author: David Newbern, Justice.

text:
    Roderick Leshun RANKIN v. STATE of Arkansas
    CR 96-1025
    948 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered July 14, 1997
    [Petition for rehearing denied September 11, 1997.]

      Cross, Kearney & McKissic, by: Gene E. McKissic, for appellant.

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

Roderick Leshun Rankin, the appellant, was sentenced to death for the capital murders of Zena Reynolds, her mother Ernestine Halford, and her stepfather Nathaniel Halford. Mr. Rankin raises six points on appeal. Most of Mr. Rankin’s assignments of error are either meritless or procedurally barred from review. Mr. Rankin’s argument concerning the admission of his incriminating custodial statements is, however, well taken. Mr. Rankin asserts that the Trial Court admitted his statements into evidence without first holding a hearing on his motion to suppress. As the record fails to reflect whether a hearing was held on the motion or whether a ruling was made, we reverse and remand. On remand, the Trial Court shall conduct a hearing on the record for the limited purpose of determining whether Mr. Rankin’s statements were made after knowingly and intelligently waiving his right against self-incrimination.

At trial, the State introduced the testimony of Sonyae Reynolds, who was the sister of victim Zena Reynolds and the daughter of victim Ernestine Halford. Ms. Reynolds testified that she hid in a closet in the victims’ home during the attack. She said that she believed the assailant was Mr. Rankin because she saw the assailant wearing clothes that she knew to be similar to Mr. Rankin’s clothes. Ms. Reynolds admitted that she did not see the assailant’s face and that she had previously told the police that the assailant was not Mr. Rankin because she thought the assailant had shorter legs than Mr. Rankin. The type of clothing described by Ms. Reynolds was later discovered at Mr. Rankin’s home and admitted into evidence.

Ms. Reynolds’s testimony established a motive for the murder. According to her testimony, Mr. Rankin had repeatedly threatened to kill Ms. Reynolds and her family if she left him. The testimony showed that Mr. Rankin and Ms. Reynolds were having “relationship problems” and that Mr. Rankin was often jealous of Ms. Reynolds’s other male friends and had hit her on other occasions.

Sharon Carter, who lived next to the victims’ home, testified that she saw someone fleeing after hearing the door being kicked open and then gunshots. She said that the person fleeing was tall. Her description of the clothes worn by this person was generally consistent with the description given by Ms. Reynolds and consistent with the type of clothes discovered at Mr. Rankin’s home.

The scientific evidence established that a pistol found near the victims’ home was used in the murder. That pistol, along with a VCR and some CDs, had been stolen from the home of Ernest R. Demmings, a local fireman. The evidence showed that the VCR and CDs were found at Mr. Rankin’s home. The VCR in fact appeared to be hidden under dirty clothes. Although the evidence did not show that the pistol was ever seen at Mr. Rankin’s home, the State argued that Mr. Rankin had come into possession of the murder weapon when he came into possession of the VCR and CDs.

Detective James Cooper of the Pine BlufFPolice Department testified that he had been interrogating Mr. Rankin on the day of his arrest when he was told the murder weapon had been discovered. Detective Cooper testified that he relayed that information to Mr. Rankin. Another officer showed the pistol to Mr. Rankin, who responded, “You don’t have to show me that because I’m going to talk to you.” The police then began to record the interrogation. The jury received transcripts of the interrogation and heard the tape played in court.

In the interrogation, the police officers asked Mr. Rankin if he had kicked in the door to the victims’ house and shot the victims. They asked Mr. Rankin if he had experienced problems with Sonyae Reynolds; whether such problems led him to commit the murders; whether he was wearing blue shoes on the morning of the murders; and whether he had seen blood on the shoes. They asked him whether the .gun that they had shown him was the murder weapon and whether he had placed it at the location where it was discovered. Mr. Rankin’s response to each of these questions was a simple “Yes, sir.”

The police also asked Mr. Rankin who he saw first when he entered the house. He answered that he first saw Zena Reynolds and her children on the couch. The officers asked Mr. Rankin what happened next, and he answered, “I don’t know. It just— then everybody start running out and I — I guess I got scared.” The officers asked him if he then started shooting, and he answered “Yes, sir.” Mr. Rankin told the police that he shot Zena Reynolds, then Mrs. Halford, then Mr. Halford. He told the officers that he knew Sonyae Reynolds was also in the house but that he got scared and left. At the conclusion of the first interrogation, Mr. Rankin stated that “this is not what I meant to happen and I’m sorry, but I know that won’t bring them back.” In the second interrogation that occurred on the afternoon of Mr. Rankin’s arrest, the police asked Mr. Rankin how he arrived at the victims’ home. He answered, “I walked.” Thereafter, Mr. Rankin reached for the tape recorder, turned it off, and indicated that he no longer wished to talk with the police.

Í. Sufficiency of the evidence

Mr. Rankin argues that the evidence was insufficient to support his capital-murder convictions and that the Trial Court therefore erred in denying his motion for directed verdict. We must address this point before considering other assignments of trial error in order to preserve Mr. Rankin’s right to freedom from double jeopardy. Bradford v. State, 325 Ark. 278, 283, 927 S.W.2d 329, 331 (1996). We conclude that Mr. Rankin has faded to preserve the question of the sufficiency of the evidence for review and thus affirm on this point without reaching the merits.

Arkansas Rule of Criminal Procedure'33.1 requires a defendant to renew his motion for directed verdict at the “close of the case” in order to preserve for review any question pertaining to the sufficiency of the evidence to support the jury verdict. Even if a defendant renews his motion at the close of his case-in-chief, the requirement of the rule to renew the motion at the “close of the case” obligates the defendant to renew the motion again at the close of any rebuttal case that the State may present in order to preserve the sufficiency issue for appeal. Heard v. State, 322 Ark. 553, 557, 910 S.W.2d 663, 665 (1995); Christian v. State, 318 Ark. 813, 816, 889 S.W.2d 717, 719 (1994). The renewal of the motion for directed verdict must occur before the jury is charged. Webb v. State, 326 Ark. 878, 879, 935 S.W.2d 250, 251 (1996). An “attempt to renew a motion for directed verdict after the jury has been charged is not timely and is not in compliance with the rule.” Claiborne v. State, 319 Ark. 602, 603, 892 S.W.2d 511, 512 (1995). See Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994); Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994).

Counsel for Mr. Rankin moved for a directed verdict at the close of the State’s case and renewed the motion at the close of Mr. Rankin’s case-in-chief. The motions were denied. The State then presented its rebuttal case. The State rested, and defense counsel indicated that he had no “surrebuttal.” The judge told the jury that the evidence-taking portion of the trial had concluded, and he read the jury instructions. The State made its closing arguments, and defense counsel made his closing arguments. After a recess, the State presented a rebuttal argument.

Defense counsel did not attempt to renew the motion for directed verdict until after the State had completed its rebuttal argument. By that time, the jury had been charged, and closing arguments had been concluded. The attempt to renew the motion therefore was not timely. Because the motion was made after the jury had been charged, the motion was not renewed “at the close of the case,” and thus the sufficiency argument was not preserved for review..

2. Mistrial

Mr. Rankin also argues that his conviction should be reversed because two of the State’s witnesses, apparently in violation of an order of the Trial Court granting a motion in limine, testified that blood or possible blood stains were' found on Mr. Rankin’s tennis shoe. Mr. Rankin contends that this testimony was prejudicial and required the Trial Court to order a mistrial. Prior to trial, Mr. Rankin moved in limine to exclude any laboratory reports or testimony showing that human blood had been found on Mr. Rankin’s tennis shoe and blue jeans. The motion stated that the Arkansas State Crime Laboratory was unable to determine whether blood found on these items was related to the murders. The record does not contain a ruling from the Trial Court on Mr. Rankin’s motion in limine.

During the State’s case-in-chief, Cathy Ruhl, a forensic crime-scene technician with the Pine Bluff Police Department, testified that she received a pair of navy blue Reeboks and a pair of black-top tennis shoes that the police had taken from Mr. Rankin’s home during a consensual search. Ms. Ruhl identified the Reeboks in court and testified without objection that they “were sent to the State Crime Lab to have serology done on them” because one of the shoes contained “possible blood stains.” Ms. Ruhl testified without objection that the black-top tennis shoes were not sent to the Lab because “[t]here were no visible signs of stains on the shoes.”

Detective Daniel Dykes of the Pine Bluff Police Department later testified that he participated in a consensual search of Mr. Rankin’s home along with other officers on the morning of the murders. Detective Dykes stated that the police located one pair of tennis shoes by the couch on which Mr. Rankin had been sleeping and a second pair underneath the couch. Detective Dykes testified that “the tennis shoes had just a little bit of blood on them. Where I saw the blood was on the soles of the tennis shoes.”

Defense counsel then objected to Detective Dykes’s statement that he observed blood on the shoe and expressed his belief that the Trial Court had granted the motion in limine and “had instructed everyone to admonish their witnesses not to make any reference” to suspected blood stains found on Mr. Rankin’s shoes. The judge indicated that defense counsel’s characterization of his ruling was “correct.” The judge recalled that, due to the inconelusive evidence linking any blood to Mr. Rankin or to the victims, he had ordered the State not to ask questions about blood stains found on Mr. Rankin’s shoes and to admonish its witnesses “not to bring it up.” The judge indicated that the testimony of Ms. Ruhl and Detective Dykes violated his order.

During an in-chambers conference concerning the objection, counsel for Mr. Rankin mentioned the need for either a strong admonition to the jury to disregard the references to blood on the clothing or a mistrial. During the discussion of those possibilities, the Trial Court twice asked counsel what he was being asked to do. No motion for a mistrial was offered by counsel whose final word on the subject was the following:

Well, I’ll put it in my words, your Honor. I would ask the Court to go out and admonish the jury to disregard the testimony regarding any existence of blood on Mr. Rankin’s shoes and then further admonish the jury that, in fact, it is the understanding of the Court from the parties that there is no credible evidence of blood relating Mr. Rankin to the scene of this crime.

The judge and counsel agreed that a cautionary instruction would be necessary in light of the testimony given by Ms. Ruhl and Detective Dykes. At the conclusion of Mr. Rankin’s case-in-chief, the judge indicated to counsel that he would give the instruction, and counsel responded, “That’s all we want.” Prior to the State’s rebuttal case, the judge gave the following instruction:

Ladies and gendemen, before we go any further, I have been asked by the attorneys that — to tell you that in response to some testimony that actually inadvertently was brought out earlier in the trial the attorneys have assured me that there is no scientific evidence available to prove that any substance found on the defendant’s tennis shoes was related to or came from the crime scene.

Mr. Rankin now argues that the Trial Court erred by failing to grant a mistrial on account of the testimony given by Ms. Ruhl and Detective Dykes. Even if we assume that the testimony violated the Trial Court’s order granting Mr. Rankin’s motion in limine, we cannot say that the Trial Court erred by failing to order a mistrial in response to the violation in view of the ultimate failure of counsel to seek a mistrial and their agreement to the requested admonition. Generally speaking, a trial judge is under no duty to declare a mistrial sua sponte. See, e.g., Lovelady v. State, 326 Ark. 196, 199, 931 S.W.2d 430, 432 (1996). We typically decline to hold that a judge commits reversible error by failing to order a mistrial on his own motion when none was requested. Edwards v. State, 315 Ark. 126, 864 S.W.2d 866 (1993); Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987); Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982). Mr. Rankin “cannot complain on appeal because he received all of the relief he asked for at trial.” Stephens v. State, 328 Ark. 81, 90, 941 S.W.2d 411, 416 (1997).

3. Mental retardation

Mr. Rankin further argues that the Trial Court erred by refusing to find that Mr. Rankin was mentally retarded at the time of the commission of the murders and was therefore ineligible for the death penalty under Ark. Code Ann. § 5-4-618 (Repl. 1993).

According to Ark. Code Ann. § 5-4-618(b), “[n]o defendant with mental retardation at the time of committing capital murder shall be sentenced to death.” This provision was enacted by Act 420 of 1993. The statute provides that the defendant “has the burden of proving mental retardation at the time of committing the offense by a preponderance of the evidence.” § 5-4-618(c). A defendant is entitled to a rebuttable presumption of mental retardation if his intelligence quotient (“IQ”) is 65 or below, § 5-4-618(a)(2), but the definition of “mental retardation” encompasses more than an IQ score. The statute defines mental retardation as follows:

(A) Significantly subaverage general intellectual functioning accompanied by significant deficits or impairments in adaptive functioning manifest in the developmental period, but no later than age eighteen (18); and
(B) Deficits in adaptive behavior.

§ 5-4-618(a)(l)(A)-(B).

A defendant who wishes to invoke this provision must do so by written motion prior to trial. § 5-4-618 (d)(1). If such motion is filed, the trial court must determine prior to trial whether the defendant is in fact mentally retarded. § 5-4-618 (d)(2).

A finding by the trial court that the defendant is mentally retarded prevents the jury from being “death qualified.” If the mentally retarded defendant is convicted of capital murder, the jury is required to sentence him to life imprisonment without the possibility of parole. § 5-4-618 (d)(2)(B).

If the trial court rejects the defendant’s argument and finds that the defendant is not mentally retarded, then the defendant may take his case to the jury. Despite the trial court’s adverse determination, “the defendant may raise the question of mental retardation to the jury for determination de novo during the sentencing phase of the trial.” § 5-4-618(d)(2)(A). If the defendant proceeds under this provision, the jury shall receive a special verdict form on mental retardation when it retires to consider mitigating and aggravating circumstances. § 5-4-618 (d)(2) (A) (i). If the jury unanimously finds that the defendant was mentally retarded at the time of the commission of the capital offense, he is automatically sentenced to life imprisonment without the possibility of parole. § 5-4-618 (d)(2) (A) (ii).

In a pretrial motion, Mr. Rankin moved the Trial Court to find him mentally retarded pursuant to § 5-4-618(d)(l). The Trial Court held a hearing on the motion, heard testimony, and ultimately denied the motion. Mr. Rankin elected not to present the issue of mental retardation to the jury under § 5-4-618(d)(2)(A). Thus, he appeals only the Trial Court’s determination that he was not mentally retarded under this statute.

Although we have discussed this statute in past cases, see Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Fairchild v. Norris, 317 Ark. 167, 876 S.W.2d 588 (1994); Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993), we have not announced the standard by which we will review a trial court’s ruling on the question of mental retardation under § 5-4-618. That issue is now before us. We analogize this case to those in which we have reviewed a trial court’s determination of a defendant’s fitness to stand trial under Ark. Code Ann. § 5-2-302 (Repl. 1993). The standard there is whether the trial court’s finding is supported by substantial evidence. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). We adopt the same standard for reviewing a trial court’s determination under § 5-4-618. Thus, a trial court’s finding that a defendant is not mentally retarded under § 5-4-618 will be affirmed if it is supported by substantial evidence.

The Trial Court’s determination that Mr. Rankin was not mentally retarded at the time of the commission of the murders is supported by substantial evidence. At the hearing on Mr. Rankin’s motion, the Trial Court received the testimony of David Nanak, a psychological examiner for the Southeast Arkansas Mental Health Center. Mr. Nanak testified that he administered the Wechsler Adult Intelligence Scale — Revised examination to Mr. Rankin in February 1995. As Mr. Nanak explained, this examination measures a person’s IQ. Mr. Rankin scored a 66 on the February 1995 examination. According to Mr. Nanak, the test had a margin of error of 2.94 points.

Mr. Nanak testified that Mr. Rankin’s IQ score of 66 placed him “in the mild range of mental retardation,” which was from 50-69. Mr. Nanak explained that his conclusion was “based strictly on the numbers obtained through the intellectual testing. It is not a diagnosis. That was a classification he tested into.”

However, Mr. Nanak testified that he reviewed the results of a second IQ test administered in September 1995 by Dr. Philip Murphy in Oklahoma City. Dr. Murphy’s evaluation, done at the behest of defense counsel, showed that Mr. Rankin had an IQ of 72. Mr. Nanak testified that this reflected a six-point increase from his first score and that the standard variance between tests was three points. Mr. Nanak stated that this score removed Mr. Rankin from the “mild mental retardation” range. Mr. Nanak stated that it was his clinical impression that, based on the results of the September 1995 IQ test, Mr. Rankin was more accurately classified as “borderline intelligent,” although it appears from the record that Dr. Murphy concluded that Mr. Rankin was “mildly to borderline mentally retarded.” Mr. Nanak testified that Dr. Murphy’s testing produced a “closer estimate of [Mr. Rankin’s] actual functioning level” than the February 1995 evaluation. Mr. Nanak testified that Dr. Murphy’s “testing is probably more valid, more accurate than mine.” Mr. Nanak stated that he endorsed the results obtained by Dr. Murphy’s evaluation.

Mr. Nanak explained that the six-point difference in Mr. Rankin’s two IQ scores was probably due in part to Mr. Rankin’s adjustment to his incarceration. Mr. Nanak testified that he administered the February 1995 exam to Mr. Rankin in the county jail only a few months after his arrest. Mr. Nanak testified that Mr. Nanak probably had a high anxiety level at that point but that, by September 1995, he had probably adjusted. Mr. Nanak testified that he would expect Mr. Rankin to operate at a higher functioning level after having the opportunity to adjust to incarceration over the course of five or six months. Mr. Nanak conceded that a person who retakes an IQ test might achieve a higher score based simply on acquiring some degree of familiarity with the test, but he said that, in his experience, this would produce only a one- or two-point increase. Mr. Rankin achieved a six-point increase.

Mr. Nanak further testified that he administered the Wide Range Achievement test, an academic achievement test, and determined that Mr. Rankin was operating on fourth- or fifth-grade levels in reading and arithmetic. Mr. Nanak stated that Mr. Rankin told him that he had an eighth-grade education. He concluded that Mr. Rankin was functioning “somewhat behind” his education level.

Finally, Mr. Nanak testified that he conducted an interview with Mr. Rankin in which he found that Mr. Rankin was able to communicate, to understand what he is hearing, and to respond in a coherent manner. Mr. Nanak stated that he believed Mr. Rankin was concerned about his appearance and his place in public and that he was able to get along with others, function within a group, sustain relationships, and take care of his personal needs.

Dr. John Anderson, a psychologist with the forensic unit at the Arkansas State Hospital, testified that he had analyzed the evaluations performed by Mr. Nanak and Dr. Murphy and concluded that their reports were “reasonable assessments of [Mr. Rankin’s] functioning at the time he was evaluated.” Dr. Anderson testified about the increase in Mr. Rankin’s IQ score from a 66 to a 72. He explained that the five- to six-month interval between the two tests made it unlikely that the increase was due to any “test-retest effect.” Dr. Anderson also indicated that the score on the portion of Mr. Rankin’s IQ test that would have been most likely to increase on account of the “test-retest effect” did not increase. Finally, Dr. Anderson testified that he found Mr. Rankin to be polite but somewhat evasive, uncooperative, and malingering. Dr. Anderson stated that Mr. Rankin was able to understand what he was telling him and that he was “competent,” “coherent,” and was not suffering from a mental disease or defect at the time of the murders.

Mr. Rankin argues in his brief that the testimony introduced at the hearing established his entitlement to the rebuttable presumption of mental retardation under § 5-4-618(a)(2). We disagree. The testimony showed that Mr. Rankin scored a 66 on his first IQ test and a 72 on his second IQ test. These scores did not entide Mr. Rankin to the presumption under § 618(a)(2). Under that provision, a defendant is entided to the presumption only if his IQ is 65 or below. Mr. Rankin’s scores do not fall within this range.

Moreover, Mr. Nanak testified that he believed the score of 72 was more accurate than the score of 66. He further indicated that he believed Mr. Rankin was “borderline intelligent” rather than “mildly mentally retarded.” That testimony constitutes substantial evidence in support of the Trial Court’s finding. We reject Mr. Rankin’s suggestion that the Trial Court was obligated to accept the score of 66 over the score of 72 or to “reduce” these scores by the possible three-point margin of error or “average” them together in some way.

4. Change of venue

Mr. Rankin also argues on appeal that the Trial Court erred by denying his motion to change the venue for his trial from Jefferson County. We affirm on this point.

Mr. Rankin filed a pretrial motion seeking a change of venue pursuant to Ark. Code Ann. § 16-88-204 (1987), and Article 2, § 10, of the Arkansas Constitution. The motion alleged that it would be “impossible to select a fair and impartial jury from Jefferson County as a result of pre-trial publicity” and recited various instances of such publicity including a newspaper article that had reprinted Mr. Rankin’s custodial statements and a radio announcement that urged listeners to attend the trial of “the man who killed” the victims. The motion asserted that there had been “much discussion” about the case throughout the city.

Attached to Mr. Rankin’s motion were affidavits from six Pine Bluff citizens who asserted that Mr. Rankin would not be able to “receive a fair trial in Jefferson County, Arkansas” on account of the press coverage and the “frequent” and “general” discussions about the case that had occurred throughout the local community.

The Trial Court held a hearing on Mr. Rankin’s venue motion. Mr. Rankin first introduced the testimony of James Gregory, a Pine Bluff resident who sells insurance and also works as a funeral director and mortician. Mr. Gregory testified that he had frequent contact with “the general public” through his work and heard the case “discussed in several different places.” Mr. Gregory stated that the people that he had encountered were of the “general opinion” that Mr. Rankin was guilty. According to Mr. Gregory, the public was simply wondering whether Mr. Rankin would receive the death penalty or life imprisonment. Mr. Gregory admitted that he encountered this sentiment mostly in the course of talking with Pine Bluff citizens.

Mr. Rankin also introduced the testimony of James Claybon, the general manager of KYDE, the Pine Bluff radio station that aired the announcement mentioned above. Mr. Claybon estimated that the announcement had been “sporadically” aired some twenty-seven times over the course of two or three weeks. Mr. Claybon indicated that KYDE is a twenty-four-hour gospel station on the AM frequency. He conceded that the station’s signal reaches only 68 percent of Jefferson County’s physical area and misses entire areas of the county and the city of Pine Bluff. He could not pinpoint how much of the county’s roughly 90,000 population receives the signal, but he testified that the Arbitran company had estimated that the station had roughly 38,000 mostly African-American listeners over a multi-county area that included Jefferson County.

Finally, Mr. Rankin presented the testimony of Jessie Pearl Jackson, a Pine Bluff resident who owns her own beauty shop. Ms. Jackson testified that she caters to men and women customers of various races and ages, approximately 75 percent of whom are African-American. Ms. Jackson testified that she sees an average of 30 customers per week, many of whom are from Jefferson County. Ms. Jackson testified that there was a consensus among her customers that Mr. Rankin is guilty and that her customers wondered why the State had to waste money on a trial. She asserted that if there were any people in the county who could give Mr. Rankin a fair trial, “they are not coming to my salon.”

Arkansas Code Ann. § 16-88-201 provides as follows:

Any criminal cause pending in any circuit court may be removed by the order of the court, or by the judge thereof in vacation, to the circuit court of another county whenever it shall appear, in the manner provided in this subchapter, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had in that county.

The most important aspect of the issue concerning the effect of pretrial publicity upon the minds of the inhabitants of the county in which the case is to be tried is whether a fair jury can be selected. At the outset of Mr. Rankin’s trial, the Trial Court mentioned that there had been some press coverage of the case. He asked the pool of potential jurors if they had independent knowledge of the case beyond the press accounts. Some answered yes; many said they had not formed an opinion about Mr. Rankin’s guilt or innocence and would not be biased. Others mentioned that they would be biased, and they were excused. Defense counsel specifically asked if anyone had heard radio-station announcements, and none responded affirmatively. Many could not recall hearing any pretrial publicity. Those who could recall hearing press coverage stated that they had formed no opinions as to Mr. Rankin’s guilt or innocence and could be fair and impartial and decide the case based on what was presented to them. Then the judge asked what he called a “catch-all question”:

. . . ladies and gendemen, is there anything that any of you know about your situation, your mind set, or whatever, that would keep you from hstening to the testimony and the evidence and making a decision at the conclusion of this case based only on what you hear in this courtroom in the way of evidence and the law as the Court would instruct you?

There was no response, and the Trial Court responded, “All right.”

“There can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court.” Bell v. State, 324 Ark. 258, 264, 920 S.W.2d 821, 824 (1996). Nor was Mr. Rankin entitled to jurors who were “totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial.” Gardner v. State, 296 Ark. 41, 52, 754 S.W.2d 518, 523 (1988).

In addition, we note that Mr. Rankin used only eleven of the twelve peremptory challenges he was allowed during the selection of the jurors. His counsel attempted to use the twelfth challenge against a prospective alternate juror after the twelve regular jurors had been chosen, but they were not allowed to do so. That ruling was correct. See Ark. Code Ann. § 16-30-102(c) (Repl. 1994). Having failed to exhaust his peremptory challenges prior to the seating of the jury, Mr. Rankin is in no position to demonstrate prejudice from a ruling denying his venue motion. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995).

In light of the testimony introduced at the hearing which showed less-than-pervasive publicity, the failure of Mr. Rankin to demonstrate during voir dire that there were publicity-affected jurors, and the fact that he did not use all his peremptory challenges, we cannot say that the Trial Court abused his discretion by denying Mr. Rankin’s change-of-venue motion.

5. Death penalty

Mr. Rankin also argues that the Trial Court erred by denying his motion to declare the death-penalty statute unconstitutional. We also affirm on this point.

The State charged Mr. Rankin with three counts of capital murder pursuant to Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 1993), which provides that “[a] person commits capital murder if . . . [w]ith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person . . . .” The information did not charge Mr. Rankin with any other offense, and Mr. Rankin did not object to the capital-murder instructions or request that instructions be given on any other offense.

In a pretrial motion, Mr. Rankin requested the Trial Court to quash the information on the ground that § 5-10-101(a)(4) is unconstitutional due to its “overlap” with the first-degree murder statute at § 5-10-102(a)(2). He asserted that first-degree murder is a “lesser-included offense” of capital murder and that the two offenses were “identical.” He claimed that he would have a right to an instruction on any lesser-included offenses at trial and that due process required that the jury be able to consider, and convict on, any lesser-included offense. Mr. Rankin also claimed that our statutory scheme is unconstitutional because it fails to provide the jury with any standard by which to differentiate between the offenses of capital murder and first-degree murder. Mr. Rankin further contended that our statutory scheme is unconstitutionally void for vagueness and that it fails to guarantee equal protection of the laws because it provides for different punishments for the same conduct depending on whether the State charges the defendant with capital murder or first-degree murder.

Mr. Rankin repeats most of these arguments on appeal. With respect to the argument that the jury was provided with no standard to differentiate between capital murder and first-degree murder, we point out that Mr. Rankin was not charged with first-degree murder and that Mr. Rankin did not request an instruction on that offense. The only choice given to the jury was to convict on the capital-murder counts or to acquit. In any event, we have rejected Mr. Rankin’s “overlap” and “vagueness” arguments in numerous cases. See, e.g., Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). We also have rejected the claim that our statutory scheme creates an arbitrary classification in violation of the Equal Protection Clause. See, e.g., Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981). See also Cannon v. State, 286 Ark. 242, 690 S.W.2d 725 (1985); Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984).

6. Suppression hearing

We finally address Mr. Rankin’s assertion that the Trial Court erred by admitting into evidence his custodial statements • without conducting a suppression hearing. We remand the case so that such a hearing may be conducted.

Mr. Rankin gave two incriminating statements to the police on the day of his arrest that are discussed in detail at the outset of this opinion. In a pretrial motion filed on September 12, 1995, Mr. Rankin moved to suppress the statements. In his motion, he claimed that he made the statements while suffering from mental disease or defect and that this condition rendered him incapable of knowingly and intelligently waiving his right against self-incrimination. Mr. Rankin asserted that he made the statements as a result of fatigue and confusion, his youth and lack of education, mild retardation, and his inability to understand the nature of the questioning. Mr. Rankin alleged that he did not realize he was confessing to the murder of three people and that he was only “agreeing” to the police’s statements. Mr. Rankin further alleged that he did not realize that he was entitled to counsel before answering the detectives’ questions. He claimed he had requested to see his mother and brother so that they could get him a lawyer, but he said that he was advised by the detectives that he did not need a lawyer. Mr. Rankin maintained that admitting the confession into evidence would violate his right against self-incrimination, and he specifically requested that the Trial Court hold a hearing on, and ultimately grant, his motion to suppress.

The record contains no account of any hearing that occurred in response to Mr. Rankin’s suppression motion, and it contains no ruling by the Trial Court on the motion.

During the State’s case-in-chief, the prosecutor was examining Detective James Cooper of the Pine Bluff Police Department about his interrogation of Mr. Rankin. The prosecutor asked Detective Cooper a question concerning statements made by Mr. Rankin that were not recorded. Defense counsel objected that such statements were not admissible because they were not recorded, and the Trial Court overruled the objection. Shortly thereafter, the prosecutor offered into evidence Mr. Rankin’s inculpatory statements that were recorded, and they were received without objection.

According to Ark. Code Ann. § 16-89-107(b)(l) (1987),

. . . the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury, and it shall be the court’s duty before admitting the confession into evidence to determine by a preponderance of the evidence that the confession has been made voluntarily.

Here, the admissibility of Mr. Rankin’s custodial statements was clearly “raised by the defendant” by way of Mr. Rankin’s pretrial motion to suppress. That motion asserted that the statements should be suppressed because they were not made following a knowing and intelligent waiver by Mr. Rankin of his right against self-incrimination. Despite the State’s contention that Mr. Rankin “abandoned” his suppression effort by failing to object to the admissibility of the statements when they were introduced at trial, Mr. Rankin’s pretrial suppression motion was all that was required by the statute to raise the issue to the Trial Court and trigger its obligation to hold a hearing and address Mr. Rankin’s claims. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990); Buey v. State, 271 Ark. 768, 610 S.W.2d 576 (198.1). We know of no authority, and the State cites none, that requires a defendant to raise the question of the admissibility of his incriminating custodial statements more than once.

As the record contains no account of any hearing held by the Trial Court in response to Mr. Rankin’s motion, caution requires that we remand this case with instructions to the Trial Court to conduct a hearing on the record for the limited purpose of determining whether Mr. Rankin made the statements to the police after knowingly and intelligently waiving his constitutional rights. See Moore v. State, supra; Chenowith v. State, 247 Ark. 472, 445 S.W.2d 889 (1969)(Fogleman, J., concurring); Estep v. State, 244 Ark. 843, 427 S.W.2d 535 (1968) (Fogleman, J., concurring).

Section 16-89-107(b)(1) directs the trial court to “hear the evidence concerning the admissibility and the voluntariness” of the custodial statement and to determine, before admitting the statement into evidence, whether it has been made “voluntarily.” "We recognize that Mr. Rankin did not move to suppress his incriminating statements on the basis that they were involuntarily given. Rather, he based his motion on the assertion that he failed to make a knowing and intelligent waiver of his constitutional rights prior to making the statement. As we have noted, there is a difference between the concept of an involuntary statement and a statement made without a knowing and intelligent waiver of one’s constitutional rights. See Mauppin v. State, 309 Ark. 235, 246-47, 831 S.W.2d 104, 109-110 (1992).

The language of § 16-89-109(b)(l) appears to require the trial court to consider only whether the statement was “voluntary” when the admissibility of the statement has been raised by the defendant. Our cases, however, clearly require the trial court, if the defendant has alleged that his statement is inadmissible due to the lack of a waiver, to consider in a suppression hearing whether the statement was made after a knowing and intelligent waiver of his constitutional rights. See, e.g, Moore v. State, supra. Depending on the argument presented by the defendant in his suppression motion, a trial court should determine in the hearing whether the statement is inadmissible on account of its involuntariness or the lack of an effective waiver, or perhaps both of these grounds.

As we have done in other cases, see Williams v. State, 327 Ark. 97, 102, 938 S.W.2d 547, 550 (1997), we employ the “limited-remand procedure” here and direct the Trial Court on remand to hold a hearing on the record for the limited purpose of considering the arguments and allegations presented in Mr. Rankin’s pretrial suppression motion. If the Trial Court determines, at the conclusion of the hearing, that the statements were not given after a knowing and intelligent waiver, the Trial Court should suppress the statements and order a new trial. If the Trial Court determines that Mr. Rankin made his statements after knowingly and intelligently waiving his constitutional rights, a new trial will not be required. Moore v. State, supra; Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980); Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989).

7. Ark. Sup. Ct. R. 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for erroneous rulings prejudicial to Mr. Rankin, and none has been found.

Remanded.


source: Caselaw Access Project

license: Public Domain

text:
    C.W. RICHARDSON, Greg Richardson, and CWR Construction, Inc. v. Carl and Norlene RODGERS
    96-483
    947 S.W.2d 778
    Supreme Court of Arkansas
    Opinion delivered July 14, 1997

      Anderson & Kilpatrick, by: Randy Murphy, for appellants.

      Boswell, Tucker, Brewster & Hicks, by: Ted Boswell and John T. Holleman, for appellees.
   David Newbern, Justice.

This is an appeal from a default judgment. The appeal is dismissed for failure to comply with Ark. R. Civ. P. 54(b).

Carl Rodgers alleged he was seriously injured by a falling water pipe while working on renovation of the Pulaski County Courthouse. Mr. Rodgers was employed by IK Electric Service Co., a subcontractor on the project. Mr. Rodgers and his wife, Norlene Rodgers, brought a negligence action to recover damages resulting from his injury and Ms. Rodgers’s loss of consortium. The defendants were C.W. Richardson, Greg Richardson, CWR Construction, Inc. (referred to collectively as “CWR”), and Central Arkansas Risk Management (“CARM”). CWR Construction, Inc., was named as the prime contractor. The action against CARM was a direct action against the County’s insurer.

In a timely answer, CARM denied liability. American States Insurance Company (“American”), the workers’ compensation insurance carrier for IK Electric Service Co., filed a motion to intervene and a complaint in intervention. CWR failed to answer, and a default judgment was entered against them. A hearing was held on damages only, and awards totaling $1,450,000 and $50,000 were awarded to Mr. and Mrs. Rodgers, respectively, against CWR.

Based on its contention that CARM’s answer denying negligence inured to CWR’s benefit, and thus that there had been no default, CWR moved to set the default judgment aside pursuant to Ark. R. Civ. P. 55(c).

American’s intervention complaint sought subrogation to the rights of Mr. Rodgers against the defendants. It stated that American had paid Mr. Rodgers $10,783.95 in medical payments and $19,192.42 in temporary total disability and permanent disability payments. The complaint also alleged that the payments to Mr. Rodgers were for the injuries he received due to CWR’s negligence. The record does not disclose the disposition of American’s claim.

The parties have not raised the question of the finality of the judgment or the failure to comply with Rule 54(b). When counsel were asked about the matter during oral argument, the response was that the claim of American was only a subrogation matter somehow subsumed in the position taken by the Rodgerses.

While it is true that American and the Rodgerses are on the same side vis-á-vis CWR and CARM, that is not so as between them, and we have no idea whether American’s intervention claim was adjudicated.

The failure to comply with Rule 54(b), indicated by the absence of an order adjudicating the rights of all parties is a jurisdictional issue that we are obligated to raise on our own. Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994); State Farm Mut. Auto Ins. Co. v. Thomas, 312 Ark. 429, 850 S.W.2d 4 (1993). To be final and appealable, an order must cover all of the parties and all of the claims. Maroney v. City of Malvern, supra; Williamson v. Misemer, 316 Ark. 192, 871 S.W.2d 396 (1994).

An order is not appealable when it fails to mention an intervenor’s claim and contains no recitation of facts which would allow a piecemeal appeal under Ark. R. Civ. P. 54(b). Kinkead v. Spillers, 321 Ark. 552, 940 S.W.2d 437 (1997); Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994); Martin v. National Bank of Commerce, 316 Ark. 83, 870 S.W.2d 738 (1994); South County, Inc. v. First Western Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993).

In Martin v. National Bank of Commerce, supra, we wrote,

We do not reach the merits of appellant’s claim because the trial court did not dispose of the intervenor’s claim as is necessary-pursuant to ARCP Rule 54(b). The order appealed from does not mention the intervenor’s claim nor does it mention any facts that would allow a piecemeal appeal under Rule 54(b). As was the situation in South County, Inc. v. First Western Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993), the record does not reflect what happened to the intervenor’s claim. Therefore the order appealed from disposes of less than all the claims in this suit and is not a final, appealable order. Id.

Most recently in Kinkead v. Spillers, supra, we again dismissed because we found no mention of the disposition of the claim of an intervening lienor, Boatmen’s Bank, in a property dispute between two other parties. We noted that intervention had been granted and thus there was no issue in that respect but we could not tell what had happened to the claim. Here we cannot even tell whether the intervention of American was allowed or whether there may be issues concerning the intervention which may be subject to appeal. In the Kinkead case we wrote that the lien of Boatmen’s Bank could not be protected by one of the parties to the underlying litigation and that “Boatmens’ claim is not merely collateral to the [underlying dispute] and should be decided when disposing of the [underlying dispute].” The same is true of American’s subrogation claim.

CWR has failed to meet its burden of producing a record showing that the jurisdictional requirements of Rule 54(b) have been met. See Cortese v. Atlantic Richfield, 320 Ark. 639, 898 S.W.2d 467 (1995).

Appeal dismissed.

Glaze, Imber, and Thornton, JJ., not participating.

Special Justices Warren E. Dupwe, Paul E. Lindsey, and David G. Nixon join in this opinion.


author: Donald L. Corbin, Justice. David Newbern, Justice, Tom Glaze, Justice,

text:
    OUACHITA WILDERNESS INSTITUTE v. Mark MERGEN
    97-354
    947 S.W.2d 780
    Supreme Court of Arkansas
    Opinion delivered July 14, 1997
    [Petition for rehearing denied September 11, 1997.]

      Daily & Woods, P.L.L.C., by: Robert W. Bishop, for appellant.

      Walters, Hamby & Verkamp, by: Michael Hamby, for appellee.
   Donald L. Corbin, Justice.

This is an appeal by Appellant Ouachita Wilderness Institute, Inc. (“OWI”), who was found negligent and liable for damages to Appellee Mark Mergen’s pickup truck, which had been taken by two juveniles who left OWI without authorization. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 — 2(a)(15) (as amended by per curiam July 15, 1996). We affirm.

Facts and Procedural History

Ouachita Wilderness Institute, Inc., operates as a juvenile rehabilitation camp housing juvenile offenders under Ark. Code Ann. § 9-28-203 (Repl. 1995), directed by contract with Associated Marine Institute, Inc. (“AMI”), a contractor with the State of Arkansas Department of Human Services, Division of Youth Services. Appellee Mark Mergen, an employee of OWI, serves as an outdoor instructor. While working at OWI on December 24, 1995, Appellee placed his personal keys, which included the keys to his pickup truck, in his coat pocket. Appellee supervised a group of five juveniles while they cleaned the education building. During this time, one of those students took the keys from Appellee’s coat pocket while the coat was left in the “team leaders” office, which was not locked. He later returned the key ring to Appellee’s coat pocket. Appellee had no knowledge of the fact that his keys were taken.

Later that evening, the juveniles were in the dining hall watching movies. After a friend came to visit, Appellee left the area to submit a request for time off in the administration building next door. Upon his return, he noticed two juveniles were missing. The other supervisor, ClifFRoach, helped in trying to locate them. During the search, Appellee noticed his pickup truck was missing. He checked his key ring and found his truck keys were missing. The two juveniles had taken the pickup truck and were later involved in a high-speed police chase, which terminated when the truck crashed and was totalled. Appellee sued Appellant, AMI, and Eddie Prevost, the Executive Director of OWI. The trial court granted summary judgment to AMI prior to trial. A jury found Appellant negligent and awarded Appellee $26,400.

On appeal, Appellant argues the trial court erred as follows: (1) In fading to grant its motion for directed verdict; (2) in refusing to give its requested jury instruction on assumption of risk; (3) in instructing the jury that the measure of damages included incidental expenses; and (4) in failing to dismiss the complaint on a theory of charitable immunity.

Motion for Directed Verdict

Appellant argues that the trial court erred in failing to grant its motion for directed verdict on the following bases: (1) Appellee’s failure to establish a case of negligence concerning the duty of Appellant to provide a safe workplace for Appellee; (2) Appellee’s failure to establish that any negligence of Appellant was the proximate cause of Appellee’s damages; and (3) the evidence established Appellee’s fault to be greater than fifty percent.

Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence, which is evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Southern Farm Bureau Casualty Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996). It is not our province to try issues of fact, we simply review the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence, we view the evidence in the light most favorable to the party against whom the verdict is sought and give the evidence its strongest probative force. Id.

To establish a prima facie case in tort, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. Id. Negligence is the failure to do something which a reasonably careful person would do and a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Id. While a party can establish negligence by direct or circumstantial evidence, that party cannot rely on inferences based on conjecture or speculation. Id.

Appellant first argues that the employer in this case owed no duty to Appellee. Appellee claimed that Appellant was negligent and should have provided a secure place for Appellee’s keys, provided more supervision for its juveniles, locked the gate on the premises, and immediately notified the state police after the students were found to be missing. Appellant argues that there is no law creating a duty for employers to perform these acts.

Appellant also argues that the Fireman’s Rule applies in this case, as the risk is one in which the employee has a duty to accept. The Fireman’s Rule (also known as the professional-rescuer doctrine) generally provides that a professional firefighter may not recover damages from a private party for injuries the fireman sustained during the course of putting out a fire even though the private party’s negligence may have caused the fire and injury. Waggoner v. Troutman Oil Co., Inc., 320 Ark. 56, 894 S.W.2d 913 (1995). The Fireman’s Rule has been justified based on public policy considerations, because the purpose of the firefighting profession is to confront danger. Id. Public policy would be violated if a citizen was said to invite private liability merely because he happened to create a need for public services. Id.

Although Appellant’s assertion that it had no duty to protect Appellee’s property may have merit, we do not decide the issue because Appellant failed to clearly set out the theory of duty in its motion for directed verdict. At trial, Appellant did not elect to put on a defense. At the conclusion of Appellee’s case, Appellant’s counsel stated:

Defendants move for directed verdict, and I’m going to follow it with reasons, your Honor. The plaintiff has failed to establish a negligence case. The plaintiff has failed to establish that any possible negligence was a proximate cause of the plaintiffs damages. The evidence clearly establishes, as a matter of law, there was an intervening cause which caused the damages to Plaintiffs vehicle. Finally, the evidence establishes that the plaintiffs fault was greater than fifty percent.

Rule 50(a) of the Arkansas Rules of Civil Procedure provides in part that “[a] motion for a directed verdict shall state the specific grounds therefor.” The purpose of this requirement is to assure that the specific ground for a directed verdict is brought to the trial court’s attention. Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). In order to preserve for appeal the issue of sufficiency of the evidence, the party moving for a directed verdict must state the specific ground upon which it seeks such relief. Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997); Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994). Failure to state the specific grounds for relief in a directed verdict motion precludes this court’s review of such issue on appeal. Stacks, 323 Ark. 643, 916 S.W.2d 120. Merely stating that the plaintiff failed to establish a negligence case is not sufficient to apprise the trial court of the particular proof alleged to be missing.

The argument pertaining to the Fireman’s Rule is also mentioned by Appellant for the first time on appeal. We will not address arguments raised for the first time on appeal. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). If a particular theory is not presented at trial, the theory will not be reached on appeal. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). We thus summarily dispose of appellant’s arguments on the issue of duty because the abstract does not reflect that such theory was ever presented to or ruled on by the trial court.

Appellant did, however, specifically argue that the evidence failed to establish that any negligence of Appellant was the proximate cause of damages and that the evidence showed that Appellee’s fault was greater than fifty percent. When the existence of evidence, and all the reasonable inferences therefrom, created a question for the jury, the trial court properly denied appellant’s motion for directed verdict. McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996). Proximate cause is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Id. Arkansas is a comparative fault state, as provided in Ark. Code Ann. § 16-64-122 (Supp. 1995), and this case proceeded under that theory. Under the comparative fault statute, there must be a determination of proximate cause before any fault can be assessed against a claiming party. Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996). Proximate cause becomes a question of law only if reasonable minds could not differ. Id. Proximate cause is defined as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Id. at 370, 915 S.W.2d at 260 (quoting Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994)).

The original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is in itself sufficient to stand as the cause of the injury and the intervening cause must be such that the injury would not have been suffered except for the act, conduct, or effect of the intervening cause totally independent of the acts or omissions constituting the primary negligence. State Farm Mut. Auto. Ins. Co. v. Pharr, 305 Ark. 459, 808 S.W.2d 769 (1991). The mere fact that other causes intervene between the original act of negligence and the injury for which recovery is sought is not sufficient to relieve the original actor of liability if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable. Id. In no case is the connection between an original act of negligence and an injury broken by an intervening act of another if a person of ordinary capacity and experience, acquainted with all the circumstances, could have reasonably anticipated that the intervening event might, in the ordinary course of things, follow his act of negligence or if the negligence is of a character which, according to the usual experience of mankind, is calculated to invite or induce the intervention of some subsequent cause. Id. An intervening cause will not excuse the original misconduct but will be held to be the result of it. Id. Moreover, the intervening act or omission of a third person is not a superseding cause when the original actor’s negligent conduct is a substantial factor in bringing about an injury, if the actor, at the time of his neghgent conduct, realized that a third person might so act or if the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent. Id.

Appellant argues that Appellee’s keys were taken, not through any fault of Appellant, but because Appellee left them in a coat pocket that was accessible to the juveniles at OWI. Appellant also argues that the fact that two juveniles were able to leave OWI was not the proximate cause of the juveniles damaging Appellee’s truck, as they did not gain control of the vehicle until they had the keys. Moreover, Appellant asserts that Appellee was aware that OWI was a rehabilitation camp for juvenile offenders with no cells, no bars, and no weapons to help prevent unauthorized departures. Additionally, Appellant maintains that Appellee was negligent, as he was a supervisor of the juveniles on the night in question, but left the area, leaving one other supervisor to watch twenty-six juveniles, at which time the two juveniles fled.

In viewing the testimony in a light most favorable to Appellee, there was evidence from which the jury could have found Appellant negligent. The testimony revealed questions concerning insufficient staff at OWI. James Coulverhouse, the interim Executive Director of OWI, admitted that OWI failed to keep sufficient staff to supervise the juveniles on the night in question. The evidence also revealed the fact that employees were not provided a place for the safe keeping of their personal belongings, while the keys for the OWI vehicles were locked in a cabinet in an office that was also locked and inaccessible to the juveniles. In addition, the testimony reflected that the gate that provides access to the facility was not locked on the night in question.

In short, there was substantial evidence presented from which the jury could have concluded that Appellant was negligent in failing to provide a secure storage place for the employees’ personal car keys, especially given the fact that Appellant and its staff were apparently aware of the possibility of vehicles being taken by the juvenile offenders, as they secured the keys to OWI vehicles in a locked cabinet in a locked office. Furthermore, the jury could have reasonably concluded that the intervening acts of the juveniles in stealing the truck and wrecking it could reasonably have been anticipated by Appellant such that its negligence was the proximate cause of Appellee’s damages. We thus conclude there was substantial evidence to support the jury’s verdict on the issues of negligence and causation, and that the trial court committed no error in denying Appellant’s motion for a directed verdict.

Assumption of Risk

Appellant argues that the trial court erred in failing to give Appellant’s requested instruction on assumption of risk. The theory of assumption of risk bars recovery when it is shown as a matter of law, that a dangerous situation existed which was inconsistent with plaintiffs safety, that plaintiff knew the dangerous situation existed and realized the risk of injury, and plaintiff voluntarily exposed himself to the dangerous situation which proximately caused his injuries. Capps v. McCarley & Co., 260 Ark. 839, 544 S.W.2d 850 (1976). As noted previously, Arkansas is a comparative fault state. This court determined in Dawson v. Fulton, 294 Ark. 624, 745 S.W.2d 617 (1988), that because the jury must compare negligence pursuant to section 16-64-122, the doctrine of assumption of the risk is no longer applicable in Arkansas as a separate theory.

It is not error for the trial court to refuse a proffered jury instruction when the stated matter is correctly covered by other instructions. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). Each party has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). The trial court here instructed the jury as to comparative fault, and that appellee had the burden of proving that he had sustained damages, that Appellant was negligent, and that Appellant’s negligence was a proximate cause of his injuries. The trial court was thus not obligated to give an instruction on assumption of risk when it is no longer a defense in Arkansas.

Charitable Immunity

Appellant asserts that the trial court erred in failing to dismiss the complaint against Appellant as it is entitled to charitable immunity. We disagree. The Arkansas Volunteer Immunity Act, Ark. Code Ann. §§ 16-6-101 — 105 (Repl. 1994), defines “volunteer agency” as “any volunteer program of all departments, institutions, and divisions of state government, community volunteer organization, or any not-for-profit corporation which has received a 501(c)(3) designation from the United States Internal Revenue Service, other than one established principally for the recreational benefit of its stockholders or members [.]” Section 16-6-104(c) provides that while a qualified volunteer is entitled to immunity, “[n]othing in this chapter shall be construed to Emit the liability of any volunteer agency.” Accordingly, as a volunteer agency, Appellant is not entitled to immunity under the Arkansas Volunteer Immunity Act.

Furthermore, Appellant is similarly not immune from tort liability under the common-law doctrine of charitable immunity. In Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995), this court recently admonished that although we still recognize the common-law doctrine of charitable immunity, it is to be very narrowly construed. To determine whether an organization is entitled to charitable immunity, we provided in Masterson the following illustrative, but not exhaustive, list of factors:

(1) [WJhether the organization’s charter limits it to charitable or eleemosynary purposes; (2) whether the organization’s charter contains a “not-for-profit” limitation; (3) whether the organization’s goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its service free of charge to those unable to pay; and (8) whether the directors and officers receive compensation.

Id. at 401, 902 S.W.2d at 809 (footnote omitted).

Considering those factors, we conclude that Appellant is not entitled to charitable immunity for several reasons. First, Appellant’s “charter,” or Articles of Incorporation, do not limit the corporation to eleemosynary purposes; in fact, there is no statement of purpose in the Articles of Incorporation other than the designation that OWI is a “Public-Benefit Corporation.” Second, although Appellant is exempt from federal taxation under section 501(c)(3) of the Internal Revenue Code, there is no information in the record as to whether its goal is to break even. Moreover, Appellant is almost exclusively funded by the state and thus not dependent upon charitable contributions for its funding. Likewise, the state pays for the services rendered by Appellant to juvenile offenders, therefore, such services cannot be classified as being “free of charge.” Furthermore, Appellant concedes that it must return any surplus funds to the state treasury pursuant to Ark. Code Ann. § 9-28-212 (Supp. 1995), instead of using the funds for charitable purposes. Finally, Appellant’s officers are compensated for their services to the corporation. In sum, under the totality of the relevant facts and circumstances, the trial court did not err in concluding that Appellant is not entitled to charitable immunity under either the common-law doctrine or the Arkansas Volunteer Immunity Act.

Incidental Expenses

Appellant argues that the trial court erred in instructing the jury that the measure of damages included incidental damages. The trial court instructed the jury that in awarding damages to Appellee it could consider:

The difference in the fair market value of his truck immediately before and immediately after the occurrence plus a reasonable amount for loss of use and other incidential [sic] expenses; such as storage fee.

We do not decide this issue because the total award of damages of $26,400 appears to include only the fair market value of Appellee’s truck, which is provided for in the AMI damage instruction, loss of use, and storage expenses, which Appellant conceded was allowable. Thus, even though, arguably, the trial court may have erred in instructing the jury as to “other” incidental expenses, the error was harmless because Appellee was not awarded any such damages. Where the giving of an erroneous instruction was harmless, the appellate court will affirm. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). No prejudice was shown, therefore, the giving of the incidental damage instruction was harmless error.

Affirmed.

Newbern, Glaze, and Brown, JJ., dissent.

David Newbern, Justice,

dissenting. This is a negligence case. The majority opinion rejects the sufficiency-of-the-evidence argument of Ouachita Wilderness Institute, Inc., on the ground that no argument on “duty” was presented to the Trial Court. The directed-verdict motion contained this sentence: “The plaintiff has failed to establish a negligence case.” Negligence is nothing other than the violation of a duty to act or not to act in a certain way.

In other words, “duty” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same — to conform to the legal standard of reasonable conduct in the light of apparent risk.

W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser & Keeton on Torts, p. 356 (5th Ed. 1984). It was enough for the Institute to question whether the facts proven amounted to negligence. It was for the jury to decide whether the actions of the Institute were, what “a reasonably careful person . . . would not do under circumstances similar to those shown by the evidence in this case.” AMI 301.

The problem, however, is that the Trial Court declined to give a jury instruction patterned on Ark. Code Ann. § 16-64-122(c) (Supp. 1995). That subsection, found in our basic comparative fault statute, provides: “The word ‘fault’ as used in this section includes any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party.” [Emphasis supplied.] We no longer allow an “assumption of risk” instruction which would inform the jury that if the plaintiff assumed the risk the defendant is not liable. Rogers v. Kelly, 284 Ark. 50, 679 S.W.2d 184 (1984). That does not mean, however, that in applying the statutory comparative fault scheme the jury should not be informed that “fault” includes “risk assumed.” Thus informed, the jury can intelligently compare the fault of the parties.

The Institute’s proffered instruction number 11 was, “When I use the word ‘fault’ in these instructions, I mean negligence and assumption of risk.” That was a proper instruction which should have been given. The refusal to give it was prejudicial to the Institute’s case.

I respectfully dissent.

Tom Glaze, Justice,

dissenting. I disagree with the majority that Ouachita Wilderness Institute failed “to clearly set out the theory of duty in its motion for directed verdict.” The basic law of negligence is that there must be a determination of what duty, if any, is owed before factual issues of breach, proximate cause, and damages can be determined. See First Commercial Trust Co. v. Lorcin Eng’g, Inc., 321 Ark. 210, 900 S.W.2d 294 (1995); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). Clearly by arguing to the trial court that Mergen failed to establish a negligence case, OWI was challenging Mergen’s burden to first establish what duty, if any, OWI owed to Mergen as a matter of law.

The threshold inquiry in a negligence case is whether the defendant owes a legal duty to the plaintiff. Here, then, the initial issue to decide is whether OWI, as owner and operator of the juvenile rehabilitation camp, owed any duty to employee Mergen to protect him from the illegal activities of the juveniles. If no duty was proved owed to Mergen, OWI’s directed verdict motion should have been granted.

In Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983), the court stated the rule that one ordinarily is not liable for the acts of another unless a special relationship exists. 279 Ark. at 300. This court in First Commercial Trust Co. v. Lorcin Eng’g, 321 Ark. 210, 215, 900 S.W.2d 202, 204 (1995), adhered to the more exact rule that, in general, no liability exists in tort for harm resulting from the criminal acts of third parties, although liability for such harm sometimes may be imposed on the basis of some special relationship between the parties, citing employer to employee as an example. See also 57A Am.Jur. 2d, Negligence, §§ 105, 109 (1989). Further, even when a special relationship exists, a duty to protect another from a criminal act may not be imposed unless the harm is foreseeable. Keck, 279 Ark. 294, 652 S.W.2d 2.

My review of the record reflects that Mergen fell short of his burden showing that OWI owed him a duty to protect his truck key from theft. Mergen presented no evidence that OWI should have foreseen that the boys would steal his truck key from his jacket pocket. In fact, Mergen testified that he had previously left his keys in his jacket or coat unattended without incident, even though Mergen stated that he knew there was a risk in doing so. OWI had the right to assume Mergen would exercise some care for his personal property. Finally, except for a brief reference to the break-in of a box where OWI had kept its motor-pool keys at one time, Mergen presented no evidence of any criminal activity occurring at OWI sufficient to place OWI on notice that employees’ personal property was not safe from criminal acts by the juveniles. Because Mergen failed to carry this elementary burden, I would reverse.

Brown, J., joins this dissent.

       The majority also holds OWI was required to object to AMI 305(b), the duty of care instruction, before OWI could preserve its legal-duty argument on appeal. However, OWI preserved its duty-owed argument when it raised its directed verdict motion, arguing Mergen’s evidence failed to prove OWI was negligent.