author: DONALD L. CORBIN, Justice.

text:
    Mary DEWITT v. Carnell JOHNSON and Pamela Akins
    01-1346
    77 S.W.3d 530
    Supreme Court of Arkansas
    Opinion delivered June 13, 2002

      Robert Scull, P.A., by: Robert Scull, for appellant.

      Bennie O’Neil, for appellee.
   DONALD L. CORBIN, Justice.

The issue in this case is whether an attorney had authority to settle his client’s ejectment case. Appellees Carnell Johnson and Pamela Akins filed a petition for ejectment against Appellant Mary Dewitt on August 20, 1999. Trial was set for June 12, 2000, in the Pulaski County Circuit Court. On that same date, the parties’ attorneys notified the court that the matter was settled. The settlement provided that Dewitt would surrender possession of the property in one year, and, in exchange, Johnson and Akins would pay her $5,500 for improvements that she had made to the property. Thereafter, Dewitt advised her attorney, Donald S. Ryan, that she did not wish to consummate the settlement.

On August 21, 2000, the trial court held a hearing to determine whether Ryan had been authorized by Dewitt to make the settlement. After hearing testimony from Ryan and Dewitt, the trial court concluded that Ryan had been authorized to enter into the foregoing settlement. An order reflecting the court’s ruling was entered on August 23, 2000. Dewitt appealed to the Arkansas Court of Appeals, which dismissed the appeal for lack of a final order. See Dewitt v. Johnson, CA 00-1240 (Ark. App. June 13, 2001). On remand, the trial court entered a new order that concluded the litigation, and Dewitt again appealed. The case was then certified to us pursuant to Ark. Sup. Ct. R. l-2(a)(5). For reversal, Dewitt argues that Ryan did not have authority to settle her case and that the trial court erred in concluding otherwise. We find no error and affirm.

During the August 21, 2000, hearing, Ryan described his recollection of the settlement conversation he had with Dewitt:

But I told Mary that as I understood the law and the facts, she had no interest in the property. She had done some betterments. And the offer was $5,500, payable over a year, where she could stay there in there for a year. . . .
Mary is a friend of mine, as well as a client. I’ve done other stuff for [her] and her family over the years. And I was very concerned that if we went to trial, she might not get anything. When they offered that money, I made a strong argument to her that she should settle it. Mary was emotional and upset, and then she — the consent she gave me consisted of this, Judge. She said, “Well, it sounds like I really have no choice.” And I said, “You really don’t.”
I’ve got to say she never said, “That’s a good settlement. Take it.” She never said, “Take the money.” But I then called [opposing counsel] and told her that it was settled, call the court, call the witnesses. And after that, [Mary’s] son, Bill, called me and said, “Mother is in here crying and upset, and she doesn’t want to take it.” So I felt it was settled, but it was on my strong recommendation. And Mary was emotional and upset at the time. But I thought she was telling me to take it, so I said take it, because I felt it was as good a deal as she could get.

Upon further questioning by the trial court, Ryan again stated that in his mind, he had the authority to settle the case.

The court then asked Dewitt if that was the way she remembered the events. Dewitt stated that she remembered talking to Ryan about the settlement, but that she could not recall the conversation “word for word.” She stated that she did not recall saying “it sounds like I have no choice.” She further indicated that she just did not remember what she had said. Later on, however, Dewitt told the court that she had not said “it sounds like I have no choice.” At that point, the trial court decided that both Ryan and Dewitt should give formal testimony.

During his sworn testimony, Ryan recounted his conversation in substantially the same way he had done before being placed under oath. Ryan also testified that when Dewitt told him “It sounds like I have no choice,” he said: “Based on that, I’m going to settle your case.” He stated that Dewitt did not say anything after that. Ryan stated, “I took it as her approval for me to settle the case, based on my best judgment of what she should do.” On cross-examination, Ryan admitted that Dewitt had told him that the offer was not enough money to cover what she had been through and that it would not cover the amount of money that she had put into the property. Ryan also admitted that Dewitt told him that she did not think that the offer was a good deal. Ryan, however, responded to her concerns by giving her reasons why, in his judgment, she should settle the case.

Dewitt then testified. She stated that she did not think that it was fair that Johnson could come in and kick her off the property and only give her $5,500. She recalled telling Ryan that what Johnson was doing to her was not fair, and that $5,500 was not enough to cover what she had gone through in remodeling what previously had been a restaurant into a home. The court then asked Dewitt if she recalled the conversation with Ryan in which she said that she did not have any choice in the matter. Dewitt responded, “No, sir.” The court then asked, “Are you saying that didn’t happen?” Dewitt then stated, “I’m saying I don’t remember it.”

Following Dewitt’s testimony, the trial court ruled that Ryan had authority to settle Dewitt’s case. The trial court found significant Ryan’s testimony that Dewitt had told him that it sounded like she had no choice. For reversal, Dewitt argues that the trial court erred in finding that Ryan had authority to settle her case. She relies on Rule 1.2(a) of the Model Rules of Professional Conduct, which provides in part: “A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter.” For the reasons set out below, we affirm the trial court’s ruling.

The law is well settled that an attorney employed to conduct litigation involving property has no implied or apparent authority, solely by reason of his or her employment, to bind the client in regard to the subject matter of the litigation, except with respect to matters of procedure. McCombs v. McCombs, 227 Ark. 1, 295 S.W.2d 774 (1956); Cullin-McCurdy Constr. Co. v. Vulcan Iron Works, 93 Ark. 342, 124 S.W. 1023 (1910). Stated another way, an attorney cannot, by virtue of his or her general authority as attorney, bind the client by any act that amounts to a surrender or waiver, in whole or in part, of any substantial right of the client. McCombs, 227 Ark. 1, 295 S.W.2d 774. “An attorney is not permitted to compromise his client’s cause of action or judgment without permission.” Turner Furnishing Goods Co. v. Snyder, 201 Ark. 699, 702, 146 S.W.2d 913, 914 (1941).

The question presented in this appeal is: What constitutes permission or authority to settle? This court and the court of appeals have recognized that an attorney’s authority to compromise or settle the client’s claim may be apparent or inferred from the client’s actions and communications, regardless of whether the client has expressly instructed the attorney to settle the case. See Laird v. Byrd, 177 Ark. 1114, 9 S.W.2d 571 (1928); Rowland v. Worthen Bank & Trust Co., 13 Ark. App. 139, 680 S.W.2d 726 (1984); Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981). “[A] client may clothe his attorney with as much or as little authority as he deems appropriate for the satisfactory conduct of his affairs.” Rowland, 13 Ark. App. at 143, 680 S.W.2d at 728. Thus, whether an attorney has authority to settle or compromise the client’s case is a question for the trier of fact to determine. See Brady v. Bryant, 319 Ark. 712, 894 S.W.2d 144 (1995); Laird, 177 Ark. 1114, 9 S.W.2d 571; Rowland, 13 Ark. App. 139, 680 S.W.2d 726; Walker, 3 Ark. App. 205, 626 S.W.2d 200. In reviewing a finding of fact by a trial judge, we view the evidence and all reasonable inferences therefrom in the light most favorable to the appellee. Brady, 319 Ark. 712, 894 S.W.2d 144. We will not reverse the trial court’s findings unless they are clearly erroneous. Id. Any conflicts in the testimony are for the trial court to resolve, and we will defer to the trial judge’s superior position to judge and determine the credibility of the witnesses. Id.

Here, there was conflicting testimony given by Ryan and Dewitt. Ryan stated that on the date the case was scheduled for trial, he informed Dewitt of the settlement offer made by Johnson and Akins. Ryan stated that he strongly advised Dewitt to take the offer based on his legal judgment that she would likely get nothing if the case went to trial. Ryan stated that Dewitt then stated: “It sounds like I have no choice.” Ryan admitted that Dewitt never expressly told him to settle-the case or take the offer. However, Ryan viewed her statement about not having a choice as authorizing him to settle her case. Indeed, he testified that when she made the statement, he responded by stating: “Based on that, I’m going to settle your case.” Dewitt did not say anything after that, and Ryan took her silence as further approval for him to settle her case. Dewitt initially told the trial court that she did not tell Ryan “It sounds like I have no" choice.” Under oath, however, Dewitt merely stated that she did not recall making the statement.

Viewing the evidence in the light most favorable to Johnson and Akins, we cannot say that the trial court was clearly erroneous in finding that Ryan had authority to settle Dewitt’s case. The trial court clearly believed that Ryan’s testimony was more credible than Dewitt’s. As the trier of fact in this matter, the court was well within its discretion in assigning more weight to Ryan’s testimony. Accordingly, we must affirm the trial court’s judgment enforcing the settlement between the parties.

Imber, J., not participating.


source: Caselaw Access Project

author: ROBERT L. BROWN, Justice.

license: Public Domain

text:
    Larry Darnell BRUNSON v. STATE of Arkansas
    CR 01-1172
    79 S.W.3d 304
    Supreme Court of Arkansas
    Opinion delivered June 13, 2002

      Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   ROBERT L. BROWN, Justice.

Appellant Larry Darnell Brunson was convicted of two counts of first-degree murder and was sentenced to two life terms, to run consecutively. His appeal consists of three allegations of error relating to the testimony of Barbara Ann Neiss: (1) that he was not sufficiently advised that Ms. Neiss would be an expert witness, in violation of Ark. R. Crim. P. 17.1; (2) that Ms. Neiss was not qualified to render an opinion on his proclivity to murder; and (3) that Ms. Neiss’s opinion embraced the ultimate issue for the jury to decide and was unduly prejudicial. The trial court qualified Ms. Neiss as an expert on profiling batterers and determining when they are likely to murder victims they have previously abused. In her testimony at trial, Ms. Neiss’s profile identified Brunson as one who met eight of ten risk factors for a batterer who will turn murderer. Brunson contends that Ms. Neiss was not qualified to render an opinion on the likelihood that he would murder his wife and her lover and that profiling him was unduly prejudicial. We agree that the trial court abused its discretion in permitting Ms. Neiss to offer her opinion. We reverse the judgment of conviction and remand for further proceedings.

Appellant Larry Brunson and his wife, Gloria Brunson, were married and had two children, Latisha Brunson and Larry Brunson, Jr. The Brunson family lived in Pine Bluff where Gloria Brunson worked for the Social Security Administration from 1979 until her death in 1999. In the late 1990s, Larry and Gloria Brunson became estranged and separated. After the separation, Larry Brunson began harassing his wife. For three years leading up to the shootings in 1999, Gloria Brunson was romantically involved with another man, Frankie Shaw, who was Larry Jr.’s basketball coach.

During the years that Larry and Gloria Brunson were estranged, Larry Brunson called his wife numerous times during the day at her office in the federal building in Pine Bluff and at home. In addition to this behavior, Brunson was physically violent to his wife on a number of occasions. Because of this behavior, Gloria Brunson obtained a permanent protective order against her husband on July 21, 1998. The permanent order was continued on December 29, 1998 and expanded to include her children who sought protection against their father. Despite the protective order, Brunson’s harassment of his wife continued.

On multiple occasions, Gloria Brunson filed for divorce from her husband. Her most recent attempt at divorce occurred in November 1998, just before she went to Dallas, Texas, to begin a three-month job-training session. From November 16, 1998, to February 4, 1999, she lived in Dallas. She asked that her co-workers with the Social Security Administration not disclose her whereabouts or any contact information about her. Her co-workers resisted Brunson’s repeated requests for the information. Brunson eventually learned where she was and traveled to Dallas where he found her hotel room. He appeared unannounced at the training center, and as a result of his appearance, Gloria Brunson changed her hotel room number and took copies of her protective orders and her husband’s photograph to Social Security Administration security personnel.

When Brunson was in Dallas, he stayed with a friend, Dennis Wayne Dilworth, for four days. Dilworth described Brunson at trial as obsessed with his estranged wife. Dilworth also testified that Brunson had a handgun with him during his time in Dallas but that he never heard Brunson make threatening comments about his wife.

In December 1998, Gloria Brunson took a three-week break from her training in Dallas and returned to Pine Bluff for the holiday season. On December 19, 1998, Brunson allegedly planted crack cocaine in his wife’s car and then called the Arkansas State Highway Police anonymously. He told them that a white vehicle with a particular license plate number was transporting drugs and possibly a murder weapon. A state trooper pulled Gloria over and found crack cocaine in a brown paper bag that had been wedged underneath the dashboard of the car. Gloria Brunson was extremely upset and told the trooper that she had been framed by her husband. The trooper believed her story and allowed her to leave without arrest.

At trial, the Brunsons’ daughter, Latisha, testified for the State. She described constant phone calls from her father to her mother at their residence. She stated that when her mother would change the telephone number, her father would find a way to get the number by fabricating a story about why he needed it. She also testified that during the spring of 1999, she went to her mother’s house and found her father there with a locksmith attempting to gain entry into the house. She also saw him on a number of occasions walking around the perimeter of the house.

She related one incident in 1998 when her father had threatened to commit suicide. She and her mother were at home, and her mother and father had been fighting. He told her that he had a gun and was going to kill himself. He locked himself in a bedroom, and Latisha and her mother heard a gunshot. As it turned out, he had shot a bullet through the window and did not harm himself. Latisha testified that also in 1998, her mother found sugar spread over the engine of her car. She attributed this act of vandalism to her husband. Latisha also testified that during 1998, her father burned some of her mother’s clothing, and a neighbor had to call the fire department. Latisha further testified that she heard her father threaten to kill Frankie Shaw.

There were several State witnesses who testified that they had gradually come to understand that Gloria Brunson was romantically involved with Frankie Shaw, although she took steps to prevent this fact from becoming common knowledge. There was testimony that Shaw had visited her in Dallas. Also, Brunson had begun questioning his wife’s friends and coworkers about the nature of her relationship with Shaw. According to their testimony, none of Gloria Brunson’s friends or coworkers told Brunson that Gloria Brunson and Shaw were romantically linked.

At about 8 a.m. on April 25, 1999, Pine Bluff Police Officer Gregory Shapiro was dispatched to Frankie Shaw’s home. When he arrived, he found two shooting victims on the driveway of his home. Both were deceased. The victims were identified as Gloria Brunson and Frankie Shaw. Officer Shapiro called the homicide unit to the scene. The associate medical examiner, Charles Paul Kokes, testified at trial that Gloria Brunson had been shot in the head four times, with one of the shots having been fired at close range. Shaw had been shot three times in the head, and two of his wounds were apparently sustained as he lay on the ground. There was also a bullet hole in the driver’s side of Shaw’s car that was consistent with the height of a driver’s head. There was blood in Shaw’s car. The bodies had apparently been left on the driveway overnight, because they were rainsoaked and rigor mortis had set in. Money had been left in Shaw’s wallet, and Shaw’s house did not appear to have been entered or ransacked.

A witness for the State, Erica Waddell, testified that Brunson appeared at his parent’s house on the night of the murders. She was there visiting her boyfriend, and she saw Brunson enter the house. He changed clothes and then left the house with the bag in which he kept his gun. He returned about an hour later without the bag. He then went to sleep.

Homicide detectives began talking to Gloria Brunson’s friends and relatives, and they developed Brunson as a suspect based on those conversations. Before they could locate Brunson, he called the Pine Bluff police station. Police officers next went to his home and requested that he accompany them to the police station. He told the police officers that his .45 caliber pistol, which was consistent with that used as the murder weapon, had been stolen from his car some days earlier. Brunson gave his consent for the police officers to search his home and vehicle, but the murder weapon was never found.

On May 17, 1999, Brunson was arrested and charged with two counts of capital murder for the shooting deaths of Gloria Brunson and Frankie Shaw. The criminal information was later amended to change the charges to two counts of first-degree murder. On April 3, 2000, a three-day trial ensued.

At trial, the State presented the testimony of law enforcement officers as well as Gloria Brunson’s friends, co-workers, and children. They testified to the events already related, as weE as to their individual encounters with Brunson and the fact that Brunson kept a gun and sheEs in a bag at his residence. One witness, Jennie Green, testified that she saw an encounter between the victims and a black man who appeared to be armed on the day of the kiEings. The man threatened Gloria Brunson, but Ms. Green could not positively identify Brunson as the man involved.

The State’s last witness at trial was the State’s proposed expert, Barbara Ann Neiss. She gave her qualifications as having a bachelor’s degree in political science and journalism; a master’s degree in public administration; work towards a master’s degree in social work; one year’s employment with the Arkansas Commission on Child Abuse, Rape and Domestic Violence; Executive Director for Advocates for Battered Women, now caEed Women and Children First, in Little Rock for just under three years; volunteer work for the Battered Women’s Shelter and in assisting women to get protective orders for about ten years; work as a facilitator for an educational group for men who batter in Little Rock; work at a Mediation Center to negotiate with women and violent husbands; attendance at national seminars on domestic violence, including the CoEege of District Attorneys; currently serving as a commissioner on the Litde Rock Commission on Domestic Violence and a past co-chair; past service on the Board of the Arkansas Coalition Against Domestic Violence; subscriber to literature on domestic violence; local author of papers on domestic violence; witness before committees of the General Assembly for the past two sessions on domestic violence; having testified once in circuit court; and having testified on several occasions in chancery court in support of protective orders, but not as an expert. Over Brunson’s objection, the trial court certified Ms. Neiss as an expert. The trial court determined that she was qualified under Ark. R. Evid. 702, because she possessed specialized knowledge that would assist the jury in understanding the evidence in this case. The court further ruled that Ms. Neiss could testify about certain factors that indicate that a batterer wiE escalate into a murderer. The court stated it did not believe that the prosecutor would elicit from Ms. Neiss her opinion on whether Brunson was likely to kiE.

After Ms. Neiss’s qualification as an expert, defense counsel again objected on grounds of surprise and a discovery violation. Defense counsel objected to the fact that the prosecution had not been forthcoming about Ms. Neiss’s status as an expert or her anticipated testimony, and he moved for a mistrial. The trial court granted Brunson a continuance for one night to give defense counsel an opportunity to interview Ms. Neiss.

The next morning, which was the third day of trial, the trial court reconvened and denied Brunson’s motion for a mistrial. The State was allowed to elicit its testimony from Ms. Neiss. Ms. Neiss then testified to ten risk factors that indicate that a domestic batterer may kill. She stated that she had taken the ten factors from the work of a police officer, Anne O’Dell, who surveyed 70,000 cases and assembled what she thought were ten warning signs that a domestic-violence offender would commit murder. The article by Ms. O’Dell was entitled “Assessing Whether Batterers Will Kill.” Ms. Neiss used a three-page summary of this article prepared by an attorney, Barbara Hart, and obtained off the internet, in her testimony. Ms. Neiss testified that if more than three of the factors are met, then there is an “incredible duty” to warn a woman of the threat to her safety. The ten risk factors testified to were these:

(1) threats of homicide against his spouse or children or threats of suicide; (2) fantasies of homicide or suicide; (3) depression; (4) access to weapons; (5) obsessive behavior about his wife or family; (6) centrality of the battered woman to the batterer’s life; (7) rage against the battered woman; (8) drug or alcohol consumption; (9) abuse of the battered woman’s pet animal; and (10) access to the battered woman.

Ms. Neiss analyzed the Brunsons’ relationship and concluded that Larry Brunson met all of the risk factors except drug or alcohol consumption and pet abuse. She concluded her testimony by emphasizing that when even three of the factors are met, there should be serious concerns for a woman’s safety.

After the close of the State’s case, defense counsel moved for a directed verdict based on insufficient evidence. It was denied, and the defense rested without any presentation of evidence. The jury returned a guilty verdict on both counts of first-degree murder, and Brunson was sentenced to two terms of life imprisonment.

For his sole point on appeal, Brunson argues that the trial court erred in admitting the testimony of Barbara Ann Neiss as an expert. Brunson advances three theories of error, but it is his second and third points that we conclude constitute reversible error. Under these two points, he contends that the fact the trial court qualified Ms. Neiss as an expert and then allowed her to establish a profile on the predictability that a batterer will become a murderer, using ten risk factors, and that Brunson fell within that profile was an abuse of discretion. We agree.

a. Qualifications

Brunson first argues that Ms. Neiss was not qualified to testify as an expert on whether domestic-violence offenders will eventually kill their victims. On the issue of Ms. Neiss’s qualifications to so testify, the trial court ruled: '

But first of all, Ms. Neiss testified that she had been working in the area of domestic violence for a protracted period of time. It would appear, to some degree, in excess of 10 years, and it may have been off and on, because she has gone back to school a couple of times. What the Court can recall from her testimony was that she has a bachelor’s degree, and the Court does not recall what it was in, but that she has a master’s in public administration, is pursuing a master’s in the sociological field; that she has had diverse work in several areas of domestic violence, have coordinated programs and is presently coordinating programs in this area. That she has testified in circuit [court] on one occasion, in chancery court upon numerous occasions in the assistance of helping women who were victims of domestic violence.
When we look at 702, it would appear to the Court that Ms. Neiss, through her knowledge, experience, training, several seminars and education, should have knowledge that would be beneficial to the jury, and we believe that she has specialized and technical knowledge that should assist the trier of fact to understand the evidence that the State has attempted to put on, and should help the jury in determining a fact in issue. A fact in issue is whether or not a person with a pattern of domestic abuse, as has been presented by the State, is capable of escalating that to the point of a homicide.
And the Court would find that Ms. Neiss is an expert and should be permitted to testify by giving her opinion on domestic abuse and its escalation.
* * *
Her having not completed her master’s in a sociological field and such, I don’t think, to be an expert, she would have to have such a master’s. I would believe that she could probably gain her work and experience sufficiently from working in the area to be an expert in the field. However, I believe your arguments, from a defense perspective, goes to the weight and the credibility to be given to her testimony rather than whether it should be submitted.

Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000); Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997); Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). Rule 702 of the Arkansas Rules on Evidence entitled “Testimony of Experts” reads: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” We have said that if some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995); Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).

The question in this case is whether Ms. Neiss “has knowledge of the subject beyond that of ordinary knowledge.” Stout, 320 Ark. at 560, 898 S.W.2d at 462. We perceive the real dispute in this case to be over defining what was the subject of Ms. Neiss’s testimony. Brunson maintains that Ms. Neiss testified far beyond her realm of expertise about complicated issues of forensic psychiatry, because she gleaned from Brunson’s behavior as a domestic abuser and stalker certain warning signs that placed him within a profile that predicted he would become homicidal. Stated differently, Brunson complains that Ms. Neiss weighed and forecast his behavior by comparing his case with others and by using ten risk factors to do so. In sum, he contends that she had no experience or background that would enable her to predict when and under what circumstances a stalker like Brunson would become a murderer.

The State responds that Ms. N'eiss’s testimony was helpful to the jury and, thus, it qualifies as expert testimony. Yet, in doing so the State only addresses one facet of Rule 702 and never squarely addresses the other facet of whether Ms. Neiss was qualified by knowledge, skill, experience, training, or education to give an opinion that was helpful to the jury. The problem we see with the State’s argument is that testimony may be helpful to a jury but still may be properly excluded if that testimony is offered by a person who is not qualified to render the opinion. The trial court, in its ruling, appears to have similarly conflated the issue of a person’s qualifications and the “helpfulness” of the testimony.

This court has held that while a proffered expert’s experience might have been beyond that of persons who had no experience at all in the general area to which he would testify, it was not error to refuse to qualify him as an expert when his knowledge was below the standards of most recognized experts in the subject field. Dillon v. State, 317 Ark. 384, 394, 877 S.W.2d 915, 920 (1994). See also Stout v. State, supra (no error where trial court refused to qualify proffered expert on weighing marijuana, where proffered expert had been a drug counselor and his expertise was that he could tell the difference between the various parts of the marijuana plant); Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997) (trial court properly refused to qualify recreational hunter as expert on bullet fragmentation). Other jurisdictions have likewise been circumspect in identifying precisely what is the proffered expert’s field of expertise and whether the testimony will fall within that field. See, e.g., Johnson v. State, 58 S.W.3d 496 (Mo. 2001) (experience treating sex offenders in prison did not qualify “associate psychologist” to diagnose defendant as one likely to engage in predatory of acts of sexual violence); Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001) (licensed clinical social worker not qualified to testify defendant could be rehabilitated in an institutional setting); State v. Willis, 256 Kan. 837, 888 P.2d 839 (1995) (social worker not qualified to make diagnosis that victim suffered from post-traumatic stress disorder, also known as rape trauma syndrome).

We have no doubt that predicting human behavior, and specifically whether a person has a proclivity to murder based on certain risk factors, requires a highly specialized psychological expertise. Ms. Neiss, while a bona fide expert on domestic abuse, exceeded her expertise by profiling batterers who will kill and by conveying to the jury that Brunson fell within that profile. A case in point of Ms. Neiss’s testifying far beyond her range of expertise was her conclusion that Brunson suffered from depression — one of the ten risk factors. Ms. Neiss did not possess the necessary psychiatric background to render such a diagnosis. The trial court abused its discretion in qualifying her to so testify.

b. Profiling

Because the issue of profiling is likely to recur in the retrial of this matter, we address it. Brunson contends that Ms. Neiss’s testimony led the jury irresistibly and ineluctably to a verdict that he had transformed from stalker to murderer. In doing so, he claims that she gave her opinion on the ultimate issue of the case and invaded the province of the jury. Her testimony further violated Rule 403 of the Arkansas Rules of Evidence, he asserts, in that the testimony was more prejudicial than probative. He contends that her testimony should have been excluded. We agree.

Rule 704 of the Arkansas Rules of Evidence provides that “[testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Ark. R. Ev. 704; Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). In Marts, we said with regard to Rule 704:

This court has recognized that the trend of authority is not to exclude opinion testimony because it amounts to an opinion on the ultimate issue. See, e.g., Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). Such opinion testimony is admissible provided that it does not mandate a legal conclusion. Id. This court has previously drawn the fine distinction between an admissible opinion that “touches upon the ultimate issue” and an opinion, not admissible, that “tells the jury what to do.” Salley v. State, 303 Ark. 278, 283, 796 S.W.2d 335, 338 (1990) (citing Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981)).

Marts, 332 Ark. at 642, 968 S.W.2d at 48.

The question in this case is whether Ms. Neiss’s testimony in effect “mandated a legal conclusion,” or, alternatively, whether it was unduly prejudicial. We believe that her profile testimony both mandated a conclusion and was unduly prejudicial. After a description of each one of the ten risk factors Mrs. Neiss borrowed from the article by Ms. O’Dell, the prosecutor elicited an opinion from her regarding whether she thought that Brunson met the factors in this case. For eight of the ten factors, Ms. Neiss answered affirmatively. Then, at the end of her testimony, the following exchange took place:

Prosecutor: And you’re saying there were two areas, you say he didn’t — no evidence suggests he satisfied? One was the alcohol area; and one was pet abuse; is that correct?
Ms. Neiss: Exactly.
Prosecutor: But you said he satisfies at least eight —
Ms. Neiss: Eight.
Prosecutor: — out of ten.
Ms. Neiss: Yes.
Prosecutor: And you said, after three that you better have serious concerns?
Ms. Neiss: Exactly.

It is true that the prosecutor did not ask Ms. Neiss specifically whether Brunson killed the victims. Nevertheless, her profile about abusers-turned-murderers and Brunson in particular placed Brunson squarely in the murderer category. This is particularly concerning, since the State’s only proof in this case was circumstantial and its theory centered around Brunson’s history of domestic abuse and his motive to kill an unfaithful wife and her lover. Ms. Neiss’s testimony, in effect, was clear indication to the jury that Brunson was the culprit.

With respect to undue prejudice, the type of profiling employed in this case and its prejudicial impact has been called into question in other jurisdictions. A compendium of such decisions was set out recently by the Wyoming Supreme Court in a case where the issue was violence between separated spouses and whether a profile of the defendant was appropriately presented to the jury:

Many courts find profile evidence irrelevant. Commonwealth v. Day, 409 Mass. 719, 569 N.E.2d 397 (1991) aptly articulated the reasoning for such a conclusion:
A criminal trial is by its very nature an individualized adjudication of a defendant’s guilt or legal innocence. Testimony regarding a criminal profile is nothing more than an expert’s opinion as to certain characteristics which are common to some or most of the individuals who commit particular crimes. Evidence of a “child battering profile” does not meet the relevancy test, because the mere fact that a defendant fits the profile does not tend to prove that a particular defendant physically abused the victim.
Id. at 399. See also, Percy, 507 A.2d at 960 (Evidence that other rapists often excused or explained their conduct the way the defendant did was not relevant.); State v. Clements, 244 Kan. 411, 770 P.2d 447, 454 (1989) (Evidence which only describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question.); United States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990) (Proof that a person fits the drug courier profile, unsupported by evidence of drug trafficking, proves nothing.); State v. Maule, 35 Wash. App. 287, 667 P.2d 96, 99 (1983) (The relevance of testimony that the majority of child abuse cases involved a male parent figure is not readily chscernable.); State v. Brown, 370 So. 2d 547, 552 (La. 1979) (Unable to see how evidence of drug courier profile is relevant to any issue of innocence or guilt at the trial on the merits.); Duley v. State, 56 Md. App. 275, 467 A.2d 776, 780 (1983) (Evidence of child abuser profile is totally irrelevant because it does not tend to prove that the defendant committed the acts of abuse attributed to him.); United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir. 1983), rehearing denied, 721 F.2d 822 (11th Cir. 1983) (Drug courier profile evidence is nothing more than the opinion of those officers conducting an investigation, and it cannot be used as substantive evidence of guilt.); State v. Hansen, 304 Or. 169, 743 P.2d 157, 161 (1987) (That child abusers use certain techniques to get near their victims has no bearing on whether a person who does these things is a child abuse.); and People v. Bradley, 172 Ill. App. 3d 545, 122 Ill. Dec. 523, 526 N.E.2d 916, 921 (1988) (Evidence showing characteristics of child abuser perpetrators was in no way probative or relevant to the question of whether the defendant committed the crime.).
Even assuming that profile testimony is in some degree relevant to the issues at trial, the danger of unfair prejudice to the accused has generally been found to outweigh the probative value. See Percy, 507 A.2d at 960-61; Simpson, 910 F.2d at 157; Maule, 667 P.2d at 99; Duley, 467 A.2d at 780; Brown, 370 So. 2d at 552; Day, 569 N.E.2d at 399; United States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990), cert. denied, 498 U.S. 1052, 111 S. Ct. 766, 112 L.Ed.2d 785 (1991); and Bradley, 122 Ill. Dec. 523, 526 N.E.2d at 921.

Ryan v. State, 988 P.2d 46, 55-56 (Wy. 1999) (internal footnotes omitted). The Wyoming Supreme Court also examined whether the expert testimony violated the proscription against character evidence, which is not an issue raised in the instant case. The court concluded that the expert testimony was inadmissible but under the facts of the case was harmless error due to the substantial evidence of guilt otherwise presented at trial.

In a similar vein, our court of appeals has held that the psychological profile of a child sex abuser was inadmissible. See Hall v. State, 15 Ark. App. 309, 692 S.W.2d 769 (1985). In Hall, the expert presented testimony which in large part consisted of whether the evidence in Hall’s case corresponded with the proof presented in the “usual case.” Common factors in the usual case, such as whether the perpetrator was known to the victim, where the crime occurred, the age of the perpetrator, the involvement of alcohol, and threatening the child not to tell, were presented by the expert. The court of appeals held that this expert testimony was distractive and prejudicial, and the court reversed and remanded for a new trial.

We hold that the profiling of batterers likely to become killers and then placing Brunson within that category was unduly prejudicial to his case and, thus, violated Rule 403. Because we reverse on the second and third points, there is no need to address the first point regarding the discovery violation. Harmless error was not an issue raised by the State, but because we do not consider the proof in this case to be overwhelming, we do not affirm for that alternative reason.

Reversed and remanded.


author: H."DuB" ARNOLD, Chief Justice.

text:
    Johnny “Red” HUDSPETH v. STATE of Arkansas
    CR 01-1222
    78 S.W.3d 99
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002

      David P. Henry, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   H."DuB" ARNOLD, Chief Justice.

This is an appeal from the trial court’s denial of appellant’s motion to suppress hidden-camera videotape evidence and finding such to be permitted as an “open-field” search. We affirm the trial court.

On July 18, 2000, Mike Moffet, a Criminal Investigator for the Marion County Sheriff s Office, received information from an Arkansas State Police Sergeant that a possible methamphetamine laboratory was located on property adjoining that of Mr. Dennis Hudspeth, appellant’s brother. The property identified is an undeveloped ten-acre tract, abutting a twenty-acre undeveloped tract owned by Mr. Hudspeth.

Investigator Moffet conducted an “open-field search” of the property, by entering from two properties, over-circling around, and coming in from the back, where he found a crude hut and numerous items of apparent drug paraphernalia. Photographs were taken of the hut and the items found. The photos were introduced by the State as exhibits.

On July 19, 2000, Investigator Moffet returned to the site with Tommy Cleveland, an Arkansas State Police Investigator who was asked to place a video-recording device, known as a “groundhog,” near the area to determine whether a methamphetamine laboratory was located there. The video camera was placed approximately twenty yards from the front of the hut.

On or about July 27, 2000, the officers checked the video camera and found appellant Johnny “Red” Hudspeth, his brother Dennis Hudspeth, and a man later identified as Eugene Fischer engaged in an apparent methamphetamine “cook.” However, on July 24, 2000, prior to viewing the tape, Investigator Moffet executed an affidavit in support of the issuance of a search warrant to search the A-frame residence on the property, which is one-eighth mile from the hut or site of the suspected methamphetamine laboratory. After a search of the A-frame residence where appellant resided, an affidavit requesting an arrest warrant was executed on August 1, 2000. The affidavit specifically described the location of the video camera and the identification of appellant and his brother and the acts caught on videotape.

On August 2, 2000, a criminal information was prepared charging appellant with criminal attempt to manufacture a controlled substance (methamphetamine), a class A felony, and possession of drug paraphernalia with intent to manufacture methamphetamine, a class B felony. The information specifically referred to the videotape as a basis for the information. On August 3, 2000, a bench warrant for the arrest of appellant was issued.

On December 8, 2000, appellant filed a motion to suppress, asserting that the unauthorized use of the video camera violated the Fourth and Fourteenth Amendment to the United States Constitution, seeking the suppression of the video tape, including the evidence obtained as a result of the search of appellant’s residence. A hearing was held on March 18, 2001, on appellant’s motion to suppress. After hearing all of the evidence, the trial court denied appellant’s motion. The trial court found that the groundhog camera operations were “open field” and not in violation of the Fourth Amendment.

On April 23, 2001, an amended affidavit was filed by Investigator Moffet seeking a new arrest warrant, charging appellant with the following: possession of a controlled substance with intent to deliver methamphetamine, a class Y felony; manufacturing a controlled substance, methamphetamine, a class Y felony; possession of drug paraphernalia with intent to manufacture methamphetamine, a class B felony; possession of drug paraphernalia, a class C felony; possession of pseudo/ephedrine with intent to manufacture methamphetamine, a class D felony; and simultaneous possession of drugs and firearms, a class Y felony. The amended affidavit specifically set forth the videotape and the items obtained in the search of his residence as the basis for the charges. On April 26, 2001, an amended information was filed, setting forth the video filming of appellant and the items obtained in the search of his residence as the basis for the amended charges which were the same as set forth in the amended affidavit.

On June 25, 2001, conditioned on this Court’s review of the suppression ruling, appellant entered a plea of guilty to manufacture of a controlled substance and possession of a controlled substance with intent to deliver. The balance of the charges were dismissed. Appellant was sentenced to 120 months and 240 months, respectively, to run concurrently. On July 19, 2001, appellant filed his notice of appeal. For his only point on appeal, appellant asserts that the trial court erred by failing to suppress hidden-camera videotape evidence and finding such to be permitted as an “open-field” search. We affirm.

I. Standard of Review

In reviewing a ruling denying a defendant’s motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. We reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997).

II. Discussion

Although appellant states as his point on appeal that the trial court erred by failing to suppress hidden-camera videotape evidence and finding such to be permitted as an “open-field” search, his actual argument does not appear to take issue with the trial court’s conclusion that the search and camera operations were “open field searches.” Rather, his principal argument appears to be that the warrantless video surveillance, by itself, violated the Fourth Amendment and that, because the contents of the tape provided a nexus between his activity in the open field and the items to be seized from the A-frame house, the evidence seized pursuant to the search warrant was the “fruit of the poisonous tree.” Based on the testimony and evidenced adduced at the suppression hearing, however, it is clear that the contents of the videotape had nothing to do with the issuance of the search warrant. As such, we find no error.

At the suppression hearing, Investigator Moffet testified that he received information from the Arkansas State Police indicating that a crude hut on property adjoining the appellant’s contained a methamphetamine laboratory. He started an investigation on July 18, 2000, by conducting an “open-field search,” in which he and Investigator Yancey “entered from two properties over and circled around and came in from the backside.” Investigator Moffet testified that there was an “A-frame” residence nearby, but that he and Investigator Yancey confined their search to an area that was at least 100 yards away. He further testified that as they initially approached the property “approximately a half of a quarter mile” behind the A-frame, they saw a crude hut built from hog panels and a brown tarpaulin. In the area surrounding the hut, they discovered “numerous items of drug paraphernalia.” Additionally, next to an access road on the property, the investigators discovered a camper shell that contained “.41 caliber ammunition and a jar that [they] believefd] could possibly be used to manufacture iodine crystals.”

Investigator Moffet testified that he subsequently contacted Investigator Tommy Cleveland of the Arkansas State Police about installing a “groundhog” video camera on the property “to see if, in fact, there was a methamphetamine laboratory out there.” On July 19, 2000, they installed the camera at a vantage point approximately twenty yards away from the opening of the makeshift hut. At that time, they also discovered eight used HCL generators, which are components of a methamphetamine laboratory. When they collected the videotape about one week later, they discovered that the camera had indeed recorded a “cook” in which the appellant, his brother Dennis, and Eugene Fischer participated.

However, on July 24, 2000, before the officers collected the videotape from the groundhog camera, Investigator Moffet executed an affidavit of probable cause to obtain a search warrant for the A-frame house. In the affidavit, Investigator Moffet alleged that, in the preceding 130 days, an empty can of starting fluid that had been stolen from a canoe rental store and that bore fingerprints that tentatively matched the appellant’s were discovered in a trash pile outside the curtilage of the A-frame house. He further alleged that, within the last ninety days, a “Good Citizen Confidential Informant” reported to an investigator with the Mountain Home Police Department that the appellant’s brother, Brady Horton, and Julia Dodd were manufacturing methamphetamine at the “A-frame house on Rush Road.”

Investigator Moffet then described, in the affidavit, what he saw during the open-field search that he and Investigator Yancey conducted, including a driveway that “began at the Hudspeth driveway and continued back off the potential defendant’s property” and “leading directly” to the makeshift hut, and, within the hut, a note apparently written by the appellant’s brother, Dennis. He also described the components of the methamphetamine laboratory that he discovered on the day that he and Investigator Cleveland installed the video surveillance camera. Because he had not yet viewed the tape, Investigator Moffet apparently did not allege any facts gathered by the “groundhog” video camera in his affidavit to obtain the search warrant. The contents of the videotape, therefore, had no connection with the issuance of the search warrant.

It is well established that only evidence that is discovered by exploitation of an illegality can be suppressed as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). In other words, there must be a causal connection between the alleged illegal conduct by the police and the discovery of the evidence that is claimed to be the “fruit” of the illegality. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (setting forth factors to consider in determination of whether causal chain between illegal arrest and custodial statement has been broken). In this case, Investigator Moffet executed the affidavit and obtained the search warrant three days before he viewed the contents of the videotape. Furthermore, the affidavit only refers to “setfting] up the video camera” as the reason for returning to the site of the suspected laboratory; it does not allege any information that was gathered from the contents of the videotape. Therefore, even assuming, arguendo, that the use of the “groundhog” video camera was an illegal search, it has no causal connection to the evidence seized pursuant to the search warrant.

Furthermore, use of the “groundhog” camera in no way violated the Fourth Amendment. The Supreme Court has held that the use of photographic equipment to gather evidence that could lawfully be observed by a law enforcement officer does not violate the Fourth Amendment. United States v. McIver, 186 F3d 1119, 1125 (9th Cir. 1999), cert. denied, 528 U.S. 1177 (2000) (holding that video surveillance of marijuana garden in National Forest did not violate the Fourth Amendment); see also State v. Holden, 964 P.2d 318, 321-22 (Utah Ct. App. 1998), cert. denied, 982 P.1d 88 (1998)(refusing to adopt a per se rule requiring the state to obtain a search warrant any time it wishes to use video surveillance of residential property). In other words, a warrant is not required when video surveillance is used to record activity in an area where the suspect has no reasonable expectation of privacy. See Holden, 964 P2d at 321-22; cf. Dow Chemical Company v. United States, 476 U.S. 227, 236-40 (1986) (because Dow had no reasonable expectation of privacy in the outdoor areas of its manufacturing plant, aerial photography with a mapping camera did not violate the Fourth Amendment). In this case, the appellant does not question the trial court’s finding that the “groundhog” camera was placed on a neighbor’s property and recorded activity that took place in an open field. As such, bécause appellant had no reasonable expectation of privacy in the open field, see Oliver v. United States, 466 U.S. 170, 179-80 (1984), the warrantless video recording did not violate the Fourth Amendment.

Moreover, inasmuch as the appellant contends that the affidavit failed to establish probable cause to search the A-frame house, this Court rejects his argument. Arkansas Rule of Criminal Procedure 13.1(b) (2001) provides, in pertinent part, that an application for a search warrant is sufficient if “it describes circumstances establishing reasonable cause to believe that things subject to seizure would be found in a particular place.” In other words, probable cause requires a nexus between criminal activity and the item to be seized and also a nexus between the item to be seized and the place to be searched. See Yancey v. State, 345 Ark. 103, 115, 44 S.W.3d 315, 322 (2001).

In this case, as set forth above, the affidavit to obtain the search warrant alleged facts that connected the A-frame house to the makeshift hut and open field in which the police discovered the components of a methamphetamine laboratory. Thus, even without the videotape depicting the appellant’s involvement in a “cook,” the magistrate did not err by concluding that there was probable cause to issue a search warrant for his house; and, as such, the trial court did not err in denying appellant’s motion to suppress. For these reasons, we affirm the trial court’s decision.

Affirmed.

       The amended information alleges that the police checked the contents of the film on July 27, 2000, three days after Investigator Moffet executed the affidavit and obtained the search warrant.


author: Tom Glaze, Justice.

text:
    Christy HONEYCUTT v. Donald Wilbur FANNING
    01-975
    78 S.W.3d 96
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002

      Blair & Stroud, by: Michelle C. Huff, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Jim Tilley, for appellee.
   Tom Glaze, Justice.

The court of appeals certified this case to us because it involves the interpretation of Rules 4(i) and 6(a) of the Arkansas Rules of Civil Procedure. The sole issue involves the timeliness of the filing of a motion to extend time for obtaining service on a defendant.

On November 7, 1996, appellant Christy Honeycutt and appellee Donald Fanning were involved in a motor vehicle accident. Honeycutt filed suit against Fanning on November 5, 1999, and because she was unable to obtain service on Fanning within the 120-day period after filing her complaint as provided under Rule 4(i), on March 2, 2000, Honeycutt duly filed a motion for enlargement of time for service, which was granted on April 26, 2000.

Because Honeycutt still was unable to locate Fanning for service, she filed a second motion to extend time for service. She was required to file her second motion no later than Monday, July 3, 2000, but when she appeared at the court clerk’s office on that day to do so, the courthouse, including the clerk’s office, was closed by direction of the county judge. Because all county offices were closed on July 3 and 4, 2000, Honeycutt was delayed in filing her motion until Wednesday, July 5, 2000, which was after the 120-day period had passed. Her motion was initially granted by the trial court on July 6, 2000.

Fanning was served on November 2, 2000, and he subsequendy moved to dismiss Honeycutt’s complaint with prejudice, arguing that Honeycutt’s second motion to enlarge time for service was untimely filed and the statute of limitations had expired. Honeycutt responded by fifing an affidavit from the county judge, who averred he had closed all county offices on July 3 and 4, 2000, in observance of Independence Day. Honeycutt submitted that her motion was timely since the clerk’s office was not accessible for filing motions until July 5. The circuit court granted Fanning’s motion to dismiss with prejudice, explaining that July 3 was not a legal holiday as defined by Rule 6(a), which provides:

In computing any period of time prescribed or allowed by these rules, by order of the Court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than fourteen (14) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation. As used in this rule and Rule 77(c), "legal holiday” means those days designated as a holiday by the President or Congress of the United States or designated by the laws of this State.

(Emphasis added.)

The issue presented in this case — whether a motion is timely filed when the courthouse is inaccessible on the last day of the time in which filing is permitted — has never been squarely addressed by this court. Our rules and cases provide that if a plaintiff fails to complete service within the 120 days provided by the rules of civil procedure from filing the complaint, he or she may still request that the time be extended to complete service in order to protect the plaintiff against the running of a statute of limitations if that extension is requested within the 120-day period. Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994). The court order granting the extension need not be filed within the. 120 days, so long as the motion is filed within that time. Edwards v. Szabo Food Serv., Inc., 317 Ark. 369, 877 S.W.2d 932 (1994). Under Rule 4(i), the trial court does not lose jurisdiction if the order granting a motion to extend the time to obtain service of process is not signed and filed prior to the expiration of 120 days from the filing of the complaint, so long as the motion to extend time is filed prior to the end of the 120-day period. Edwards, 317 Ark. at 370; see also Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). The Edwards court also noted that a trial court can extend a period which has previously been extended beyond the period originally prescribed. Edwards, 317 Ark. at 373. However, subsequent motions for enlargement of time must be filed before the time allotted for prior extensions has expired. See Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994).

This brings us to the question now before us: Was Honeycutt’s second motion for enlargement of time filed before her first 120-day period expired? While technically her motion was filed on July 5 — two days outside the 120 days — Honeycutt was physically prevented from filing her motion on the 120th day because the courthouse was closed and locked. Although we have no cases that are direcdy on point, there are a number of federal cases decided under the federal rules of procedure that offer guidelines. The federal counterpart to our rule, Fed. R. Civ. P. 6(a), provides as follows:

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days.

(Emphasis added.)

The federal language concerning “weather or other conditions” is not present in the Arkansas rule, but this phrase was not added and made a part of Federal Rule 6(a) until 1985. Prior to that amendment, when the federal rule read substantially the same as ours, there were cases involving courthouse closings that prevented litigants from meeting filing deadlines. For example, in Wagner v. New York, Ontario & Western Railway, 146 F. Supp. 926 (1956), the United States District Court held that a complaint, although filed one day past the two-year statute of limitations expired, was timely, because the courthouse had been closed due to an “extraordinary flood [that] crippled public utility and other essential facilities.” Id. at 928. Although the court noted that the statute of limitations was a “meritorious defense,” nevertheless, it wrote that “most courts recognize a limited class of exceptions arising from necessity.” Id. at 929. Further, that court stated the following:

The broad rule is laid down that whenever some paramount authority prevents a person from exercising his legal remedy, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitations has barred his right, even though the statute makes no specific exception in his favor in such cases. ... [A] court . . . cannot by rules or conduct limit the time or opportunity for filing given by statute.

Id.

Likewise, in Prudential Oil & Minerals Co. v. Hamlin, 261 F.2d 626 (10th Cir. 1958), the Tenth Circuit excluded from the filing deadline — years before the “weather or other conditions” amendment — a day on which the clerk’s office, though technically open, was in fact locked and unattended because of a state holiday. The Hamlin court also pointed out that, while Congress has expressly “designated certain days to be legal public holidays and recognized others as existent [citation omitted], there is nothing in such enactment to indicate an intent to create a statutory limitation upon the term.” Hamlin, 261 F.2d at 627.

Since these cases were decided, the federal rule has been amended to include the “weather or other conditions” clause. In a case that is factually very similar to the instant matter, the Seventh Circuit held that a motion under Fed. R. Civ. P. 59 was timely, even though the rule only allowed for ten days to file such a motion, and it was not filed until the thirteenth day. Latham v. Dominck’s Finer Foods, 149 F.3d 673 (7th Cir. 1998). The tenth day — the deadline for filing the motion • — ■ fell on Friday, December 26, the day after Christmas. While December 26 had not been declared a federal or state holiday, the Chief Judge of the United States District Court for the Northern District of Illinois ordered the court, including the clerk’s office, to be closed on December 26; the judge’s order added that “motions or process due, returnable, or expiring on that day need not be filed until the following Monday.” The Seventh Circuit inferred from that order that no arrangements were made to permit filings on December 26. In concluding that the motion was timely, the court looked to the “weather and other conditions” language and determined that the rule should be read to exclude any day on which the district court is either officially closed, or inaccessible as a practical matter without heroic measures. Latham, 149 F.3d at 674.

We agree that such an approach should be taken here. Simply put, the Sharp County courthouse was inaccessible on July 3, 2000. Honeycutt could not have filed her motion on July 3, no matter what she did. It is a “fair and fundamental rule that no one should be prejudiced by the action of the court.” Wallis v. State and Bridge v. United Savings Ass’n, 245 Ark. 29, 430 S.W.2d 860 (1968). If we were to agree with the trial court, Honeycutt would have had only 117 days in which to file her motion for enlargement of time, even though the rule gives a party 120 days. Stated another way, to hold that Honeycutt’s attempt at filing her motion was untimely would amount to depriving her of the full time allowed by the rule, which the Wallis court held it would not do.

This liberal interpretation of our rule is consistent with the approach taken in the federal courts, and it is also consistent with another rule, including Ark. R. App. P. — Civ. 9, which provides that when the last day for taking action under the appellate rules falls on a Saturday, Sunday, or legal holiday, “the time for such action shall be extended to the next business day.” In the present case, Wednesday, July 5, 2000, was “the next business day,” and we hold that Honeycutt’s motion for enlargement of time to obtain service was timely. The trial court’s order dismissing Honeycutt’s complaint with prejudice is reversed and the matter remanded.


text:
    Ahbrae JONES v. STATE of Arkansas
    CR 01-1312
    78 S.W.3d 104
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002
    [Petition for rehearing denied July 11, 2002.]

      Leverett & Watts, PLLC, by: Rosalyn A. Watts, for appellant.

      Mark Pryor, Att’y Gen., by: Misty Wilson Borkowski, Ass’t Att’y Gen., for appellee.

       Imber, J., not participating.

   Tom Glaze, Justice.

Ahbrae Jones appeals his conviction and life sentence arising out of the aggravated robbery of the Rock Creek Blockbuster video rental store in Little Rock, which was robbed on March 2, 1998. About two weeks later, on March 17, 1998, Jones and another man, Allan Smith, were arrested by Little Rock police officers at the Ashley Square shopping center at Rodney Parham and Reservoir for public intoxication. Smith later implicated Jones in the Blockbuster robbery, and Jones was charged with the robbery; following a trial, he was found guilty of aggravated robbery and theft of property. The jury sentenced him to life in prison.

Although Jones’s challenge to the sufficiency of the evidence is actually his third point on appeal, double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to the other issues on appeal. See Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). This court will affirm a conviction if there is substantial evidence to support the verdict when viewed in the light most favorable to the State. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000), cert. denied, 531 U.S. 1081 (2001). Substantial evidence is evidence of sufficient force and character as to compel, with reasonable certainty, a conclusion beyond mere speculation or conjecture. Id.

On appeal, Jones contends that there was insufficient evidence to corroborate the testimony of an accomplice, Allan Smith. Smith testified that on March 2, 1998, he drove Jones to the Blockbuster at Rock Creek and dropped him off. Smith stated that Jones was wearing a black sweatshirt with a hood, some jeans and tennis shoes. Smith let Jones out at the front door of the store; when Smith looked inside, he did not see anyone, so he drove through the parking lot and turned his car around so that it was facing the store. Smith stated that he saw Jones go to the back of the store, and then saw him raise his hand, holding a pistol. At that point, Smith said, he knew Jones was robbing the store, but he did not stop Jones because there was a gun involved and he was not the police. Smith averred that he made up his mind to leave at that point, but as he pulled out onto Bowman Road, Jones came running up to the car, so Smith slowed down to let him in. Smith also identified the gun used in the robbery as belonging to his sister.

Jones contends that Smith’s testimony was uncorroborated, and that his conviction cannot stand on the basis of Smith’s testimony alone. In cases involving the testimony of an accomplice, Ark. Code Ann. § 16-89-111 (e)(1) (1987) provides the following:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated'by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

When offered to support the testimony of any accomplice, corroboration must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice’s testimony. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001); Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994). The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Martin, supra; McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999).

Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999); Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). Where circumstantial evidence is used to support accomplice testimony, all facts of evidence can be considered to constitute a chain sufficient to present a question for resolution by the jury as to the adequacy of the corroboration, and the court will not look to see whether every other reasonable hypothesis but that of guilt has been excluded. Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990).

In addition to Smith’s testimony, the State introduced the testimony of three Blockbuster employees, Andrew Kronberg, Shawn Travis, and Anthony McFarland, who were working in the store the night of the robbery. A stocky black man, approximately 5’8” in height and around 180 pounds, and wearing a black hooded sweatshirt, tennis shoes, sunglasses, and a bandana over his face, entered the store approximately ten or fifteen minutes before closing. The man brandished a gold-plated .25 caliber handgun and ordered the three of them to the office in the back of the store, where Kronberg pulled money out of the safe and put it in a cardboard box, which he handed to the robber. Each of the three witnesses identified State’s Exhibit 1 as being the gold handgun used during the robbery. Further, Travis and McFarland chose Jones’s photograph out of a photo lineup as looking like the robber, and all three identified Jones as looking like the robber in the courtroom. The State also introduced seven still photographs taken by the Blockbuster store’s security cameras that aided the witnesses in identifying Jones as the robber.

Additionally, the State offered the testimony of Little Rock Police Officer Ralph Breshears, who arrested Jones and Smith on March 17, 1998. After the arrest, Breshears searched the area where the two men had been sitting, and found, among other items, the gold-plated handgun. At trial, the gun was introduced as State’s Exhibit 1, which the three Blockbuster employees identified as looking like the gun used in the robbery, and which, as discussed above, Smith identified as belonging to his sister.

This evidence independently establishes the crime and tends to connect Jones with its commission. See Martin, supra; Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996); Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). Clearly, the evidence introduced at trial was substantial to support the accomplice testimony of Allan Smith, and the trial court did not err in denying Jones’s motion for directed verdict.

For his second point on appeal, Jones contends that the trial court erred in denying his mistrial motion after the following exchange occurred between the prosecutor, David Sachar, and testifying witness Officer Ralph Breshears:

Sachar: And you saw that car drive in and back into a spot, is that correct?
Breshears: Yes, sir, that’s correct.
Sachar: Okay. Okay. After you have contact with them and you’re talking to them, then what happened? Well, it’s already been introduced.
Breshears: I discovered that they were both on parole and . . .

Defense counsel immediately objected, stating that Jones was not testifying and the jury “has no right to know that he has a prior record and I am moving for a mistrial. The prosecutor knows that; he knows he’s not going to testify.” The court denied the motion for mistrial, stating that it would “advise the jury to disregard those remarks.” Defense counsel said, “Judge, please do that over my objection. We cannot un-ring a bell. They know he’s on parole.” The judge replied, “Okay. I won’t advise them of that then. Your motion is denied.”

Among the factors to be considered in determining whether or not a trial court abused its discretion in denying a mistrial motion are whether the prosecutor deliberately induced a prejudicial response, see Brown v. State, 320 Ark. 201, 895 S.W.2d 909 (1995), and whether an admonition to the jury could have cured any resulting prejudice. Id.; see also Blagg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). While there is “always some prejudice that results from the inadvertent mention of a prior conviction,” see Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991), this court has upheld denials of mistrials where, by chance remarks, it was brought out that the defendant had prior arrests, and even prior convictions, where the comment was inadvertent. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987); see also Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985) (where juror commented during voir dire that he knew the defendant because he had arrested him, the trial court’s denial of a mistrial did not require reversal because the evidence of guilt was overwhelming).

Here, it is plain that Breshears’s comment about Jones’s being on parole was inadvertent, and was not the answer that the prosecutor’s question was intended to elicit. The prosecutor had only asked what happened after Breshears contacted Smith and Jones; nothing in the question indicated that the State was asking Breshears to divulge Jones’s criminal history. In addition, the court offered to admonish the jury to disregard this statement, but Jones was adamant that doing so would only draw attention to the comment. Where an admonition to the jury could have cured the situation, but no such admonition is requested (and indeed was explicitly rejected), this court will not say that the trial court’s decision to deny the mistrial motion was an abuse of discretion. See, e.g., Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993).

In addition, Jones argues that the trial court’s denial of his motion for mistrial was not harmless error, citing Chapman v. California, 386 U.S. 18 (1967), and contending that the introduction of the allegedly improper testimony amounted to an unconstitutional comment on his right not to testify. However, for the reasons discussed above, the prosecutor’s question and the witness’s inadvertent comment do not rise to the level of constitutional error. In any event, even if any error occurred, it was harmless in light of the overwhelming evidence of guilt, as set forth above. See Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001) (to conclude that a constitutional error is harmless and does not mandate reversal, this court must conclude beyond a reasonable doubt that the error did not contribute to the verdict).

Jones’s next point on appeal involves his defense witness, Tommy McIntosh, and his motion to limit the State’s cross-examination of McIntosh and to preclude the introduction of evidence that McIntosh met Jones in prison. Just before Jones began to present his case-in-chief, the State objected to the testimony of Tommy McIntosh; the prosecutor said she anticipated that McIntosh would state that Allan Smith told him some guy named “Dray Dog” committed the robbery. The court ruled that McIntosh could testify, but the prosecutor interjected that if McIntosh were allowed to testify, “then the State is going to have to inquire about how his relationship with Ahbrae Jones was formed because we believe that goes to bias.” The court agreed, noting that any witness was subject to wide cross-examination, and concurring with the State that bias was always relevant.

The trial court was correct. Under Ark. R. Evid. 404(b), evidence of other crimes will be admitted if it has independent relevance, and its relevance is not substantially outweighed by the danger of unfair prejudice. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). As to whether the evidence is independently relevant, it must be relevant in the sense of tending to prove some material point rather than merely trying to prove the defendant is a criminal. Id. On appeal, we will not reverse a trial court’s decision regarding admission of evidence absent a manifest abuse of discretion. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Further, the scope of cross-examination extends to matters of credibility. Ark. R. Evid. 611; Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999). A matter is not collateral if the evidence is relevant to show bias, knowledge, intent, or interest. Pyle v. State, 314 Ark. 165, 862 S.W.2d 833 (1993); Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). Proof of bias is “almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’s testimony.” Fowler, supra (citing United States v. Abel, 469 U.S. 45 (1984)). In other words, matters affecting the credibility of a witness are always relevant. Id.

Here, when Jones called McIntosh to the stand, McIntosh testified that he had a conversation with Allan Smith about the Blockbuster robbery, and Smith told him that the police were “trying to get some guy named A.J.” and that “some crip named ‘Tray Dog’ ” from California had committed the robbery. McIntosh asked Smith why he was “telling on this guy named A.J.,” and Smith replied that the police believed “he did some bank robberies and they really want him bad.” Smith also told McIntosh that he was “going to save myself, they ain’t going to charge me.”

On cross-examination, the State questioned McIntosh about his relationship with Jones, and McIntosh informed the jury that he had met Jones in prison, where Jones was his supervisor training him for a clerk job. The purpose of the State’s cross-examination of McIntosh was to show that the witness was a friend of Jones and would testify favorably for that reason. In order to establish the friendship between Jones and McIntosh, the State inquired into how the two had met. Because the State is entitled to prove its case as conclusively as it can, see Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998), and because the evidence of where McIntosh and Jones met was relevant to proving McIntosh’s bias, the trial court did not abuse its discretion in allowing the State to delve into this area of cross-examination.

Finally, Jones argues that the trial court erred in denying his motion for new trial, wherein he raised the same three arguments he now poses to this court. He also contends that the trial judge acknowledged that there was error in the trial when he ruled that the State was entitled to cross-examine McIntosh, stating, “I think you’ve already got a mistrial for reversible error anyway.” However, we conclude that the trial judge’s comment was merely an inadvertent expression of opinion that does not require this court to agree that reversible error had been committed, especially since the trial court previously ruled against Jones regarding any mistrial issue. It is for this court to decide when such an error has occurred, not the trial court. In any event, Jones’s motion for new trial presented grounds that mirror his arguments on appeal. Because we find no error with respect to these three points, we hold that Jones’s argument regarding the denial of his motion for new trial is moot and need not be addressed. See Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000).

Jones was sentenced to life in prison. The record has been examined for adverse rulings objected to by the appellant but not argued on appeal, and no reversible error was discovered. Thus, we affirm.

Imber, J., not participating.


author: Donald L. Corbin, Justice.

text:
    Rose TURNBOUGH v. MAMMOTH SPRING SCHOOL DISTRICT No. 2
    01-696
    78 S.W.3d 89
    Supreme Court of Arkansas
    Opinion delivered June 20, 2002

      Larry Dean Kissee, for appellant.

      Laser Law Firm, P.A., by: Dan F. Bufford and Brian A. Brown, for appellee.

      Kristen Craig Gould and W. Paul Blume, for amicus curiae Arkansas School Boards Association.
   Donald L. Corbin, Justice.

This case is before us on a petition for review from a decision by the Arkansas Court of Appeals in Turnbough v. Mammoth Spring Sch., 74 Ark. App. 107, 45 S.W.3d 430 (2001). For reversal, Appellant Rose Turnbough argues that the trial court erred in determining that Appellee Mammoth Spring School District No. 2 was not required to pay her for accumulated sick leave when she resigned her teaching position. This issue is one of first impression, properly decided by this court; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and 2-4(c)(iii). We find no error and affirm.

Turnbough was employed as a school teacher with the school district from August 1, 1979, until the end of the school year in 1999. At that time, Turnbough notified the school district that she would not be renewing her contract. She also requested that the school district pay her for ninety days of sick leave that she had accumulated. The school district refused on the basis that Turn-bough did not meet either of the two criteria for such payment as established in the district’s policies, which were subsequently incorporated into Turnbough’s teaching contract.

Thereafter, Turnbough filed a declaratory-judgment action in the Fulton County Circuit Court, seeking a declaration that she was entitled to payment for the sick leave under the Arkansas Teachers’ Minimum Sick Leave Law, codified at Ark. Code Ann. §§ 6-17-1201-1209 (Repl. 1999). A hearing was held on this matter on June 20, 2000. At that time, Turnbough testified that after leaving her job with the school district, she took a counselor’s position with the West Plains High School in West Plains, Missouri. Turnbough also stated that she filed for teacher retirement before taking the counselor position in Missouri, but was told that she was not eligible for retirement benefits at that time. On cross-examination, Turnbough also admitted that she read the school district’s sick-leave policy as set forth in her teaching contract.

Also testifying at this hearing was Houston Case, the school district’s superintendent. He testified that under the employment contract signed by Turnbough, payment for unused sick leave only occurred where an employee accumulates more than ninety days of sick leave or where an employee is eligible and files for retirement benefits. Case stated that because neither of these situations applied to Turnbough, there was no provision to pay her for her unused sick leave.

Finally, Wilma Rogers testified that she was an administrative bookkeeper with the school district. According to Rogers, she was unaware of any teacher ever being paid for unused sick leave that did not fall within one of the two provisions set forth in the school district’s sick-leave policy. After considering this testimony, the circuit court determined that Turnbough was not entitled to payment for the unused sick leave under the terms of the Sick Leave Law or her teaching contract. The trial court then entered an order dismissing Turnbough’s complaint with prejudice.

On appeal, the court of appeals affirmed the trial court’s order dismissing Turnbough’s complaint. In so ruling, the court of appeals agreed that a plain reading of the statute revealed that while school districts are free to decide whether to compensate teachers for unused sick leave, they are not required to do so. The only requirement set forth in the Sick Leave Law regarding payment for unused sick leave is that any such payments must come from the school district’s salary funds. In the same vein, the court of appeals determined that Turnbough was not entitled to payment for the unused sick leave under the terms of her contract with the school district. Turnbough then petitioned this court for review of the court of appeals’ decision.

After granting Turnbough’s petition for review, this court also granted a motion allowing the Arkansas School Boards Association to file an amicus curiae brief in this matter. Therein, the Association argues that the General Assembly has been aware of this school district’s, as well as numerous other school districts’, policies regarding payment of unused sick leave and has not stepped in to require a modification of those policies. The Association also argues that under Turnbough’s interpretation of the Sick Leave Law, school districts could be left financially devastated by a sudden onslaught of requests for cash payments by teachers who have accumulated sick leave. Finally, the Association argues that Turnbough’s interpretation of the Sick Leave Law is contrary to public policy. Specifically, the Association avers that the purpose of the law is to create a buffer against economic hardship for teachers who fall ill or have family that become ill. Allowing teachers to request payment for that sick leave would then defeat the intent of the General Assembly when they passed the Sick Leave Law.

On appeal, Turnbough argues that the trial court erred in ruling that she was not entitled to payment for the unused sick leave under the terms of the Sick Leave Law. She also argues that the school district’s sick-leave policy is more restrictive than allowed by the statute and that the policy also violates the Privileges and Immunities Clause of the United States Constitution. The school district counters that the intent of the Sick Leave Law is not to provide cash payments for unused sick leave, but rather to provide teachers with a mechanism for accumulating sick leave as a buffer against financial hardship in the event of future illness or. injury. Thus, the school district argues that the trial court’s declaration that Turnbough was not entitled to a cash payment was correct. As to Turnbough’s remaining two arguments, the school district contends that these arguments were not raised below, and thus, are not preserved for appellate review. We agree that the latter two arguments were not raised below, and thus, will not now be reviewed by this court. It is well settled that with the notable exception of matters involving subject-matter jurisdiction, we will not consider issues raised for the first time on appeal, even where the issue is a matter of constitutional magnitude. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001); Burke v. Strange, 335 Ark. 328, 983 S.W.2d 389 (1998); Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993).

Turning now to the issue of the applicability of the statutes, we begin by reiterating our well-established principles regarding statutory construction. We review issues of statutory construction de novo, as it is for this court to decide what a statute means; thus, we are hot bound by the trial court’s determination. Bourne v. Board of Trustees of the Policeman’s Relief Pension Fund, 347 Ark. 19, 59 S.W.3d 432 (2001); Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Bond v. Lavaca Sch. Dist., 347 Ark. 300, 64 S.W.3d 249 (2001); Ozark Gas Pipeline v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Stephens, 341 Ark. 939, 20 S.W.3d 397. This court construes the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Id. However, this court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Buford Distrib., Inc. v. Starr, 341 Ark. 914, 20 S.W.3d 363 (2000).

We now apply these principles to the provisions at hand. Section 6-17-1204 provides:

(a) Each school district in the state shall provide sick leave for each of its teachers at a minimum rate of one (1) day per month or major portion thereof that the teacher is contracted, at full pay.
(b) Such leave shall be in force beginning with the first day of the first school term for which each teacher is employed.
(c) If a teacher resigns or leaves his teaching position for any reason before the end of the school term, the employing district may deduct from his last paycheck full compensation for any days of sick leave used in excess of the number of days earned.
(d) A teacher shall be entitled to sick leave only for reasons of personal illness or illness in his immediate family.

Under the terms of section 6-17-1208, school districts are free to provide more liberal sick-leave benefits to their employees:

The number of days of sick leave provided by this subchapter are mínimums only, and nothing in this subchapter shall prohibit any school district from providing more days of sick leave or from having a more liberal policy for the administration of sick leave, including, but not limited to, the establishment of sick leave pools or banks and allowing district employees who are husband and wife to each utilize the other’s accumulated sick leave.

Critical to the present issue is the language found in section 6-17-1207. That section states that “[p]ayment for unused sick leave shall be made from the salary fund of the district, and these moneys shall be included in meeting the annual requirements for payment of teachers’ salaries.”

Turnbough had been employed with the school district for nearly twenty years. She admitted that she signed an employment contract with the school district and was aware of the district’s sick-leave policy that was incorporated into the terms of her contract. That policy provided as follows:

Poliq Name: ILLNESS OR SICK LEAVE Poliq Code: GBR1B
Date Adopted: MAY 18, 1994
All full time personnel of the Mammoth Spring School District will be provided with one (1) day of sick leave for each month they are under contract. The sick leave that is not used by an employee may be accumulated up to a total of ninety (90) days. If an employee is absent only in the morning or afternoon, he will have used only one-half day sick leave. Sick leave days may be used only for the reasons of personal illness of the immediate family. Sick leave may also be used in case of a death in the immediate family. In case of doubt, the administration may require a doctor’s statement to verify illness. Immediate family is defined as spouse, child, parent, grandparent, brother, sister, uncle or aunt, either by blood or marriage.
An employee who is absent from school except for these reasons outlined in Act 818 of 1989 will have deducted from his salary one day’s salary for each day absent.
When a certified person employed by another School District in this state shall accept employment in this School District, he/she shall be granted credit for any unused sick leave accumulated in the former School District, not to exceed a maximum of 90 days. Said accumulated and unused sick leave credit shall be granted to teacher upon furnishing proof in writing thereof from the School District of former employment of the teacher.
PAY FOR UNUSED SICK LEAVE
Certified personnel will be paid for unused sick leave in excess of ninety (90) days at the rate of a substitute teacher pay.
Any certified employee who is eligible and files for Arkansas Teacher Retirement will be paid at the current rate paid for substitute teachers, for any unused sick leave, not to exceed 90 days.
Legal References:
Act 818 of 1989

Thus, under the terms of Turnbough’s contract with the school district, an employee is paid for unused sick leave only in two circumstances. First, if a teacher accrues more than ninety days of sick leave, then the school district is required to pay for those excess days at the rate of a substitute teacher pay. Second, any teacher who retires and is eligible for Arkansas Teacher Retirement will be paid for unused sick leave, not to exceed ninety days, at the current rate paid for substitute teachers. Turnbough concedes that she falls into neither of these categories.

Turnbough argues that in 1979 the General Assembly through passage of Act 1016 of 1979 repealed the prohibition against payments for unused sick leave, previously codified at Ark. Stat. Ann. § 80-1253 (Supp. 1979). It is correct that school districts are no longer prohibited from paying teachers for unused sick leave, but we disagree with Turnbough’s assertion that such payment is now mandatory. The new provision, codified at sec-don 6-17-207, simply requires that when a school district does pay a teacher for unused sick leave that it does so from the district’s salary fund. Mandating the source of such payment is not the equivalent of mandating those payments. We will not interpret the statute in a meaning that is contrary to the clear language of the statute; nor will we read into the statute language that is not there. See, e.g., State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001); Conagra Frozen Foods, Inc. v. Director of Labor, 34 Ark. App. 108, 806 S.W.2d 27 (1991).

Moreover, it was uncontroverted that Turnbough had accumulated exacdy ninety days of unused sick leave, thus not entitling her to payment for excess hours. Turnbough admitted that she had filed for Arkansas Teacher Retirement but had been denied benefits because she was ineligible for retirement at that time. In sum, nothing in Turnbough’s teaching contract would lead her to believe that she was owed payment for the ninety days of sick leave that she had accumulated. Neither the Sick Leave Law, nor Turnbough’s contract entitled her to such payment.

We are likewise unpersuaded by Turnbough’s attempt to argue that she has a vested contractual right to the accumulated sick leave that somehow translates into a requirement that the school district pay her for those days. In advancing this argument, Turnbough relies on this court’s decision in City of North Little Rock v. Vogelgesang, 273 Ark. 390, 619 S.W.2d 652 (1981). Turn-bough, however, ignores the following language in Vogelgesang, where we rejected a similar argument:

The appellees argue that they had a vested contractual right to their accumulated sick leave because they “contributed” to the plan, not in money but by coming to work when they might have stayed away and charged their absence to sick leave. We do not find this argument persuasive. The ordinary meaning of the words “sick leave” contemplates an illness rather than an optional holiday with full pay.

Id. at 392, 619 S.W.2d at 653.

. Here, it is evident that the General Assembly wanted to provide economic protection for teachers facing time off work due to illness. There is no indication that the legislature intended to provide teachers with a secondary source of income. We are further persuaded that our interpretation of the Sick Leave Law is correct by a review of the Emergency Clause that precedes the provisions of this law. It provides in relevant part:

It is hereby found and determined by the General Assembly that a number of schoolteachers who move from the district where they were formerly employed and accept employment in another school district often lose credit for accumulated sick leave in the school district of former employment, which imposes undue hardship upon the teacher in the new school district, and that it is essential to the efficient operation of the public schools in this State that public schoolteachers employed in this State shall not lose credit for accumulated sick leave when said teachers move or transfer to another school district, and that the immediate passage of this Act is necessary to correct this situation.

Thus, the legislature has not hesitated to intervene and correct a situation where school districts’ policies conflicted with the purpose of the Sick Leave Law. No similar emergency has been declared due to school districts’ failure to pay teachers for unused sick leave. In the absence of any such legislative intent, we cannot say the trial court’s decision to dismiss Turnbough’s complaint was erroneous.

Affirmed.

Glaze, J., not participating.