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    William F. BOWEN v. STATE of Arkansas
    CR 93-1003
    911 S.W.2d 555
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995
    [Petition for rehearing denied appellant January 8, 1996.]
    [Petition for rehearing denied appellee January 8, 1996.]

      Simes & Simes, by: L.T. Simes II and Charlotta Norby, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.

      Glaze, J., would grant.

   David Newbern, Justice.

Teller Connie Fay Vondran was stabbed and killed in the course of a robbery of Delta State Bank in Elaine. Shortly after the Bank’s alarm alerted the police, William F. Bowen was arrested in a nearby bean field. Mr. Bowen was convicted of capital felony murder and aggravated robbery and sentenced to death.

The State has raised an issue concerning the timeliness of the appeal. We consider the appeal to be timely. The judgment was entered January 15, 1993. Mr. Bowen filed a motion for a new trial on February 15, 1993. Pursuant to Ark. R. Crim. P. 36.22, a criminal defendant has the same time to file a new trial motion as for filing a notice of appeal, i.e., 30 days. Ark. R. App. P. 4(a). The 30th day from the judgment fell on February 14, 1993, which was a Sunday, thus extending the date until Monday, February 15, 1993. The Trial Court did not rule on the motion, so it was deemed denied March 17, 1993. Ark. R. App. P. 4(c). Mr. Bowen’s notice of appeal was filed March 29, 1993, and thus it was within the 30-day period prescribed in Ark. R. App. P. 4(c).

Mr. Bowen has raised 19 points of appeal. As the State has pointed out, we must reverse and dismiss the aggravated robbery conviction because it is a lesser felony included in capital felony murder. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982).

We affirm the capital murder conviction, but we must reverse the death sentence and remand the case for resentencing. The reversal of the sentence is caused by error in instructing the jury with respect to a statutory aggravating circumstance, which was applied by the jury, although the statute was not in effect at the time the crime was committed.

The sufficiency of the evidence against Mr. Bowen is not an issue. We will recite some of the facts proven and add others as we address Mr. Bowen’s points of appeal in the order he has presented them in his brief.

Mr. Bowen’s arrest occurred because a citizen had seen someone running toward the bean field and so informed Chief Lawman. Chief Lawman read the Miranda rights to Mr. Bowen upon arresting him. Mr. Bowen made no response to indicate that he understood or waived his rights. Chief Lawman asked Mr. Bowen where the money and knife were. Mr. Bowen responded that he had dropped the money while crossing a ditch and he did not have the knife.

From the bean field, Mr. Bowen was transported to the Elaine City Hall to await the arrival of deputies from the Phillips County Sheriff’s Department. Shortly thereafter, Mr. Bowen made inculpatory statements to Phillips County Sheriff Kenneth Winfrey and later to FBI agents.

The Trial Court ordered a mental evaluation of Mr. Bowen, which was performed in December 1990 by Dr. Heisler at the Phillips County Jail. Dr. Heisler determined that Mr. Bowen had dissociative disorder, significant depression, and a history of psychiatric treatment. He recommended further evaluation at the State Hospital. Just prior to his transfer to the State Hospital, Mr. Bowen attempted suicide by hanging himself with a bed sheet at the Phillips County Jail.

The State Hospital evaluation occurred during January and February 1991. The doctors concluded Mr. Bowen suffered from Multiple Personality Disorder (MPD) and recommended he be found not competent to stand trial. Mr. Bowen’s evaluation at the State Hospital also revealed that during the six years before his arrest, he was diagnosed as suffering from schizophrenia, adjustment disorder, depression, and borderline personality disorder. In addition, his doctors discovered that he had made several suicide attempts. After the State Hospital found him incompetent, Mr. Bowen was discharged and returned to jail in April 1991, whereupon he made another suicide attempt.

In June of 1991, the Trial Court adjudicated Mr. Bowen incompetent and sent him back to the State Hospital for treatment. During an eleven-month stay, Mr. Bowen’s doctors observed in Mr. Bowen a number of distinct personalities, but concluded in a report dated April 17, 1992, that his competency had been restored. In that same report, the doctors also rendered the opinion that Mr. Bowen was unable to appreciate the criminality of his act at the time the crime occurred. Mr. Bowen was adjudicated competent to stand trial on July 31, 1992.

In the period between July 31, 1992, and the date jury selection began, December 7, 1992, Mr. Bowen’s attorney made several motions requesting further psychiatric evaluation. He also moved for acquittal pursuant to Ark. Code Ann. § 5-2-305 (Repl. 1993). The motions were denied.

At his trial, Mr. Bowen presented an insanity defense through the testimony of experts who evaluated and treated him at the State Hospital, the primary witness being Dr. O. Wendell Hall, III. Dr. Hall discussed the MPD diagnosis and stated, in the State Hospital report, “We concluded ... that he was not able to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.” The prosecution answered with the testimony of Dr. Darryl Bruce Mathews. Dr. Mathews questioned the validity of MPD as a diagnosis in general and said he could not understand the statements and reasoning of the State Hospital doctors in reaching the conclusion that MPD caused Mr. Bowen to be unable to conform his behavior to the law. The jury found Mr. Bowen guilty of capital felony murder and sentenced him to death. In reaching their decision on the death sentence, the jury found two aggravating circumstances and two mitigating circumstances. Neither of the mitigating circumstances found by the jury involved Mr. Bowen’s mental health.

Mr. Bowen appeals various rulings made at both the guilt phase and the sentencing phase of his trial.

1. Failure to find or consider mitigation on the basis of mental illness

Arkansas Code Ann. § 5-4-603 (Repl. 1993) permits the imposition of a death sentence by a jury if it unanimously returns written findings of certain aggravating circumstances including the conclusion that they outweigh any mitigating circumstances it may find. Statutory aggravating circumstances are listed in Ark. Code Ann. § 5-4-604 (Repl. 1993), and mitigating circumstances are listed in Ark. Code Ann. § 5-4-605 (Repl. 1993).

Forms to be used in considering and returning its verdict were given to the jury. On Form 1, listing the statutory aggravating circumstances, the jury reported unanimously finding that:

The Capital Murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody.
The Capital Murder was committed in an especially cruel or depraved manner.

On Form 2-A, listing the statutory mitigating circumstances, the jury reported unanimously finding that:

The Capital Murder was committed while William Francis Bowen was acting under unusual pressures or influences or under the domination of another person.
William Francis Bowen has no significant history of prior criminal activity.

On Form 3, the jury concluded the aggravating circumstances justified beyond a reasonable doubt a sentence of death, and the verdict of the jury was that Mr. Bowen be sentenced to death by lethal injection. See Ark. Code Ann. § 5-4-603 (Repl. 1993).

The argument on this point has to do with the jury’s failure to find, or even to consider these statutory mitigating circumstances which appeared on Form 2-A, and which are prescribed in § 5-4-605, but which were not checked by the jury as ones which existed in this case:

The Capital Murder was committed while the defendant was under extreme mental or emotional disturbance.
The Capital Murder was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect, intoxication, or drug abuse.

a. Failure to find

Mr. Bowen argues the jury should have found those mitigating factors to exist because the evidence of them was overwhelming and uncontradicted. No doubt, there was a great deal of evidence that Mr. Bowen had mental problems in the past. On the other hand, there was Dr. Mathews’s testimony.

Dr. Mathews testified, in addition to his testimony related above, that the MPD diagnosis upon which the report founded its conclusion of lack of ability to appreciate the criminality of the act was “suggested” by the doctors to Mr. Bowen. He testified that the symptoms exhibited by Mr. Bowen fit into the “borderline personality disorder” diagnosis previously applied to Mr. Bowen. Dr. Mathews found some evidence of malingering. While he said he did not think the symptoms displayed by Mr. Bowen were totally artificial or the result of malingering, he concluded there was no evidence of mental impairment in the weeks before the crime.

A jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987); Hill v. State, 289 Ark. 387, 713 S.W.2d 223 (1986). Although medical evidence on the issue of insanity is highly persuasive, a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Even when several competent experts concur in their opinions, and no opposing expert evidence is offered, the jury is bound to decide the issue upon its own judgment. Id. Testimony by experts is to be considered by the jury in the same manner as other testimony and circumstances in the case. Id. The jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it they believe to be true. Id.; Robertson v. State, 304 Ark. 332, 802 S.W.2d 448 (1991).

b. Failure to consider

Mr. Bowen cites a number of cases from around the country in which death penalties have been rejected on appeal because of a jury’s failure to consider mental illness of the accused. E.g., Magwood v. Smith, 791 F.2d 1438 (11th Cir. 1986); Evans v. State, 598 N.E.2d 516 (Ind. 1992). His argument that the jury failed even to consider the evidence of his mental illness is based on the fact that the jury left Form 2-C blank.

Form 2-C lists the statutory mitigating factors having to do with mental illness, quoted above, and they are to be checked if the jury determines unanimously that they did not exist at the time of the murder. The problem with the argument based on Form 2-C is that, although Mr. Bowen’s abstract of the record indicates that the form was submitted to the jury, there is nothing in the abstract to show whether the jury executed it or not. Indeed, we have searched the record in vain for Form 2-C. It is the duty of the appellant to present a record from which we can determine the facts on which he relies for reversal. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 132 (1994).

We cannot say the jury failed to consider the record of Mr. Bowen’s mental illness. Even if the opinions of the doctors at the State Hospital had remained uncontradicted, which they did not, the jury would have been free to disbelieve them and find that punishment of Mr. Bowen should not be mitigated by his mental condition.

2. Application of a statutory aggravating circumstance ex post facto

One of the statutorily prescribed aggravating circumstances unanimously found by the jury was, “The capital murder was committed in an especially cruel or depraved manner.” Mr. Bowen contends it should not have been applied to his case because the law describing that aggravating circumstance had not been enacted at the time the crime was committed.

In Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), we held that a statutory aggravating circumstance using the terms “heinous, atrocious, or cruel” was unconstitutionally vague. In 1991, the General Assembly amended the law to state the current terminology. Ark. Code Ann. § 5-4-604(8) (Repl. 1993). Between 1988 and 1991, Arkansas law did not prescribe as an aggravating circumstance either “heinous, atrocious, or cruel,” or “cruel and depraved” murder. As the crime in this case occurred in 1990, Mr. Bowen argues that the application of the aggravating circumstance codified in 1991 violated the ex post facto clauses of the United States and Arkansas Constitutions. U.S. Const, art. I, § 9, cl. 3; art. I, § 10, cl. 1. Ark. Const, art. 2, § 17.

The State argues that Mr. Bowen is procedurally barred from raising this issue on appeal because there was no objection on that basis in the Trial Court. Although the State is correct in its assertion that no such objection was made, this assignment of error comes within a very narrow exception to the rule that this Court will not entertain claims of “plain error” not brought to the attention of the Trial Court.

As reported in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we recognized in Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943), and in Wells v. State, 193 Ark. 1092, 104 S.W.2d 451 (1937), that we have not required an objection to a trial court’s failure to bring to a jury’s attention a matter essential to its consideration of the death penalty. We apply that holding here and consider the issue on its merits.

Whether or not retroactive application of the statutory “cruel and depraved manner” aggravating circumstance violates the constitutional prohibition against ex post facto legislation depends upon the nature of the law. If the amendment creating the statutory aggravating circumstance after the commission of the crime is considered “substantive,” then application of it is a constitutional violation. If it is considered “procedural,” there was no error in applying it retroactively to Mr. Bowen’s case. That is the analysis used by the Supreme Court in Miller v. Florida, 482 U.S. 423 (1987), and in Dobbert v. Florida, 432 U.S. 282 (1977).

In Miller v. Florida, supra, the Florida legislature, through an amendment in a “points” system, effectively increased the number of years in the sentence range for certain offenses from a range of three-and-a-half years to four-and-a-half years to a range of five-and-a-half to seven years. The increase occurred after the offense in question was committed but before Miller was tried. In its opinion determining that the new law could not be applied, the Supreme Court said:

Article I of the United States Constitution provides that neither Congress nor any State shall pass any “ex post facto Law.” .. . Our understanding of what is meant by ex post facto largely derives from the case of Calder v. Bull, 3 Dall. 386 (1798), in which this Court first considered the scope of the ex post facto prohibition. In Calder, Justice Chase, noting that the expression “ex post facto” “had been in use long before the revolution,” . . . summarized his understanding of what fell “within the words and the intent of the prohibition”:
“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Id. at 390 (emphasis omitted).
4= * 4=
As was stated in Weaver [v. Graham, 450 U.S. 24 1981)], to fall within the ex post facto prohibition, two critical elements must be present: first, the law “must be retrospective, that is, it must apply to events occurring before its enactment”, and second, “it must disadvantage the offender affected by it.” .. . We have also held in Dobbert v. Florida, supra, that no ex post facto violation occurs if a change does not alter “substantial personal rights,” but merely changes “modes of procedure which do not affect matters of substance.”

By way of contrast to Miller v. Florida, supra, the Dobbert case had to do only with whether the judge or the jury made an ultimate decision about imposition of the death penalty. At the time the crime was committed, the Florida law permitted imposition of the death sentence unless a majority of the jurors recommended mercy. At the time of the trial, the law permitted the judge to impose the death penalty if he or she stated in writing reasons based on statutorily prescribed findings. That change was held to be “procedural” only, and thus it was not prohibited as an ex post facto law. The Supreme Court concluded the change in the law actually worked to the benefit of the accused. Previously, the death penalty was “presumed” unless the jury called for mercy, but under the new law the judge was to implement statutory safeguards enacted in the wake of Furman v. Georgia, 408 U.S. 238 (1972).

In Miller v. State, 269 Ark. 341, 603 S.W.2d 430 (1980), an issue was whether there was sufficient evidence in support of aggravating circumstances found by the jury. In upholding the jury’s findings, we said:

One of the reasons these statutes were enacted was to give this court an insight in the thought process of the jury so that we can compare the circumstances of cases involving the death sentence in our effort to avoid any arbitrary and unconstitutional application of the sentence. We do not consider the jury’s findings as separate little verdicts, and we do not require the same degree of proof to sustain a jury finding that an aggravating circumstance exists as we would require to sustain a conviction if that circumstance was a separate crime.

That expression about our statutory aggravating circumstances is similar to one made a few years later by the Supreme Court in Poland v. Arizona, 416 U.S. 147 (1986), in which it was said that the finding of an aggravating circumstance is not a separate verdict but is a “standard” to guide the jury in its selection of punishment.

In Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989), we explained the circumstances under which a sentencing law will be considered substantive:

Appellants have cited a number of our cases stating that sentencing provisions are substantive rather than procedural and that the sentencing provisions in effect at the time an offense occurs govern sentencing. Jennings v. State, 216 Ark. 217, 633 S.W.2d 373 (1982); Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981); Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). However, those cases, and others like them, deal with attempts to apply a harsher sentence than was provided by law at the time an offense was committed, rather than with changes in sentencing procedures.

While the addition of an aggravating circumstance to be considered in determining whether the sentence will be death or life without parole does not guarantee the harsher sentence, it may have a direct effect on the decision and thus result in a harsher sentence than might have been imposed were that aggravating circumstance not available. We can hardly say that a “standard” for application of the death penalty is merely procedural. We regard it as a substantive provision that cannot be applied retroactively. It was error to do so, thus we must remand the case for resentencing.

3. Motions to suppress inculpatory statements

Mr. Bowen contends that the custodial statements he made to the Phillips County Sheriff, the Chief of the Elaine Police, and the FBI should have been suppressed by the Trial Court. In making this argument, Mr. Bowen argues (a) the statements were obtained without a valid waiver of his Miranda rights, (b) the statements and waiver of rights (if made) were not voluntary, knowing, and intelligent, and (c) the statements were the fruit of an illegal arrest.

In his order denying the motion to suppress the statements, the Trial Court did not address the statements made to Chief Lawman just after the arrest. It was Mr. Bowen’s obligation to obtain a ruling with respect to those statements in order to preserve a point of appeal with respect to them. State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992); Hobbs v. State, 43 Ark. App. 149, 862 S.W.2d 285 (1993).

The statement to Sheriff Winfrey was made after Mr. Bowen said he “wanted to think about” whether to waive his rights and make a statement. As he escorted Mr. Bowman to a holding cell, the Sheriff told Mr. Bowen he did not think he had committed the crime alone, mentioned that he had 25 to 30 officers ready to investigate, and asked Mr. Bowen to do him and himself a favor by saying what happened. At that point Mr. Bowen said there were others involved but that one of them “had nothing to do with it.” Mr. Bowen then asked the Sheriff to promise that nothing would happen to her, and Sheriff Winfrey responded that “if she had nothing to do with it, then nothing would happen to her.”

Mr. Bowen told the Sheriff that the others were Crickett Tindall, who is Mr. Bowen’s mother, and her friend, Cheryl Lob-dill. Mr. Bowen described their vehicle and told the Sheriff that they were on their way to Fort Smith. Shortly after giving these statements, Mr. Bowen was taken to a hospital in Helena for treatment of his ankle which he apparently had injured while attempting to flee after the robbery.

We are not convinced by Mr. Bowen’s arguments about the voluntariness of his remarks to Sheriff Winfrey. He made a passing reference to having been abused by sheriff’s deputies and to the pain he suffered from his injured ankle, but all of the police witnesses testified Mr. Bowen seemed alert and not to have been seriously affected by his injury. They also testified there was no abuse or coercion.

Custodial statements are presumed to be involuntary with the burden of proof placed on the State to show that they are not. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995); Everette v. State, 316 Ark. 213, 871 S.W.2d 568 (1994). If, however, after an independent review of the “totality of the circumstances” we conclude there was no coercion and the statements were made knowingly and intelligently we do not reverse on the basis of their admission into evidence. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994).

In this instance, the evidence presented by the State was sufficient to overcome the presumption. We should note here that statements made to the FBI agents later were made after a clear waiver by Mr. Bowen of his rights. He told those agents in detail about the planning and commission of the crime.

The issue that draws our attention has to do with whether Sheriff Winfrey acted properly in questioning Mr. Bowen after Mr. Bowen had acknowledged an understanding of his right not to answer but had declined to sign a waiver of rights form, saying he needed to “think about” waiver. Does that statement amount to an invocation of his right to remain silent? Perhaps so, but the question is whether a subsequent statement may imply waiver.

Mr. Bowen cites United States v. Ramsey, 992 F.2d 301 (11th Cir. 1993), for the proposition that if there has been an equivocal invocation of rights it is the duty of a police officer not to inquire further other than to ask questions in an attempt to clarify the waiver. Mr. Ramsey had, after being warned of his rights and asked to make a statement, looked away from his interrogator and remained silent. Other investigators took him to another room out of the presence of the first questioner on the assumption that he just did not want to talk to her but would talk to them. They urged him to talk, suggesting that it would benefit him to do so, and he made an inculpatory statement. It was held that the investigators had an obligation to clarify his “equivocal invocation” of his rights before asking questions which could lead to an inculpatory statement.

Our view of this matter is that, by saying he wanted to “think about” waiver, Mr. Bowen indicated an understanding of what was at stake. We do not regard the statement as an invocation of his rights, however. In a recent case, the Supreme Court has held that the invocation of the right to counsel must be made with specificity. Davis v. United States,_U.S._, 114 S.Ct. 2350 (1994). We see no distinction between the right to counsel and the right to remain silent with respect to the manner in which it must be effected.

Mr. Bowen had acknowledged that he understood his right to remain silent and to the presence of counsel and yet he spoke without further mention of those rights. We have held that by merely answering questions one may waive one’s right to remain silent by implication. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).

Before leaving the subject of the inculpatory statements, we must mention briefly several other contentions of Mr. Bowen. He argues the Sheriff made a promise that nothing would happen to his mother if Mr. Bowen cooperated. The Sheriff’s testimony was that he said nothing would happen to her if, as Mr. Bowen had said, she had no part in the robbery and murder. Obviously, if that is all that was said it amounted to such a conditional promise that it could not be considered to be coercive.

Mr. Bowen also asserts his mental illness prevented his statements from being intelligently and voluntarily made. Again, the evidence to the contrary in the testimony of the police officials who took the statements posed a question of credibility only. The detail in which he described to the FBI agents the crime and its planning also lent credibility to the State’s position that Mr. Bowen was not incapacitated by his alleged mental illness.

Finally, Mr. Bowen contends all his statements were the results of an illegal arrest and should have been suppressed for that reason. We do not consider that point as the trial court made no ruling on it. Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994).

4. Failure to order additional competency examination

Mr. Bowen was adjudicated competent to stand trial on July 31, 1992. The trial did not begin until December 7, 1993. During the trial Mr. Bowen testified as several different “alters” or personalities. His counsel sought, and was often granted time to explain matters to the personality testifying or hearing the testimony of others.

An accused is presumed competent to stand trial, and the burden of proving incompetence is on the accused. Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995). Once he was determined to be competent, Mr. Bowen once again had the burden of proving incompetency. In addition to the conclusion that Mr. Bowen’s acceptance of his personality disorder rendered him competent, the Trial Court also had before it the testimony of Dr. Hall, who stated that although Mr. Bowen still suffered from MPD, his condition could be managed. Moreover, the record indicates that Mr. Bowen performed well on examinations that tested his ability to understand the legal system. In addition, we find no evidence that Mr. Bowen was prejudiced by his mental condition in his or his counsel’s conduct of the trial. Under these circumstances, we hold there was no error in refusing a further mental examination.

5. Denial of motion to acquit

Dr. Anderson and Dr. Hall, who treated Mr. Bowen during his stay at the State Hospital, filed a report in which they declared that he was competent to stand trial but unable to appreciate the criminality of his act at the time the crime was committed. Mr. Bowen contends he should have been acquitted by the Trial Court pursuant to Ark. Code Ann. § 5-2-313 (Repl. 1993), which provides that a trial court may enter a judgment of acquittal on the ground of mental disease or defect if satisfied the defendant lacked the capacity to conform his conduct to the requirements of the law or appreciate the criminality of his act.

In cases that have interpreted § 5-2-313, this court has found that the statute provides that a court “may” enter a judgment of acquittal on the grounds of mental disease or defect. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Moreover, “the statute permits the trial judge to acquit the defendant in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear.” Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981).

Denial of the motion was clearly within the Trial Court’s authority and discretion. The medical report stated at one point, “Concerning criminal responsibility, again Mr. Bowen’s Multiple Personality Disorder presents problems in clearly making a decision.” It went on to say that some of his personalities appeared to understand the wrongfulness of the alleged behavior and thus sought to avoid apprehension, but other alters had no memory of the events. The report may not be said to have presented a “clear” determination, and we hold there was no error in failure to acquit pursuant to the statute.

6. Funds for prosecution expert

In response to the State Hospital report which concluded Mr. Bowen was incapable of appreciating the criminality of his acts or conforming his conduct to the law at the time the crime was committed, the State asked for additional evaluation by Dr. Mathews, a professor at the University of Arkansas for Medical Sciences. In the motion it was urged that the MPD diagnosis made by the State Hospital was uncertain and could be the basis of a mistake to be made by the judge and the jury. It was noted that State Hospital records with respect to Mr. Bowen had not been made available to the prosecution. The operative words of the motion were, “The State moves the Court to allow ... [Dr. Mathews] to examine the Defendant, review all medical and pertinent records concerning the Defendant at the State Hospital, diagnose any and all mental conditions which the Defendant may have, and form an opinion....” The motion concluded by stating, “The cost of the further psychiatric examination and evaluation shall be borne by the State.” The motion did not contain a request for funds.

In response, counsel for Mr. Bowen opposed the motion as “doctor shopping” and noted that a request for $10,000, presumably for the purpose of paying Dr. Mathews, from the Phillips County Quorum Court had been highly publicized.

The Trial Court’s order granting the motion said nothing about funding for the further examination. Dr. Mathews testified he was paid $5,000 for his work and testimony in the case, but did not reveal the source.

The point of appeal is that the Trial Court erred in “allowance of funds to the prosecution for the purpose of securing its own expert opinion regarding Bowen’s mental health.” The record simply does not support the assertion that the Trial Court awarded funds to the State for the additional examination. True, we have said that an indigent defendant has no right to funds to shop for a doctor to contradict the report of experts at the State Hospital. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992). We have been cited to no case, however, in which we have said that a defendant, who has the means to obtain it, may not present the testimony of an additional expert. Nor is any authority cited to the effect that the State may not do so.

7. Overlapping offenses

Mr. Bowen argues that the Trial Court erred in instructing the jury on both capital felony murder and first degree felony murder. Essentially, he contends that the overlap of the two instructions gave the jury unfettered discretion in choosing his punishment.

No objection on the basis of the overlapping of the instructions was made at the trial. We decline to review the point. Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).

8. Improper closing argument

Mr. Bowen contends that the prosecution made improper remarks during closing arguments in the guilt-innocence phase and in the sentencing phase of his trial. He argues that his constitutional rights were violated because the comments improperly and unfairly influenced the jury.

No objection was made to any of the prosecution’s closing argument made at the conclusion of the guilt-innocence phase of the trial. Absent contemporaneous objection at the trial, we will not review the prosecution’s closing argument unless it was so flagrantly improper and so highly prejudicial in character as to have made it the duty of the Court on its own motion to instruct the jury not to consider it. See Wicks v. State, supra; Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916).

The arguments made in the guilt-innocence phase of this case do not rise to that flagrant or highly prejudicial level. There was a “victim impact” reference to Ms. Vondran’s family, although no evidence had been produced in support of it. There was also a “they will do it every time” argument made to suggest that criminal defendants always question the voluntariness of their statements to the police. Perhaps most objectionable was the Prosecutor’s remark that the presumption of innocence no longer applied to Mr. Bowen due to the strong evidence of his guilt. While these arguments could be characterized as improper, they are not of the sort requiring the Trial Court to step in absent an objection.

In the sentencing phase of the trial, the prosecution made closing argument to the effect that application of the death penalty would protect “our family and friends” from “somebody who kills people.” Again, there was no objection, and we hold the remark was not of the sort requiring the Trial Court to act independently.

Mr. Bowen’s counsel did object to two statements made in closing argument by the Prosecutor. The jury was told that in order to find mitigation based on mental illness the illness had to be “extreme.” That was a correct statement of the law, as the jury instruction based on the statutory mitigating circumstance was, “The capital murder was committed while the defendant was under extreme mental or emotional disturbance.”

The other statement to which an objection was made was a “story” told by the Prosecutor about how he had discussed the death sentence in another case years earlier with a candidate for attorney general named “Bill.” Upon being asked by “Bill” whether he thought application of the death penalty would deter others, he had replied “I said Bill, I sure do.” The objection was overruled.

Attorneys are given “leeway” in closing remarks. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993). We note that the jury was instructed that remarks by the attorneys are not evidence. Even though there was no evidence before the jury from which it could determine if the “story” were true, we cannot say it was an abuse of the Trial Court’s discretion not to sustain the objection. It amounted to very little more than a statement of the Prosecutor’s continuing belief in the deterrent effect of capital punishment. To the extent the “story” may have had political overtones, we cannot say they were such as to inflame the passion of the jury.

9. Denial of continuance motions

During the trial, Mr. Bowen’s counsel made frequent motions for a continuance. The primary reasons given were Mr. Bowen’s alleged changes in personality and the accompanying problems that posed for his defense, as well as counsel’s limited opportunity to visit with his client immediately before the beginning of the trial because of Mr. Bowen’s delayed return from the State Hospital.

A motion for a continuance is addressed to the sound discretion of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993); Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990); Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995).

Mr. Bowen has failed to allege prejudice. Counsel requested a continuance or pause in the proceedings frequently, and despite concerns over the length of the trial, the Trial Court attempted to accommodate counsel on many occasions when he requested more time to consult with his client. We conclude there was no abuse of discretion.

10. Voir dire of prosecutor

The trial began December 7, 1992. The newly elected prosecutor joined in the trial after taking office in January, 1993. By that time, most of the jurors had been selected. During voir dire, which occurred before the new prosecutor’s participation, each panel of jurors was asked whether they were related to, acquainted with, or had been represented by the two prosecutors who had been assigned to the case at that time.

Questions were asked of the selected jurors and those to be selected whether they knew or had been represented by the new prosecutor, but the jurors were not asked whether any of them were related to him. Mr. Bowen argues that was error.

Although a general objection was made to the jury ultimately selected on the ground of lack of impartiality, and the objection contained a reference to “questioning about a different prosecuting attorney” the point now being argued was not presented to the Trial Court, and we thus decline to consider it. Wicks v. State, supra.

11. Overbreadth of aggravating circumstances

Mr. Bowen argues the aggravating circumstances concerning “murder committed in an especially cruel or depraved manner” and “murder committed for the purpose of avoiding or preventing an arrest” should not have been presented to the jury because they violate the Eighth and Fourteenth Amendments to the Constitution of the United States.

We rejected the overbreadth and vagueness arguments with respect to the “avoiding or preventing arrest” aggravating circumstance in Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). The United States Supreme Court rejected the overbreadth argument with respect to the “especially heinous, cruel or depraved manner” aggravating circumstance in Arizona upon which our statute was modeled. Walton v. Arizona, 497 U.S. 639 (1990). See also Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). We hold the statutes, Ark. Code Ann. §§ 5-4-603 and 5-4-604 (Repl. 1993), permitting these aggravating circumstances to be considered by the jury are not unconstitutionally overbroad.

12. Failure to define “mitigating circumstances”

In his closing argument on the sentencing phase of the trial, Mr. Bowen’s counsel presented a dictionary definition of the term “mitigating” to the jury. He emphasized that the term meant “extenuating or reducing the degree of moral culpability” as opposed to “justification.” He now contends the Trial Court should have defined the term “mitigating circumstances” for the jury.

We assume jurors to be persons of sufficient intelligence to understand the meaning of ordinary language. See Hamilton v. Hamilton, 178 Ark. 241, 10 S.W.2d 377 (1928). Even if the term “mitigating circumstances” required further definition we would not be able to find prejudice here in view of counsel’s correct and unchallenged presentation of the definition to the jury.

13. Mitigating circumstances not unanimously found

Mr. Bowen argues that the court’s instructions on mitigating circumstances suggested to the jurors that they could consider only the mitigating circumstances they unanimously found to exist. In particular, he contends that it is likely the jury found that the three forms relating to mitigating circumstances, one which asks the jury to list those they unanimously found to exist, another which asks for a list of those mitigators that some jurors, but not all, found to exist, and a third which asks the jury to list those mitigators that they unanimously found did not exist, are indistinguishable to a degree that suggested to the jury that a unanimous vote was required before any mitigating circumstance was found.

This same argument was made in Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), on the basis of a Maryland case. We decided the argument lacked merit. We wrote:

Our Form 2, which accompanies AMCI 1509, expressly allows the jury to list mitigating circumstances which were found by some, though not all, of its members. Form 3 then allows the jury to determine if the aggravating circumstances outweigh any mitigating circumstances. Nothing in the forms indicates to the jury that a mitigating circumstance must be found unanimously before it may be considered in the weighing process. The potential for misunderstanding is not present in the Arkansas forms as it is in the Maryland forms.

14. Omission of the word “other” from AMCI 106

When he instructed the jury, the Trial Court said that “circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any reasonable conclusion.” (emphasis added). Our model instruction, AMCI 106, reads, in significant part, as follows: “inconsistent with any other reasonable conclusion.” Mr. Bowen contends that the Trial Court’s omission of the word “other” created a reasonable possibility that the jury understood and applied the instruction in an unconstitutional manner.

This argument was not presented to the Trial Court. We decline to consider it. Parker v. State, supra.

15. Failure to give notice of aggravating circumstances

Mr. Bowen argues that the Trial Court erred in denying the objection that his counsel made to the State’s failure to give Bowen’s counsel sufficient notice of the aggravating circumstances the State would ask to be submitted to the jury during the penalty phase of the trial.

We need not discuss this point in depth as we are remanding the case for resentencing. We will say, however, that we doubt any prejudice resulted from lack of notice. By the time of the sentencing phase of the trial Mr. Bowen’s counsel was well aware of the State’s evidence and was, of course, aware of the fact that aggravating circumstances are limited to those listed in § 5-4-604. Matching the evidence with the list of possible aggravating circumstances should have provided the information needed.

16. Chain of custody of evidence

Mr. Bowen contends it was error for the Trial Court to allow the State to introduce into evidence the clothing he was wearing when he was arrested on September 19, 1990. The State introduced the clothing during the testimony of Dale Arnold, an investigator for the Arkansas State Police who was in charge of gathering the physical evidence of the crime. In essence, Mr. Bowen argues that the clothes were not properly shown to have been his because the State failed to establish a chain of custody prior to their introduction.

The purpose of establishing a chain of custody is to prevent the introduction of evidence which is not authentic. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). To prove authenticity the State must show a reasonable probability that the evidence has not been altered in any significant way. Id. It is not necessary for the State to call every person who could conceivably have come into contact with the evidence; the Trial Court in his or her discretion need only be satisfied that the evidence presented is genuine and the reasonable probability is that no one has tampered with it. Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990); Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991).

Mr. Arnold testified he received the clothes from Tom Hall, the jailer at the Phillips County Jail who booked Mr. Bowen. It is reasonable to conclude that, as Mr. Hall admitted Mr. Bowen into the jail, it was he who received the clothing once Mr. Bowen changed into a prison uniform. Under these circumstances, the possibility of tampering was shown to be minimal, and it cannot be said that the Trial Court abused his discretion.

17. Unfair hearsay rulings

Mr. Bowen asserts that the Trial Court made a number of errors in ruling on hearsay objections. In particular, he asserts error in granting hearsay objections made by the State, and in denying ones made by defense counsel.

Hearsay is a statement made by an out-of-court declarant that is repeated in-court by a witness and is offered into evidence for the truth of the matter asserted. Piercefield v. State, 316 Ark. 128, 871 S.W.2d 350 (1994); Ark. R. Evid. 801(c). Hearsay is generally inadmissible except as provided by law or by the rules of evidence. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993). We will not reverse a trial court’s determination as to the admissibility of hearsay unless there was an abuse of discretion. Latham v. State, 318 Ark. 19, 883 S.W.2d 461 (1994).

Mr. Bowen first complains that when Special Agent Battershell testified during the trial, the State was permitted to introduce into evidence the statement he took from the defendant. Mr. Bowen is apparently arguing that the report was hearsay that should not have been admitted. As the State argues, the statement was admissible as an admission of a party-opponent under A.R.E. 801 (d)(2)(i).

Mr. Bowen also contends that the Trial Court erred when it refused to admit a progress note prepared by Dr. Anderson on February 6, 1992, in which the doctor records his impressions of a session where the personality “William Luther Tindall” appears. Mr. Bowen does not assert any legal basis for his allegation of error on this ruling. Rather, it appears that he is arguing that it should have been admitted because the Trial Court allowed the prosecution to introduce hearsay. In any event, the trial transcript reveals that Dr. Anderson was permitted to read the entire progress note into the record; therefore, the Trial Court did not abuse his discretion.

Mr. Bowen next contends the Trial Court erred when he permitted the State’s expert, Dr. Mathews, to testify concerning notes the State Hospital staff made concerning evidence that Mr. Bowen was malingering. When the defense counsel objected, he did not appear to be making a hearsay objection. Rather, he stated, “If he doesn’t know it’s true he can’t testify to it.” The Trial Court overruled the objection, saying that he was an expert who was giving an opinion, and that the objection went more to the weight of the evidence rather than its admissibility. The Trial Court was correct. When an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but presents a jury question as to the weight which should be assigned the opinion. Arkansas State Highway Comm’n v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985).

Mr. Bowen next argues that the Trial Court should not have allowed Dr. Anderson to testify, in response to a question posed on cross examination, concerning a statement made by Mr. Bowen that was reported in one of his medical records. Specifically, the record contained an interview of Mr. Bowen’s father, Fred Bowen, that was conducted by one of the staff at the State Hospital. During the interview, Fred Bowen reported that his son had said, in effect, that “I could kill you and get away with it because of my mental history.”

The transcript from this portion of Mr. Bowen’s trial reveals that although an objection was made, it was rather obscure and referred only to the admissibility of Mr. Bowen’s medical history and Dr. Anderson’s lack of direct knowledge of the statement. After the objection was overruled, the prosecutor said he would rephrase the question as it had been “badly phrased.” He was then allowed to elicit the testimony about the record without any further objection from the defense. Under these circumstances, this argument was not properly preserved for appeal. Robertson v. State, supra.

Mr. Bowen also argues that the Trial Court erred when he refused to allow Marla Gergely to read to the jury a psychosocial history she had prepared by interviewing people who knew Mr. Bowen. At trial, Mr. Bowen’s attorney argued that the psycho-social history was not hearsay because it was not offered for the truth of the matter asserted. We are not told the purpose of the offering, however, and it is apparent that the only purpose for offering the statements of these people was for the truth of the matter asserted. As Mr. Bowen does not argue that any exception applies, we find no error.

In connection with the ruling on the admissibility of statements made in Mr. Bowen’s psycho-social history, Mr. Bowen argues that Dr. Anderson should not have been permitted to testify about the contents of a progress note prepared by Nurse Rudder on November 28, 1991. In particular, he takes issue with Dr. Anderson being permitted to read the following statement from the report: “Came to door of office with another patient. Waved and said in baby talk, I just came to wish you happy turkey day. I used to be nine and now I am five and my name is Davey.” The statement was offered to show that Mr. Bowen made the statement, and not for the truth of the matter asserted.

In the last paragraph of his argument, Mr. Bowen simply asserts that the court erred when it sustained the State’s hearsay objections, but denied all of his. It is, of course, possible that all of the State’s objections were valid and all of Mr. Bowen’s were not. At any rate, our only possible course of review is to consider each allegation of error on which any specific argument is made, and we have done so.

18. Improper restriction of defense testimony

Mr. Bowen contends the Trial Court erred by not allowing Marla Gergley to refresh her memory with notes made by Dr. Hall. We decline to consider this argument because Mr. Bowen made no proffer of the excluded evidence, thus we are unable to evaluate the matter. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991).

19. Exclusion of juror

During voir dire, venireperson Hicks said that, because of his religious beliefs, he did not feel qualified to take another’s life. He did not unequivocally state that he would not sentence Mr. Bowen to death, but said, “To be a juror you all are looking for me to complete my whole job all the way through and the death penalty when it comes up to it and I don’t know whether I will be able to go to a death penalty with that,” and “That I wouldn’t know until I faced it, but I am taught, you know, to not try to pass judgment on another person’s life. . . .” Mr. Bowen argues that because Mr. Hicks did not definitely say that he would not consider the death penalty, the Trial Court erred in excusing him for cause.

In previous cases that have dealt with this issue, we have deferred to the ability of the a judge to hear the responses made by the venirepersons during voir dire and to observe their demeanor. Additionally, in Pickens v. State, supra, we recognized that the standard for deciding if a venireperson should be excused in this situation has become more relaxed:

The standard for determining if a venireperson should be excused for cause in this situation is no longer whether the venireperson makes it unmistakably clear that he or she would automatically vote against the death penalty. Instead, the court should decide if the juror’s views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and oath. It is no longer necessary that the juror’s bias be shown with unmistakable clarity. . . . The Court in Wainwright v. Witt, 469 U.S. 412 (1985), clarified its holding in Witherspoon to impose this more flexible standard, as we have recognized. See Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

The Trial Court did not err by excusing Mr. Hicks for cause.

Compliance with Rule 4-3(h)

The record has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h), and it has been determined that there were no errors with respect to rulings on objections or motions prejudicial to the appellant not discussed above.

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

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

license: Public Domain

text:
    Joanne CHATELAIN and Daryl Mote v. Lawrence A. KELLEY
    95-450
    910 S.W.2d 215
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      Bailey Law Firm, by: Frank H. Bailey, for appellants.

      Davis, Cox & Wright, by: Constance G. Clark and Walter B. Cox, for appellee.
   David Newbern, Justice.

At the end of a full-term pregnancy in 1989, appellant Joanne Mote, whose name is now Joanne Chatelain, was admitted to a hospital for delivery of her child. While she was awaiting delivery, an emergency Caesarian section became necessary, and Dr. Lawrence A. Kelley, the appellee, was to perform the procedure. Ms. Mote and her then-husband, appellant Daryl Mote, alleged the child was stillborn due to a delay in the operation caused by Dr. Kelley. They sued Dr. Kelley and the hospital for wrongful death.

After a voluntary nonsuit in 1992, the complaint was refiled against Dr. Kelley only. The Trial Court concluded that an unborn fetus is not a “person” for purposes of the Arkansas Wrongful Death Statute, Ark. Code Ann. § 16-62-102 (Supp. 1993), and granted Dr. Kelley’s motion for summary judgment. We affirm the judgment.

As it did in 1989, § 16-62-102 provides in significant part the following:

Wrongful death actions — Survival.

(a)(1) Whenever the death of a person shall be caused by a wrongful act, neglect, or default and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, then, and in every such case, the person who, or company, or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death may have been caused under such circumstances as amount in law to a felony.
* * *
(b) Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.

Whether the death of a fetus is the “death of a person” in the context of the law of wrongful death is an issue of first impression in Arkansas. As reported in B. Lingle, Comment, Allowing Fetal Wrongful Death Actions in Arkansas: A Death Whose Time Has Come?, 44 Ark. L. Rev. 465 (1991), a majority of the states which have considered the issue have interpreted similar legislation to hold that the death of a fetus qualifies as the death of a person. A significant minority of jurisdictions have, however, concluded to the contrary. See also S. Speiser, C. Krause, and J. Madole, Recovery for Wrongful Death and Injury (3d Ed. 1992 and Supp. 1995); Annot., 40 A.L.R.3d 1222 (1971).

Typical of the majority view is the strong opinion in Summerfield v. Superior Court, 698 P.2d 712, 144 Ariz. 467 (1985). The Arizona Supreme Court reviewed the history of the issue from Justice Holmes’s pronouncement in Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am. Rep. 242 (1884), that no action would lie for the death of a fetus because it was part of its mother rather than an independent being, through present-day pronouncements to the contrary. The Arizona Court pointed out that the law clearly would allow a cause of action for a prenatal injury resulting in the death of a child born alive, and it is thus illogical to say that a prenatal injury resulting in the death of a viable fetus should not form the basis of a wrongful death claim. The Court stated that “with regard to the issue of recognizing a loss to the survivors, viability is a less arbitrary and more logical point than the moment of birth.”

A common thread in the cases adopting the majority view is that the action for wrongful death is “remedial” in nature and is thus to be interpreted liberally with a view to accomplishing its purposes of compensating injured persons and deterring harmful conduct. See, e.g., Volk v. Baldazo, 651 P.2d 11 (Idaho 1982).

Cases espousing the minority view include Duncan v. Flynn, 342 So.2d 123 (Fla. App. 1977), in which it was held that there must be a live birth to sustain a claim with respect to a prenatal injury to a fetus under a wrongful death law. The Court referred to its earlier opinions where it held that once a child is born alive, he or she is a “person” who can maintain an action for damages resulting from any prenatal injuries that were suffered. The holding was that a live birth must have occurred either through complete expulsion in a vaginal delivery or complete removal in Caesarian section, for acquisition of a “separate and independent existence” from the mother.

In addition to drawing the recovery line at “live birth,” other courts in the minority have considered legislative enactments in other areas of the law which have treated injuries to stillborn fetuses differently from injuries to those born alive. In Giardina v. Bennett, 545 A.2d. 139 (N.J. 1988), the New Jersey Supreme Court noted how the state legislature distinguished between persons and stillborn infants and fetuses when it had the opportunity, particularly in the Uniform Anatomical Gift Act. [See Ark. Code Ann. §§ 20-17-601 through 20-17-617 (Repl. 1991 and Supp. 1993).] The Court observed that “the Legislature has in other ways dealt with the consequences of the prenatal condition,” such as allowing children, once born, “to acquire rights or interests by way of inheritance or other devolution of property.” Also, at the time the New Jersey Wrongful Death Act was enacted, a fetus was not considered a person. Under these circumstances, it was held that the legislature “never intended to create a derivative action in favor of the survivors of a fetus never bom alive....”

The Iowa Supreme Court was also constrained by its rules of statutory construction when it made its decision in Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981), distinguished on other grounds in Audobon-Exira Ready Mix v. Illinois Gulf Railroad Co., 335 N.W.2d 148 (Iowa 1983). The Iowa Court observed that a “person” is a human being who has “attained a recognized individual identity” by being born alive. It was noted that Iowa, unlike some other states, had a “survival” kind of wrongful death statute. The Court stated:

Such a statute does not create a new cause of action in a decedent’s survivors; rather, it preserves whatever rights and liabilities a decedent had with respect to a cause of action at the time of his death. [Citations omitted.] The cause of action thus preserved is deemed to accrue to the decedent’s estate representative “at the time it would have accrued to the deceased if he had survived.”

Our § 16-62-102 is also a “survival” kind of statute. Under the Iowa wrongful death statute, a cause of action only accrues when a person, once “living,” has died. The Court engaged in a statutory analysis similar to the New Jersey Supreme Court’s opinion in the Giardina case. It examined the Iowa Code and noted that in other areas the “legislature has not hesitated to be specific when it intended a statute to apply to fetuses.” Since an earlier decision in which a fetus was determined not to be a person, the Iowa legislature had not amended the wrongful death statute to include fetuses.

Another concern expressed in the minority jurisdictions has been measurement of the recovery. In New Jersey when Graf v. Taggert, 204 A.2d 140 (N.J. 1964), was decided, the damages that could be recovered under the wrongful death act were limited to pecuniary loss. Without reaching the question whether a fetus was a “person,” the Court declined to recognize that a cause of action could be maintained because damages would be too speculative: “It is virtually impossible to predict whether the unborn child, but for its death, would have been capable of giving pecuniary benefit to its survivors.” Id. at 144.

In Endresz v. Friedberg, 248 N.E.2d 901 (N.Y. 1969), the New York Court of Appeals echoed the same concern, saying, “If the fetus is stillborn, speculation as to causation and particularly loss suffered is unreasonably increased.” The New York Court also perceived a risk of double recovery and said:

[S]ince the mother may sue for any injury which she sustained in her own person, including her suffering as a result of the stillbirth, and the father for loss of her services and consortium, and additional award to the “distributees” of the foetus would give its parents an unmerited bounty and would constitute not compensation to the injured but punishment to the wrongdoer.

Various reasons have been held to justify adhering to the “live birth” rule in these states. One has been the difficulty in moving the line from live birth to viability. The Court in the Endresz case stated:

It is argued that it is arbitrary and illogical to draw the line at birth, with the result that the distributees of an injured foetus which survives birth by a few minutes may have a recovery while those of a still born foetus may not. However, such difficulties are always present where a line must be drawn. To make viability rather than birth the test would not remove the difficulty but merely relocate it and increase a hundredfold the problems of causation and damages. Thus, one commentator aptly observed that (Wenger, Developments in the Law of Prenatal Wrongful Death, 69 Dickinson L. Rev. 258, 268), “since any limitation will be arbitrary in nature, a tangible and concrete event would be the most acceptable and workable boundary. Birth, being a definite, observable and significant event, meets this requirement.”

In addition to this line-drawing problem, courts have also considered the different situations of the stillborn fetus and the child who survives birth and must live with his or her injuries. The Endresz case is an example. In Justus v. Atchison, 565 P.2d. 122 (Cal. 1977), the California Supreme Court compared the emotional effect of loss of a fetus with loss of a child after a living birth had occurred.

The combination of expressions of public policy, logic, precedent, and legislative intent found in the cases of other states presents a very difficult field to traverse. We find the crossing less difficult, however, when we add decisions we have made on the periphery of the question presented.

In three cases, we have had the opportunity to touch upon the issue of whether a fetus can be considered a “person.” Dr. Kelley contends the holdings in these cases indicate a disposition to hold that, for purposes of wrongful death suits, a fetus is not a person. On the other hand, the Motes contend that these decisions were in other areas of law so we are not precluded from holding that a fetus is a person in the wrongful death context.

In the first case, Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984), Sheryl Carpenter was killed in a car accident while she was between eight and eight-and-one-half months pregnant. The investigating officer found the dead fetus outside Sheryl Carpenter’s body and concluded that the force of the impact had thrust the fetus through the mother’s abdominal wall. The widower, Cary Carpenter, filed a petition in probate court for the appointment of an administrator for the fetus. The Probate Court held it was without authority to order the administration of the estate of an unborn fetus. Mr. Carpenter appealed and framed the issue as “whether an unborn viable fetus or viable fetus born dead as direct result of trauma caused by negligence or willful and wanton misconduct has a cause of action against the tortfeasor.”

We affirmed the decision of the Probate Court. In doing so, we noted that the issue stated by Mr. Carpenter could be reached only in an adversary tort proceeding and not in an ex parte probate proceeding. We said:

The wrongful death statute, Ark. Stat. Ann. §§ 27-906-27-910 (Repl. 1979), will determine whether, or to what extent, there is a right to maintain an action, or to recover damages, for the death of an unborn child. The action, if any, is a tort action and is cognizable in circuit court. We will not interpret the wrongful death statute in an ex parte probate proceeding. . . . The issue before the probate court and now on appeal in this case is whether an unborn fetus or a fetus born dead is a deceased person within the terms of the probate code. . . .

The Motes argue the foregoing language indicates we did not decide the issue in Carpenter v. Logan because the wrongful death statute was not applicable in a probate proceeding. Dr. Kelley argues that this opinion supports his position because we went on to state that, within the context of probate, there was no basis for the conclusion that a fetus can be considered a “decedent.” We said:

In Arkansas the probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incidental to the exercise of jurisdiction and powers specifically granted. [Citation omitted.] Nothing is said about unborn children in the constitutional provision concerning probate courts or in the statutory jurisdictional provision. [Citations omitted.] Any attempt to extend the probate code to unborn children would be without specific authority and would be void.

Dr. Kelley argues that, just as a fetus cannot be considered a “decedent” under the probate code, a fetus should not be considered a “person” under the wrongful death statute.

In Carpenter v. Bishop, 290 Ark. 424,720 S.W.2d 299 (1986), Mr. Carpenter, as father and next friend, sued the mother, alleging that her negligence had resulted in the death of the fetus. On appeal, we concluded that the issue of whether a viable fetus born dead is a “person” need not be reached, because the .suit against Sheryl Carpenter was barred by the doctrine of parental immunity.

In Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987), we decided a fetus was not a “person” as the term was used in the manslaughter law. Mr. Meadows, while intoxicated, drove his car across the center line of the highway and struck an oncoming car. The driver of the car and a viable fetus being carried by the passenger were killed. Mr. Meadows was convicted of two counts of manslaughter. On appeal, he argued that the reckless killing of a viable fetus is not included within the purview of the manslaughter statute which refers to causing the death of another “person.” Ark. Code Ann. § 5-10-104 (Repl. 1993).

In our opinion, we noted that the term “person” was not defined by the statute, and therefore, reference had to be made to common law for a definition. At common law, the terms “human being” and “person” did not include fetuses.

We also noted the following in the Meadows case:
An early feticide statute, Ark. Stat. Ann. § 41-2223 (Repl. 1964) provided that “the willful killing of an unborn, quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be adjudged manslaughter.” . . . However, that manslaughter statute, specifically relating to unborn children, was expressly repealed by Act 928 of 1975. Obviously, the legislative intent shown, if any, is that the killing of a viable fetus is not manslaughter.

Dr. Kelley contends the case supports his position as both we and the General Assembly refused to recognize a viable fetus as a “person” for purposes of the crime of manslaughter. The Motes argue the case and statutory revision are essentially irrelevant because they do not deal with the civil action for wrongful death but have to do with the creation of a common law crime and interpretation of a criminal statute which is circumscribed by thick constitutional strictures. We tend to agree with both points of view, but we add that the reference to the revision of the manslaughter statute, like the reference to fetuses in the Uniform Anatomical Gifts Act, both in New Jersey and here, demonstrates that the General Assembly knows how to include the proper terminology or exclude it in accordance with its intent to protect or not to protect fetuses.

Finally, it must be noted that since these cases were decided, Amendment 68 was added to the Arkansas Constitution. In that Amendment, the public policy of the State regarding unborn children is announced as follows: “The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.” If we were to hold that Amendment 68 was a self-executing amendment requiring us to interpret the wrongful death law as protecting fetuses in accordance with its terms, we would have to draw the line not at birth or at viability but at conception, and that is a position that has not been advanced by anyone to our knowledge.

In addition to the Constitution, the public policy of this State is found in its legislation. Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993); Walmart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991). The General Assembly is particularly suited to making this sort of policy decision. Nabholz Constr. Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995). Despite its obvious ability to do so the General Assembly has not seen fit to expand the definition of “person” beyond the common law limits found in the manslaughter and probate contexts.

We are reluctant to create an inconsistency in the laws of this State by holding “person” includes viable fetus for the purpose of the wrongful death statute when we have reached the contrary conclusion in the criminal law and the law of probate.

Surely this decision will heighten the General Assembly’s awareness of the issue at hand, and we commend it to the legislative prerogative.

Affirmed.

Glaze, Corbin, and Roaf, JJ., dissent.

Tom Glaze, Justice,

dissenting.

At least thirty-one states judicially allow a wrongful death action for the death of a viable fetus. Only nine states preclude such an action. The reasons given in support of those jurisdictions which permit recovery for the tortious conduct of another causing prenatal injury resulting in the death of a viable unborn child are compelling.

It is first noteworthy to say that, while Arkansas has, as yet, not decided the issue, virtually all American jurisdictions have ruled that a tort action can be maintained to recover damages for prenatal injuries negligently inflicted, if the injured child is born alive. See 40 A.L.R.3d 1222, 1228 (1971); Prosser and Keeton, The Law of Torts § 55, at 368 (5th ed. 1984). In this respect, Prosser states that the child, if he is born alive, is now permitted in every jurisdiction to maintain an action for the consequence of prenatal injuries, and if he dies of such injuries after birth, an action will lie for the wrongful death. This statement appears consistent with Arkansas statutory law, and the majority opinion here takes no exception to this proposition. While the majority opinion appears to recognize that a prenatal-injured, viable fetus may have a cause of action for negligence if the fetus is born alive, no such action exists if the fetus is stillborn. Such a distinction is illogical.

In my view, it is logically indefensible and unjust to deny an action where the child is stillborn, yet permit the action where the child survives birth but only for a short period of time. See Werling v. Sandy, 17 Ohio St. 3d 45, 476 N.E.2d 1053 (1985). To illustrate the absurdity of this live-birth requirement adopted by the majority court here, one need only consider the following incisive hypothetical situation as set out in Werling:

. . . Suppose, for example, viable unborn twins suffered simultaneously the same prenatal injury of which one died before and the other after birth. Shall there be a cause of action for the death of one and not for that of the other? Surely logic requires recognition of causes of action for the deaths of both, or for neither.

Id., 476 N.E.2d at 1055 (citation omitted).

The rule our majority court adopts today, denying a cause of action for a stillbirth child, was also thoroughly criticized in Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976), as follows:

[I]f prenatal injury is wrongfully inflicted there is no perceptible reason why there should be a legally recognized difference between a death that occurs immediately before birth and one that occurs immediately after .... [I]t makes poor sense to sanction a legal doctrine that enables the tortfeasor whose deed brings about a stillbirth to escape liability but that renders one whose wrongdoing is less severe answerable in a wrongful death or other negligence action merely because his victim survives birth.

Id., 365 A.2d at 753. See also Hopkins v. McBane, 359 N.W.2d 862 (N.D. 1984).

Besides the illogical results that can ensue from adopting the minority rule which bars recovery for a stillborn child but not one born alive, the majority opinion also gives no more than lip service to the remedial nature of Arkansas’s wrongful death statute. For example, North Dakota, whose wrongful death statute is almost identical to Arkansas’s, has held that its statute’s purpose is to provide a right of action against one whose tortious conduct causes the death of another, and to the extent that it might be argued an ambiguity exists under the statute, the law should be construed liberally to accomplish its objective. Id. at 865. That being so, the wrongful death statute authorizes an action against one whose tortious conduct causes the death of a viable unborn child. See also O’Grady v. Brown, 654 S.W.2d 904, 910 (Mo. banc 1983) (court held the term “person” as used under Missouri’s wrongful death statute includes the human fetus en ventre sa mere, and further stated to hold otherwise would frustrate the remedial purpose for which the statute was intended).

The majority opinion permits this court to avoid its traditional judicial role, by suggesting the General Assembly should address the issues raised here concerning the state’s wrongful death statutes. Presumably, the General Assembly intended that the courts would construe the statute in a manner which would give effect to the statute’s purposes and objectives. See O’Grady, 654 S.W.2d at 911.

Finally, I would suggest that, in construing Arkansas’s wrongful death statute in the manner thirty-one other states have done is also consistent with the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973). There, the Court found the compelling point in the state’s legitimate interest of protecting potential life to be at viability, as the fetus, at that time, has the capability of meaningful life outside the mother’s womb. Applying the rationale in Roe, the wrongful death statute should be construed to include a viable fetus as a person entitled to protection. See Werling, 476 N.W.2d at 1056.

For the above reasons, I respectfully disagree with the majority court.

Corbin and Roaf, JJ., join this dissent.


author: David Newbern, Justice.

text:
    Dell Comer RUSHING, et al. v. Joseph H. MANN, Jr., and Lawanda (Mann) West
    95-487
    910 S.W.2d 672
    Supreme Court of Arkansas
    Opinion delivered November 20, 1995

      Overby Law Firm. P.A., by: Phillip E. Norvell and Thomas L. Overby, for appellants.

      Eldridge & Eldridge, P.A., by: John D. Eldridge, for appellees.
   David Newbern, Justice.

Andrew Comer died in 1951. In his will he devised 160 acres of land as follows: “I give and devise unto my niece, Elizabeth Swanson, for her life, with remainder at her death to Lester Mann for his life, and then unto his bodily heirs, or if no bodily heirs, then to Claude Mann in fee simple.” Claude Mann died in 1954. Lester Mann died without bodily heirs in 1989. Elizabeth Swanson died in 1992. Claude Mann’s heirs, the appellees, sued Andrew Comer’s heirs, the appellants, and asked for a declaratory judgment interpreting the devise and for a decree quieting title. The Chancellor awarded summary judgment to the Mann heirs. He held, attempting to ascertain Mr. Comer’s intent from the four corners of the will, that Claude Mann’s interest was a vested fee simple remainder subject to defeasance. As the defeasance did not occur, the Mann heirs prevailed.

The Comer heirs contend Claude Mann’s interest was a contingent remainder alternative to the one devised to the bodily heirs of Lester Mann. They say the land comes to them due to their reversionary interest because neither contingent remainder vested. We agree with their argument and reverse.

Had the devise been to Elizabeth Swanson for life with the remainder to Lester Mann worded, “to Lester Mann and the heirs of his body,” Lester Mann would have had a fee simple absolute subject to the life estate in Ms. Swanson. Pickens v. Black, 318 Ark. 474, 885 S.W.2d 872 (1994); Bowlin v. Vinsant, 186 Ark. 740, 55 S.W.2d 927 (1933). In view, however, of the fact that the devise to Lester Mann was, “for his life, and then unto his bodily heirs,” it is clear that the Pickens and Bowlin cases do not apply for the intent of the devisor was to limit Lester Mann’s interest to that of a life estate.

A remainder which is dependent upon a contingency which may not arise or which is granted to a person not in existence and who may not come into existence is contingent. See Fletcher v. Hurdle, 259 Ark. 640, 536 S.W.2d 109 (1976); Wise v. Craig, 216 Ark. 144, 226 S.W.2d 347 (1949). Thus, neither Claude Mann nor the bodily heirs of Lester Mann can be said to have had a vested remainder. As Lester Mann died without issue but Claude Mann died with heirs who could succeed to the “fee simple” granted to him in remainder, the question becomes whether Claude Mann’s heirs have an interest which vested despite the fact that Claude Mann did not survive the life tenant, Elizabeth Swanson.

The Comer heirs argue Claude Mann’s heirs have no interest because the Fletcher and Wise cases hold that an alternative contingent remainderman, such as Claude Mann, takes no interest if he does not survive the preceding life tenant.

The cases cited in response by the Mann heirs are Cox v. Danehower, 211 Ark. 696, 202 S.W.2d 200 (1947), and Bell v. Gentry, 141 Ark. 484, 218 S.W. 194 (1920). In the Bell case, the devise of the testator was A to his widow for life or until her remarriage and upon her decease or remarriage to “my children and their bodily heirs in the following manner: . . .” Thereafter the testator named his two children and specified the lands each was to receive. We held that, upon the death of the widow, each child took the land specified in fee, the remainder having been fixed “when the remainder was cast.” In an obiter dictum we said, “Had they [the children] or either of them died in the lifetime of their mother, their bodily heirs would have taken the fee; and these bodily heirs would have taken as devisees under the will . . . they being special, or bodily heirs, in esse, when the event happened upon which the remainder was to vest, that is the death of the testator’s widow.”

In the Cox case, the testator devised land to his son, Joseph Cox for life and at death to the heirs of his body, but if Joseph Cox should die without bodily heirs, then to “brothers and sisters and the heirs of their bodies.” Joseph Cox died without bodily heirs, and two of his siblings predeceased him. The heirs of the siblings living at the time of Joseph Cox’s death claimed the heirs of the siblings who predeceased Joseph Cox had no interest in the land. On the basis of the obiter in Bell v. Gentry we held the heirs of the siblings who had predeceased Joseph Cox took their parents’ shares per stirpes.

To the extent that Bell v. Gentry may have been applicable in the Cox case, it was because the heirs seeking to recover were “fixed,” and they were “special heirs” rather than the general ones who claim pursuant to the grant to Claude Mann in this case. Here we have nothing more than the “general” heirs of Claude Mann seeking to recover an interest which, according to Fletcher v. Hurdle, supra, and Wise v. Craig, supra, did not vest because the person to whom a contingent interest in the land was devised predeceased the life tenant.

Cox v. Danehower is at least ostensibly distinguishable on the basis that, as in Bell v. Gentry, the heirs were “special” and in esse rather than “general” heirs yet to be determined. We distinguished the Fletcher case and the Cox case in Pickens v. Black, supra, on the basis of the specific language of the grants.

While it was appropriate for the Chancellor to look to the four corners of the will to determine the intention of the testator, as we said in the Fletcher case, the purpose of doing so must be to ascertain not what was in the mind of the testator but what his words meant. The words of the testator must be tested against the cases which have expressed rules of property such as the one found in the Fletcher and Wise cases. The Chancellor properly declined to consider testimony about the intent of the testator.

Our holding is that Claude Mann’s contingent remainder ceased to exist when he predeceased Elizabeth Swanson. We remand the case to the Chancellor for an order consistent with this opinion.

Reversed and remanded.