the judgment and remand for a new trial.

Appellant urges four points for reversal of the judgment entered pursuant to the jury’s verdict. Only appellant’s first two assignments of error, which concern a videotape of the victim’s statement to the Clarksville police, merit reversal. The videotaped statement was played to the jury during trial and again during jury deliberations. We note at the outset of our discussion that it is the re-viewing of the videotape that appellant challenges on appeal, not the original viewing of the videotape during the trial.

As his first assignment of error, appellant contends the trial court erred in permitting the jury to view the videotape for a second time during the jury’s deliberations because there was no showing of a conflict, dispute, or confusion among the jurors as required by Ark. Code Ann. § 16-89-125(e) (1987). He claims further that the videotape should not have been shown to the jury a second time because it was never admitted into evidence and section 16-89-125(e) applies only to evidence. As his second assignment of error, appellant contends the trial court erred in denying appellant’s request to be present during the replaying of the tape to the jury.

Section 16-89-125(e) provides as follows:

(e) After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.

First, we dispose of appellant’s argument that the videotape was not evidence. Despite the somewhat confusing assertion that the videotape was admitted “for the record only,” the trial court very clearly ruled that the videotape would be admitted. The videotape was therefore admitted into evidence and could be replayed to the jury pursuant to the requirements of section 16-89-125(e).

In support of his remaining claims concerning the videotape, appellant relies on McKinney v. State, 303 Ark. 257, 797 S.W.2d 415 (1990), as requiring strict compliance with section 16-89-125(e). McKinney holds that it is the procedural requirements of section 16-89-125(e) that are mandatory and that the trial court has discretion to determine whether to grant the jury’s request to reconsider the evidence. This court specifically stated, “it is apparent that our requirement that the statute be strictly followed focuses not on the express reason for the jury to request the information, but the ¡procedure by which the request is presented.” McKinney, 303 Ark. 257, 262, 797 S.W.2d 415, 418. A trial court may infer disagreement among the jury from its request to see or hear evidence during deliberations, and should honor any request of the jury to reconsider specific evidence in the absence of some compelling reason not to grant it. Id.

The proper procedure was not followed in the present case. Section 16-89-125(e) mandates that the jury return to the courtroom and that the information required be given to the jury “upon their being brought into court.” In the present case, the record reveals that the videotape was not replayed in court but in the room where the jury was deliberating. The record also reveals, however, that the trial court and counsel for both parties were present in the jury room while the tape was replayed. Although his counsel was present, appellant was not, and his counsel objected to his absence. The record states that the videotape would be replayed in the jury room just as it was at trial, with certain prejudicial portions deleted. However, the record is silent with respect to what actually occurred in the jury room and therefore does not assure us there was a lack of prejudice in the replaying of the tape.

We recognize that while objecting to appellant’s personal absence, appellant’s counsel specifically agreed to the location of the replaying of the tape. We also recognize that strict compliance with the procedural requirements of section 16-89-125(e) may be waived. See Jackson v. State, 256 Ark. 406, 507 S.W.2d 705 (1974). This court has held a valid waiver occurred where the attorneys went with the judge to the jury room, everything that happened was recorded in the record, and there was no possibility of prejudice. Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973). However, we also recognize that noncompliance with section 16-89-125 (e) gives rise to a presumption of prejudice, and that the state has the burden of overcoming that presumption. Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). The record is silent as to what occurred during the replaying of the tape. Therefore, there is no waiver by appellant. See Martin, 254 Ark. 1065, 497 S.W.2d 268. In addition, the state has therefore failed to meet its burden of rebutting the presumption of prejudice. See Tarry, 289 Ark. 193, 710 S.W.2d 202.

It is arguable that the presence of appellant’s counsel, coupled with an absence of any claim on appeal that prejudice occurred during the replaying of the tape, could provide us with the required assurance that no prejudice occurred. However, such an argument overlooks the underlying premise of appellant’s objection — his personal absence during the representation of the evidence. This court has previously interpreted an earlier yet identical version of section 16-89-125(e) and held that error occurred when the trial judge and counsel for both parties went into the jury room at the jury’s request and instructed the jury; error occurred because the defendant was not present and it was the trial court’s mandatory duty to bring the jury into the courtroom and instruct it there in the presence of the defendant. Durham v. State, 179 Ark. 507, 16 S.W.2d 991 (1929). In Durham, the error was not reversible because, although defense counsel was present, counsel did not object to the court’s actions. In the present case, however, appellant’s counsel expressly stated that he was not waiving any objection to appellant’s absence.

It is a basic principle of both our state’s and our nation’s criminal procedure that a defendant has the right to be present in person and by counsel when a substantial step is taken in his case. Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988). One expression of this basic principle can be found at Ark. Code Ann. § 16-89-103(a)(1) (1987), which states that a defendant indicted for a felony must be present during trial (emphasis added). This court has applied the “substantial step of the case” requirement to an earlier version of section 16-89-103. Bearden v. State, 44 Ark. 331 (1884). iteaniett held that when a defendant is absent from a substantial part of the proceedings, reversal is required and the defendant need not demonstrate prejudice. The rereading of instructions to the jury constitutes a substantial step in a defendant’s case, Kinnemer v. State, 66 Ark. 206, 49 S.W. 815 (1899), as does the instructing of the jury when the trial judge, accompanied by counsel for both parties, enters the jury room to read the instructions. Stroope v. State, 72 Ark. 379, 80 S.W. 749 (1904).

From the foregoing discussion, it is evident that many errors can occur, and did in fact occur in this case, when a trial court does not comply strictly with the procedural requirements of section 16-89-125(e). In addition, as with the present case, the errors can go beyond the statute and encompass the defendant’s constitutional right to be present when a substantial step is taken in his case. See Bell, 296 Ark. 458, 757 S.W.2d 175; Stroope, 72 Ark. 379, 80 S.W. 749; Kinnemer, 66 Ark. 206, 49 S.W. 815. Although section 16-89-125(e) does not expressly require a defendant’s presence during the representation of evidence or instruction of law, the foregoing principles of law do so require. Accordingly, we must reverse the judgment.

Had the jury returned to the courtroom, there would most likely have been a record of what occurred and the trial court would most likely have been reminded of appellant’s right to be present. The following quotation, which stresses the importance of strict compliance with section 16-89-125(e)’s predecessor, bears repeating here:

The procedure set out in the statute is not difficult to follow and places no burden at all on the trial court or attorneys, and places very little burden on the jury. It simply recognizes that the courtroom, where the trial is being conducted, is the proper place for the giving of all instructions to the jury in open court and where all the jury and anyone else interested, including the defendant, can hear the instructions in the context given. The defendant, as well as the public, is entitled to know what goes on in the courtroom, but they are not entitled to know what goes on in the jury room. We can think of many good reasons why a jury should receive all instructions in the public forum of the courtroom and we can think of no good reason why it should not. To strictly follow the simple procedure as set out in the statute, would avoid such difficulties that have arisen in th[is] . . . case ....

Martin v. State, 254 Ark. 1065, 1070, 497 S.W.2d 268, 271 (1973) (referring to Ark. Stat. Ann. § 43-2139 (Repl. 1964), identical in all respects to section 16-89-125(e)).

The judgment of conviction is reversed and remanded for a new trial.


author: Robert L. Brown, Justice.

text:
    Jeffrey O. PARSONS v. STATE of Arkansas
    CR 93-35
    853 S.W.2d 276
    Supreme Court of Arkansas
    Opinion delivered May 17, 1993

      John Lloyd Johnson, for appellant.

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

This appeal concerns an interpretation and application of the implied consent statute of the Omnibus DWI Act. The appellant, Jeffrey O. Parsons, was charged with driving while intoxicated, running a red light, and violation of implied consent. The first two charges were dismissed. He appealed his conviction for violating the implied consent statute, and the circuit court affirmed that conviction in a bench trial. We affirm the result reached by the circuit court, but for different reasons.

On January 25,1992, at about 4:30 a.m., appellant Parsons was stopped by Russellville Police Officer Ben Cross after running a red light and making a sudden turn. Officer Cross had him perform field sobriety tests which he was unable to complete. The police officer determined that Parsons was intoxicated, and he then directed him to submit to a test to determine his alcohol level. Parsons refused. As a result, the police officer ticketed Parsons for running a red light, DWI, and violating the implied consent statute.

On April 29, 1992, a guilty verdict was entered in Russell-ville Municipal Court on the charges of DWI first offense, the red-light violation, and implied consent. Parsons was fined, his driver’s license was suspended for nine months, and he was sentenced to one day in jail which was suspended. The DWI and red-light matters were subsequently dismissed, and Parsons appealed his conviction for violating the implied consent statute to circuit court.

At the subsequent bench trial in circuit court, Officer Cross testified that when Parsons ran the red light and turned sharply, Cross had to take evasive action to avoid a collision with Parsons’s pickup truck. Cross further testified that he assumed the appellant was drunk before he pulled him over. After the stop, he testified that he smelled alcohol when Parsons rolled down his window. He also noticed almost a case of beer in the bed of the truck. He noted that the appellant’s eyes were extremely bloodshot and his speech was slurred. He ordered Parsons to get out of the cab and perform field sobriety tests, which he could not finish. Parsons exhibited all the signs of intoxication, according to Officer Cross. He concluded that Parsons was “extremely intoxicated.”

On cross-examination, Cross testified that he did not have reason to believe that Parsons was drunk until the appellant rolled down the window, and he detected a strong odor of alcohol. He then added that he suspected Parsons of DWI when he was almost hit head-on early in the morning. He reiterated on re-direct that he suspected the appellant was intoxicated when the appellant ran the red light and turned in front of him. Parsons, in his testimony, denied that he ran the red light or that he was intoxicated.

Parsons moved to have the implied consent charge dismissed because the state failed to show that Officer Cross had reason to believe that Parsons was intoxicated before he pulled him over, as required by statute. The circuit court found that although it believed the statute did require the police officer to form a reasonable belief that the driver was intoxicated before he pulled the driver over, reasonable cause existed in this case due to Parsons’s running a stop light at 4:30 in the morning. The court added that the case was “thin.” The court concluded the Parsons was guilty of violating the implied consent statute, and it suspended his license for six months.

The relevant portion of the implied consent statute reads as follows:

(a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provision of § 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:
(3) The person is stopped by a law enforcement officer who has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol is his or her blood.

Ark. Code Ann. § 5-65-202(a)(3) (Supp. 1991).

In support of his argument, Parsons adduces two decisions which he contends hold that a police officer must have reasonable cause to believe that a motorist is intoxicated before he stops that motorist. Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985); Gober v. State, 22 Ark. App. 121, 736 S.W.2d 18 (1987). He further argues that the circuit court was in error in finding that the requisite reasonable-cause belief was formed by Officer Cross before he stopped Parsons.

A finding of the trial court cannot be set aside unless clearly erroneous. Ark. R. Civ. P. 52(a). Here, we cannot say the circuit court clearly erred in its finding. We disagree, however, with the circuit court’s interpretation of § 5-65-202(a)(3), and specifically with the court’s conclusion that the formulation of a police officer’s reasonable-cause belief must occur before the stop is made. The intent of the Arkansas General Assembly in passing the implied consent law was to mandate alcohol testing for a person stopped by a law enforcement officer when that officer has reasonable cause to believe the driver is drunk. The statute does not expressly require that the officer develop a reasonable belief of intoxication before the stop is made, which is perfectly understandable. Nor do we construe it in that manner. Such an interpretation would exclude prosecutions for drivers who are stopped for traffic violations such as speeding when the police officer does not suspect intoxication but then discovers that the driver is totally inebriated. It is readily apparent to us that the General Assembly did not intend this result, and we decline to hold that this class of offenders is exempt from the statute.

Indeed, the Arkansas General Assembly in the 1993 session amended § 5-65-202(a)(3) to establish that the time a police officer must develop a reasonable belief of intoxication is at the time of arrest. Act 132 of 1993. An Emergency Clause was included in Act 132 which emphasized the General Assembly’s “intent to have the implied consent law encompass conduct of persons whom police officers have reasonable cause to believe have committed the offense of DWI, at the time such persons are arrested for DWI.” We have held that changes to a statute made by subsequent amendment are helpful in determining legislative intent. American Casualty Co. v. Mason, 312 Ark. 166, 847 S.W.2d 392 (1993); Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). In this instance, the expression of intent in the Emergency Clause of Act 132 accords with our reading of § 5-65-202(a)(3) prior to the Act 132 amendment.

In Gober v. State, supra, cited by Parsons in support of his argument, the Court of Appeals did interpret § 5-65-202(a)(3) to mean that an officer must believe a driver is intoxicated before the stop is made. That interpretation, however, is at odds with this opinion today, and we overrule Gober v. State, supra, to the extent it is inconsistent with this holding.

Parsons also draws our attention to Roberts v. State, supra, as precedent for his position. Roberts, though, involved different facts. There, the defendant was found asleep behind the wheel of a car; when awakened, he refused to submit to an alcohol test. He had not been “stopped” under § 5-65-202(a)(3), and we held the subsection was not apposite for that reason.

In sum, in the case at bar the circuit court did not err in its finding that the police officer had reasonable cause to believe Parsons was intoxicated before he stopped Parson’s vehicle. Nonetheless, we hold that it was unnecessary for the court to examine whatever beliefs the police officer formed regarding intoxication before he stopped Parsons for an implied consent charge to ensue. The critical time for such a belief to be formed is at time of arrest. Again, we are mir. dful that Act 132 amends § 5-65-202(a)(3) to require belief cf intoxication only at time of arrest which should resc've arc, confusion on this point in the future, except for cases that may be currently pending.

Affirmed.