author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    ARNOLD & ARNOLD v. Gregory L. WILLIAMS, Larry R. Williams and Karen A. Williams and Gregory L. WILLIAMS, Larry R. Williams and Karen A. Williams v. ARNOLD & ARNOLD
    92-1271
    870 S.W.2d 365
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994
    [Rehearing denied February 28, 1994.]

      Gregory L. Williams, Pro se.

      Larry R. Williams, Pro se.

      Karen A. Williams, Pro se.

      Atchley, Russel, Waldrop & Hlavinka, L.L.P., by: Jeffery C. Lewis and Victor Hlavinka, for appellees.

      Corbin, J., not participating

   Robert H. Dudley, Justice.

This is a consolidated appeal of two cases from the Chancery Court of Howard County. Both cases arise from a dispute between a law firm, Arnold and Arnold, and its former clients, the Williamses. Before these cases were filed, Larry and Karen Williams employed the law firm to represent them in five lawsuits unrelated to this appeal. Arnold and Arnold apparently wanted some assurance its fees would be paid, and, therefore, Gregory Williams, the son of appellants Larry and Karen Williams, conveyed real property by warranty deed to the law firm as security for the services to be rendered in the five cases. Arnold and Arnold subsequently represented Larry and Karen Williams in the appeal of a suit they had brought against some employees of the Farmers Home Administration, see Williams v. Lyng, No. 85-4124 (W.D. Ark. June 5, 1989), aff’d, 902 F.2d 1573 (8th Cir. 1990), cert. denied, 110 S. Ct. 3282 (1990); in the retrial of a condemnation case, see Williams v. Arkansas State Highway Comm’n, 21 Ark. App. 98, 730 S.W.2d 245 (1987), and an unpublished opinion dated June 12, 1991, Williams v. Arkansas State Highway Comm’n; in a Farmers Home Administration foreclosure case, see United States v. Williams, No. 87-4014 (W.D. Ark. Jan 5, 1990), appeal dismissed, No. 90-2390 WA (8th Cir. 1991); and in a Chapter 12 bankruptcy proceeding. By June 1990, the amount of the fees owing had become a matter of dispute between the parties. Arnold and Arnold terminated its representation of the Williamses because it alleged that at that time the Williamses refused to pay any of the $37,000 fees and expenses owed and that the Williamses had represented the land as being worth $100,000 when, in fact, an appraisal showed it to be worth only $18,000. After the dispute arose, Gregory Williams filed a notice of lis pendens against the land he had conveyed to Arnold and Arnold as security for the fees.

On August 29, 1990, Arnold and Arnold, a partnership, filed suit in Howard County Chancery Court against the three Williamses. The complaint asked the court to remove the cloud on the title to the real estate, for damages as a result of the slander of title occasioned by the filing of the lis pendens, for fees and expenses for its legal work, and for an order of the court selling the real estate so that the amount due the law firm might be satisfied, and the surplus, if any, to go to Gregory Wiliams. This suit was assigned case No. E-90-127 and is the first of the two cases involved in this consolidated appeal. It will be referred to as the Arnold suit. On September 24, 1990, the chancellor granted the Williamses an extension until October 13,1990 to file an answer. On October 15, 1990, two days after the deadline, the Williamses filed an answer.

On that same day, October 15, 1990, the Williamses filed a separate suit against Arnold and Arnold in the same chancery court. Their pro se complaint alleged breach of contract, excessive fees, and failure to adequately perform legal services and asked for damages and to have the warranty deed set aside. This suit, referred to as the Williams suit, was assigned case No. E-90-156. On November 9, 1990, the law firm filed an answer and a counterclaim in this suit. The counterclaim was virtually identical to the complaint the law firm had filed in its original suit, the Arnold suit, and the prayer asked for the same relief. The law firm perfected service on its counterclaim against the three Williamses on November 7, 1990. The Williamses did not file a timely answer to the counterclaim.

On February 21, 1991, Arnold and Arnold gave the Williamses notice that it intended to take a default judgment on the counterclaim. On February 25, 1991, the Williamses filed a response to the motion for default judgment and, in addition, filed an answer to the counterclaim. This answer was filed over three and one-half months after service of the counterclaim on the Williamses.

Chancellor Ted Capehart originally presided over both of these cases, but, upon motion of the Williamses, disqualified. Chancellor Gayle Ford was assigned to try the cases as a chancellor on exchange. On June 22, 1991, Steve Clark entered his appearance on behalf of the Williamses. Among the numerous pleadings and motions filed, the Williamses asked that the two cases be consolidated because both cases involved the same matters of fact and law. They also asked that the consolidated cases be transferred to circuit court. They additionally moved to dismiss their claim of malpractice against Arnold and Arnold, and Gregory Williams pleaded that he had released the lis pendens. After more than four hundred pages of pleadings and exhibits had been filed, the assigned chancellor, on December 16, 1991, issued a letter opinion setting out findings of fact and conclusions of law. Those findings and conclusions were entered as a formal order on April 10, 1992.

That order provided that the Williamses’ untimely answer to Arnold and Arnold’s counterclaim filed in the Williams suit should be struck, and that the Williamses’ answer that had been filed in the Arnold suit should also be struck. In it, the chancellor granted Arnold and Arnold a default judgment as to liability on its counterclaim and, pursuant to ARCP Rule 55(d), set a hearing at a future date to determine the amount of damages, or fees, due the law firm. The chancellor granted the Williamses’ motion to consolidate the two cases, but did not rule on some other pending motions because “the above rulings obviate the necessity of deciding” those matters. The Williamses appeal from the order. We affirm the rulings in both cases.

Procedurally, the record does not clearly show a determination of the counts set out in the Williamses’ complaint, nor does it show any disposition of the real estate issues. It does show that the amount of damages has not yet been determined. Thus, the order appealed from is not a final judgment. However, Rule (2)(a)(4) of the Rules of Appellate Procedure expressly provides for an appeal from “[a]n order which strikes out an answer, or any part of an answer,” and we have construed that rule to authorize an appeal when an answer has been stricken, even if it is not a final judgment. Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991). That case further provides that, in deciding the appeal, we should rule on all the issues dependent upon the stricken answer. Consequently, we address the merits of the appeal regarding the stricken answers and the default judgment.

The Williamses’ first two assignments of error involve Arnold & Arnold’s counterclaim to the Williams suit. Their first assignment is that the chancellor erred in ruling that Arnold and Arnold’s counterclaim was properly served upon them. The chancellor found that each of the Williamses signed the complaint, they did not include an address for service of subsequent pleadings, and the counterclaim was mailed to them at their last known address. From those facts, the chancellor concluded that Arnold and Arnold had complied with ARCP Rule 5 and that the Williamses had been properly served. The Williamses argue, pursuant to provisions of ARCP Rule 4, service was not had on Gregory and Karen Williams because the counterclaim was not mailed to them by restricted delivery. They also argue that because Larry Williams was incarcerated in a federal penitentiary from October 15, 1990 until February 15, 1991, the provisions of ARCP Rule 4 require service upon the superintendent of the institution, and that was not done. It is without dispute that Arnold and Arnold did not comply with the requirements of ARCP Rule 4, but that is immaterial since that rule governs personal service of the summons and complaint. It does not govern the service of a counterclaim. Rule 5 governs the service of all pleadings filed subsequent to the complaint, and that is the rule with which Arnold and Arnold complied. The chancellor was eminently correct in ruling that service was perfected pursuant to Rule 5.

In their second assignment of error, the Williamses argue that the chancellor erred striking their answer to the counterclaim and in granting a default judgment against them. The chancellor’s finding of fact and ruling on the law was as follows:

The Williamses did not file an answer until over three months from the filing and mailing of the counterclaim. The counterclaim was mailed to the three defendants at 301 North Seventh Street, Nashville, Arkansas, 71852, which is the address of some, if not all of the defendants.
The Williamses made no showing of unavoidable casualty or delay. Their answer to the counterclaim was untimely, and therefore stricken.

After striking the answer, the chancellor granted the default judgment as to liability.

It is well established that the standard of review of the granting of a default judgment is whether the trial court abused its discretion. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992). In their brief in this court, the Williamses first contend that Chancellor Ford abused his discretion in striking their untimely answer to the counterclaim because Chancellor Capehart, the original presiding judge, stayed the proceedings, and, as a result, they were not required to file an answer until the stay was lifted. The argument is wholly without merit. We summarily resolve this argument by stating that the record does not reflect that a stay order was issued. In oral argument of this appeal, Karen Williams, one of the pro se appellants, stated that the basis of the argument was that someone had phoned Judge Capehart, an acquaintance, about a stay, but she admitted that he did not execute such an order. Indeed, he recused from the cases on the Williamses’ motion and asked to have another judge assigned.

In oral argument, Gregory Williams, in a statement that is somewhat inconsistent with the foregoing argument, stated that they did not file an answer to the counterclaim within the time allowed because he read the rules of civil procedure to require service under ARCP Rule 4, rather than Rule 5. As a result, they did not think service on the counterclaim had been perfected and, therefore, an answer was not necessary. They were mistaken in their interpretation of the rules of civil procedure. In an analogous holding involving a pro se litigant we said, “[I]f merely declaring ignorance of the rules of procedure were enough to excuse lack of compliance, it would be just as well to have no rules since an appellant could simply bypass the rules by claiming a lack of knowledge.” Garner v. State, 293 Ark. 309, 310, 737 S.W.2d 637, 638 (1987). All litigants, including those who proceed pro se, must conform to the rules of procedure, or else demonstrate good cause for not doing so. Key v. State, 297 Ark. 111, 759 S.W.2d 567 (1988).

Under this same assignment of error, the Williamses additionally argue that the chancellor abused his discretion in striking the answer to the counterclaim because the chancery court was without jurisdiction over the counterclaim because Larry Williams was in prison and counsel was not appointed for him pursuant to ARCP Rule 17(c). We might summarily dismiss the argument because the record does not contain evidence of the dates of Larry Williams’s incarceration, but, even assuming the general allegation is true, we affirm the ruling. The record reflects that Steve Clark, then a member of the bar, entered his appearance for the Williamses on June 24, 1991. The record does not show that he was discharged as counsel before the default judgment was entered. In fact, the record reflects thát Clark still represented the Williamses at the time of the chancellor’s letter opinion. The chancellor gave Clark notice of the hearings on the motion, and the subsequent letter opinion, dated December 10, 1991, was addressed to Steve Clark as attorney for the Williamses. On May 1,1992, long after the default judgment had been entered, the Williamses filed a motion for a stay in these cases, and in it they state, in part: “Steve Clark is attorney of record in the referenced matters.” The records of this court reflect that Steve Clark was a member of the bar until May 4, 1992, when he surrendered his license. Thus, Larry Williams was represented by counsel at the time the answers were stricken and at the time the default judgment was granted, and, consequently, there was compliance with the rule. Additionally, even if there had not been compliance with the rule, the judgment would not have been void, but merely voidable. Zardin v. Terry, 275 Ark. 452, 631 S.W.2d 452 (1982). In sum, the Williamses have not shown that the chancellor abused his discretion in striking the answer to the counterclaim, and they have not shown any reason that the chancellor abused his discretion in granting the default judgment after the answer to the counterclaim was struck.

In their third assignment of error, the Williamses argue that the chancellor abused his discretion in striking their answer to the Arnold complaint, case number E-90-127. In striking this answer, the chancellor stated: “The Williamses got exactly what they asked for, that is, an extension until October 13, 1990, yet an answer was not filed until two days later.” The Williamses contend that since the 13th of October was a Saturday, when the chancery clerk’s office was closed, the filing of their answer on the following Monday was timely. See ARCP Rule 6(a). It is an argument we do not reach; for even if it should be meritorious, it would make no difference in the outcome of this case, the Arnold case, because it is barred by the doctrine of claim preclusion.

The allegations contained in the complaint in this case are virtually identical to the allegations contained in the counterclaim. The default judgment on the counterclaim is now affirmed. Arnold and Arnold pleaded res judicata and, in their brief in support of their motion in the trial court to consolidate the two cases, the Williamses stated: “To try or bring to hearing one case before the other could result in res judicata which may constitute an absolute bar to a subsequent action involving the same claim, demand or cause.” This is a very unusual appeal. It is an appeal from two consolidated chancery court cases. We review such cases de novo and can apply the appropriate remedy in this court. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). Since the complaint in this case, the Arnold case, is virtually identical to the allegations contained in the counterclaim in the other case, the Williams case, and since a default judgment was granted on the counterclaim, and is now affirmed, the claims contained in this complaint, the Arnold complaint, are barred under the doctrine of claim preclusion. See Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). Thus, it does not matter whether an answer was timely filed.

In their last assignment of error, the Williamses contend that they inadvertently filed their complaint in chancery court in E-90-156 and the case should be transferred to circuit court. This is the case in which the default judgment is now affirmed. We decline to address the issue, as it does not procedurally come within the purview of this type of interlocutory appeal. We accept this appeal from a judgment that is not final only to address those matters that are related to the striking of the answer. See Ark. R. App. P. (2)(a)(4) and Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991). This is an interlocutory appeal, and the case must be remanded for the assessment of damages on the counterclaim. We leave the issue of transfer of some or part of the allegations of the complaint to the chancellor.

Affirmed and remanded.

Hays and Brown, JJ., dissent.

Steele Hays, Justice,

dissenting. Today’s decision narrowly interprets the rules of civil procedure and completely ignores the 1990 Amendment to ARCP Rule 55 which adopted a more liberal standard regarding default judgments to reflect a preference for deciding cases on the merits rather than on technicalities. Because I believe the trial court erred in striking the answers in both cases and in granting a default judgment in Case No. E-90-156,1 dissent to the Court’s holding.

The Williamses argue the trial court erred in striking their answer in Case No. E-90-127. Although Arnold & Arnold originally filed its complaint on August 29, 1990, the chancellor granted the Williamses’ motion for an extension to file their response until October 13, 1990. October 13 fell on Saturday and the Williamses filed the response on Monday, October 15. However, the trial court concluded the answer was untimely since it was filed two days beyond the allowed extension. The Williamses contend that since the 13th of October was a Saturday, when the clerk’s office was closed, the filing of their response on the following Monday was timely, citing ARCP Rule 6(a). ARCP Rule 6 provides in relevant part:

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 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.

Although this rule may have been drafted for situations in which a party is given a certain number of days (30, 60, 90, etc.), I believe the principles outlined in the rule also apply where the order specifies a particular date, and certainly that rationale should apply where default is the issue. Consequently, I would hold that the trial court abused its discretion in striking the answer as untimely given the particular circumstances.

In addition, the Williamses allege the trial court erred in granting a default judgment in Case No. E-90-156 due to their failure to timely answer the counterclaim. ARCP Rule 55(a) states: “[w]hen a party against whom a judgment for affirmative relief is sought has failed to appear or otherwise defend as provided by these rules, judgment by default may be entered by the court.” (Emphasis supplied.) In determining whether the trial court abused its discretion, the appellate court must consider the nature of the mistake causing a failure to respond on a case by case basis. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992). (Emphasis supplied.)

In the instant cáse, Arnold & Arnold filed its answer and counterclaim in Case No. E-90-156 on November 9, 1990, and filed a motion for default judgment on February 21, 1991. Although the Williamses had not answered the counterclaim, they had previously filed an answer to the complaint in Case No. E-90-127 which involved the same causes of action. Further, they had filed a motion for continuance in the original action (E-90-127) only nine days after Arnold & Arnold filed its answer and counterclaim in E-90-156. The Williamses also maintain they were not required to respond to the counterclaim since the trial court stayed all matters relating to the proceedings. The record does not contain an order granting the motion for continuance, but it does reflect that the trial, which was originally scheduled for December 12, 1990, was postponed. In addition, the Williamses alleged that Larry Williams was incarcerated in a federal penitentiary from October 15, 1990, until February 15, 1991. The Williamses, in fact, filed their answer in E-90-156 only ten days after Larry Williams was allegedly released from incarceration and only four days after the motion for default judgment had been filed.

It is significant that Case No. E-90-127 and Case No. E-90-156 are essentially a single action. This action consists of the original action by Arnold & Arnold (E-90-127), an answer by the Williamses (Oct. 15, 1990), a “counterclaim” by the Williamses (filed as E-90-156), and an answer to the Williamses’ action (November 9, 1990). Had the Williamses simply filed a counterclaim in E-90-127 rather than filing the separate action in E-90-156, Arnold & Arnold would not have filed the counterclaim which resulted in the default judgment. Further, the Williamses’ answer in the original action (E-90-127) is essentially an answer to the counterclaim by Arnold & Arnold in E-90-156.

Consequently, this case is comparable to Cammack v. Chalmers, 284 Ark. 164, 680 S.W.2d 689 (1984), where we sustained the trial court’s denial of appellants’ (plaintiffs below) motion for a default judgment. The appellees (defendants below) fiied a timely special appearance and moved for dismissal. The trial court requested the opposing litigants to submit a proposed order. After some two and one-half months (on November 17, 1980) the trial court denied the motion and gave appellees twenty-five days to answer. That order was not received by appellees but on February 4, 1981, counsel for appellants notified counsel for appellees the order had been entered. On April 10 appellees filed a responsive pleading and appellants maintained they were entitled to a default judgment. In affirming the trial court’s refusal to grant a default judgment, we cited language of Ark. R. Civ. P. 55 that a judgment by default may be granted when a party “fails to appear or otherwise defend,” pointing out that these appellees defended when they filed their motion to dismiss.

Further, this case has notable similarities to Sparks v. Shepherd, 255 Ark. 969, 504 S.W.2d 716 (1974), where we affirmed a trial court’s denial of appellants’ motion for default judgment where appellees had failed to answer a counterclaim. In a land title dispute, the appellees originally filed an action which sought to enjoin the appellants from trespassing. The appellants filed an answer and a counterclaim which challenged the appellees’ chain of title. After filing an answer to the counterclaim, the appellees requested and were granted a nonsuit. However, the issue of the counterclaim remained before the trial court. Shortly after the dismissal without prejudice, the appellees filed a new cause of action against the appellants. Once again, the appellants filed an answer which contained a counterclaim. This time, the appellees failed to answer the counterclaim within the statutory period for filing a reply. The chancellor denied the appellants’ motion for default judgment and held that the pleading filed by the appellants was more in the nature of an answer than of a counterclaim and did not require a response by the appellees. In sustaining the action of the trial court, we found justification for a finding of excusable neglect or “other just cause” in the circumstances prevailing because the very issues raised by the appellants were already an issue in the first case by virtue of the pleadings then extant, i.e., the counterclaim and reply thereto. Also, in Easley v. Inglis, 233 Ark. 589, 346 S.W.2d 206 (1961), we said that if an answer to a “counterclaim” had been stricken as untimely, the refusal to grant a default judgment would not have been error, because testimony of the same issues would necessarily be heard on the issues made by the pleadings that were timely filed. See Also Jetton v. Fawcett, 264 Ark. 69, 568 S.W.2d 42 (1978).

We have often said that default judgments are not favored in the law and a default judgment may be a harsh and drastic result affecting the substantial rights of the parties. Maple Leaf Canvas, Inc. v. Rogers, 311 Ark. 171, 842 S.W.2d 22 (1992). We have said repeatedly that default judgments should be avoided when possible. Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987). In furtherance of that view, the 1990 Amendment to ARCP Rule 55 adopted a more liberal standard regarding default judgments and represents a preference for deciding cases on the merits rather than on technicalities. Divelbliss, supra; See also Reporter’s Note to the 1990 Amendment. Under the current rule, a default judgment may be set aside on the basis of mistake, inadvertence, surprise, excusable neglect, or any other reason justifying relief from the operation of the judgment. ARCP Rule 55(c). Under the prior rule, a default judgment could be set aside only upon a showing of “excusable neglect, unavoidable casualty, or other just cause.” Id.

The 1990 Amendment adopts the language found in the Federal Rules of Civil Procedure regarding mistake, inadvertence, and surprise. In fact, the Reporter’s Note to the 1990 Amendment states:

The standard in amended Rule 55(c) for setting aside a default is taken from Federal Rule Civil Procedure 60(b), which is made applicable in the default judgment context by Federal Rule 55(c), and should be interpreted in accordance with federal case law.

Consequently, we should examine federal case law in order to interpret the mistake, surprise, and inadvertence language found in the amended rule. The United States Court of Appeals for the Sixth Circuit has stated:

Where default results from an honest mistake “rather than willful misconduct, carelessness or negligence” there is especial need to apply [Fed. R. Civ. R] Rule 60(b) liberally. .

United Coin Meter v. Seaboard Coastline R.R., 705 F.2d 839 (6th Cir. 1983). In addition, the Fifth Circuit has reversed a district court’s dismissal with prejudice due to the failure of counsel to appear at a scheduled trial. N.L.R.B. v. B.D. Holt Company, 516 F.2d 505 (5th Cir. 1975). In reversing, the circuit court concluded that the counsel failed to appear because a “too busy” lawyer and a “too busy” Judge had a series of misunderstandings. Id. The court noted the misunderstandings lacked any suggestion of “contumacious indifference to the Court of the kind we generally regard as requisite to the use of this severe action.” Id.

Finally, “[t]he party seeking to have the judgment set aside must demonstrate a meritorious defense to the action.” ARCP Rule 55(c); See also. Hubbard v. The Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993). The court has defined meritorious defense as:

[E]vidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.

RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). The Williamses presented sufficient evidence to establish that Arnold & Arnold agreed to represent Larry Williams in four cases until the appeals were completed and that Arnold & Arnold withdrew from the representation prior to completion. Proof of a breach of contract is a valid defense to the counterclaim for quiet title; therefore, the evidence is sufficient to justify a determination of the issue by a trier of fact.

Although the Williamses had not responded to the counterclaim in E-90-156, they continued to respond in E-90-127 which involved the same issues. Further, the Williamses acted with promptness in responding to the motion for default judgment and have demonstrated a meritorious defense to the action. See Morrissee v. Defensive Instruments, Inc., 16 Fed. R. Serv. 2d 358 (1972). Based upon these factors and those mentioned above, I am persuaded their failure to file a timely answer is attributable to mistake or inadvertence. Accordingly, I would find the granting of the default judgment and striking of the Williamses’ answer in Case No. E-90-156 to be an abuse of discretion.

Brown, J., joins in this dissent.


source: Caselaw Access Project

author: David Newbern, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Dr. Robert BURNETT v. Scott FOWLER
    93-681
    869 S.W.2d 694
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994
    [Rehearing denied March 7, 1994.]

      Atchley, Russell, Waldrop & Hlavinka, L.L.P., by: Victor Hlvanika and Jeffery C. Lewis, for appellant.

      Edmund M. Thomas and Compton, Prewitt, Thomas & Hickey, by: Robert C. Compton, for appellee.

      Corbin, J., not participating.

   David Newbern, Justice.

Scott Fowler, the appellee, sued Dr. Robert Burnett, the appellant, for medical malpractice. A jury returned a verdict in favor of Dr. Burnett. The question before us is whether the Trial Court abused his discretion in granting a new trial. We hold there was no abuse of discretion and affirm.

Mr. Fowler broke an ankle playing racquetball. The ankle was repaired using a temporary metal plate and four metal screws to facilitate healing. Dr. Burnett supervised administration of a general anesthetic when Mr. Fowler returned to the hospital to have the metal pieces removed. After the surgery Mr. Fowler apparently awakened and was alert for a time, but then he went back to sleep. There was conflicting evidence about whether, during the subsequent time, Mr. Fowler showed signs of losing the use of his right arm and leg. His mother, who was with him during the recovery period, said he suffered seizures. He vomited and was incontinent. Dr. Burnett continuously monitored Mr. Fowler’s condition.

At one point Dr. Burnett took Mr. Fowler’s father aside and asked if he knew if Scott Fowler had taken any drugs about which the doctor might not be aware. The elder Mr. Fowler said, “Scott smokes marijuana occasionally, and he may have smoked marijuana the morning of the surgery.”

After further tests, a neurologist was called and a CT scan performed, revealing bleeding in the area of the brain. A neurosurgeon opened the skull and removed the blood, and testimony showed Mr. Fowler was left with some mental and physical disabilities.

The issue before the jury was whether Dr. Burnett acted properly. It was alleged that he took too long to discover the brain problem. There was expert testimony on both sides of that issue. There was no contention that the evidence of marijuana usage had any effect on Mr. Fowler’s physical injury allegedly suffered as a result of delay in proper diagnosis and treatment.

Before the trial, Mr. Fowler filed a written motion in limine to prevent the introduction of records of a rehabilitation program Mr. Fowler had attended which showed his enrollment in a “substance abuse program.” The motion closed with these words:

The Plaintiff asks that this Motion in Limine be granted and that the Defendant be directed not to in any way refer to “alcohol and marijuana abuse” on the part of the Plaintiff, and that any records that may be introduced referring to any such “alcohol and marijuana abuse” be stricken and not presented to the jury.

The record does not show a ruling on the written motion, but the parties entered an “Agreed Statement of Evidence When No Report Was Made.” The statement says that, in a discussion of the motion in limine, Dr. Burnett’s counsel said he did not plan to introduce evidence of the rehabilitation substance abuse program without first seeking permission of the Court. Mr. Fowler’s counsel orally expanded the motion to include any hospital records about the conversation between Dr. Burnett and the elder Mr. Fowler concerning marijuana usage. The Trial Court orally overruled the motion with respect to the hospital records.

Mr. Fowler’s counsel asked the jurors during voir dire if they could be fair and impartial despite evidence that Mr. Fowler had occasionally used marijuana.

After Mr. Fowler’s counsel had completed his direct examination of Mr. Fowler, Dr. Burnett’s counsel approached the bench and said he intended to introduce evidence of the rehabilitation substance abuse program. Mr. Fowler’s counsel asked to continue his direct examination and asked if it were on record that his motion in limine had been overruled. The Trial Court assured him it was overruled on the record. Mr. Fowler then testified he had used marijuana about five times a week.

Thereafter, there were occasional references to the marijuana usage. During Mr. Fowler’s case in chief, Dr. Burnett testified he had no evidence that “any drug” caused Mr. Fowler’s problem. Mr. Marsh, an economics consultant called by Mr. Fowler to testify about his economic prospects before and after the injury testified on cross-examination that he had known nothing about Mr. Fowler’s drug use, and that it might or might not have a negative impact on earning capacity and would have a negative effect on employability.

Dr. Derrer, an expert witness for Dr. Burnett, testified that knowledge of Mr. Fowler’s drug usage would increase the need for conducting a toxicity screen but that marijuana was no part either of Mr. Fowler’s problem or the approach to the problem.

After the verdict was returned in favor of Dr. Burnett, Mr. Fowler moved for a new trial. The Trial Court granted the motion and said that marijuana usage on the part of Mr. Fowler had not proven to be relevant to any issue on trial, and that even if relevant it was so prejudicial-that it should have been excluded, citing Ark. R. Evid. 403.

1. Waiver

Dr. Burnett argues that Mr. Fowler waived the objection made in the motion in limine by being the first to introduce the evidence in question and by not objecting to that evidence when it was further introduced by Dr. Burnett.

We have held very clearly that a motion in limine is sufficient to call attention to a potential error, and that one who has made such a motion need not object further. Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981). See also Delta School of Commerce, Inc. v. Wood, 298 Ark. 195, 766 S.W.2d 424 (1989); Schichtl v. Slack, 293 Ark. 281, 737 S.W.2d 628 (1987).

While those cases answer one aspect of the argument, they do not address the other. May a party whose motion in limine has been overruled be the first to broach the subject of the motion during jury voir dire or examination of a witness without waiving the error?

Dr. Burnett argues that one who introduces incompetent or improper evidence cannot object to the admission of evidence from the adverse party relating to the same matter, citing Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992); Transit Homes v. Bellamy, 282 Ark. 453, 671 S.W.2d 153; and Eaves v. Lamb, 209 Ark. 987, 193 S.W.2d 328 (1946). The distinction between this case and those is that here the evidence had, at the time it was introduced by Mr. Fowler, been held not improper by the Trial Court. We see no reason why, once the matter of admissibility has been settled, either party may not use the evidence in question.

2. Relevancy

Although we need not rule on the question, we tend to disagree with the Trial Court’s statement, in his ruling on the motion for a new trial, that the evidence of Mr. Fowler’s use of marijuana was irrelevant. Mr. Fowler was seeking damages based, in part, upon his financial future which included his employability and life expectancy. There was testimony that he could not perform the kind of work he previously did in his family’s business. There was also some allusion to the offer, prior to the injury, of a job with another company which would have paid him over $30,000 a year and the possibility that such offers would no longer come to him.

In Biddle v. Riley, 118 Ark. 206, 176 S.W. 134 (1915), we noted that, if it is limited to the capacity to earn a living, and not introduced just to bolster the plaintiff’s credibility as a witness, evidence of “moral character, as well as .. . habits of sobriety and industry” could be presented to the jury “for the purpose of drawing a picture ... of the earning capacity of which . . . [the plaintiff] had been permanently deprived by the negligent acts which caused his injury.” In that case, the evidence produced was favorable to the plaintiff.

In Oxford v. Hamilton, 297 Ark. 512, 763 S.W.2d 83 (1989), however, we dealt with a case in which a victim of an automobile accident sought damages based on loss of future earnings and earning capacity. Evidence of his alcoholism was admitted, and we said:

The Trial Court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice. Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). Given the fact that evidence of the appellant’s habits was useful and even necessary to assist the jury in determining his life expectancy, we find no abuse of discretion. See Pearce v. Fletcher, 74 N.C. App. 543, 328 S.E.2d 889 (1985).

3. Abuse of discretion

Arkansas Rules of Evidence 403 allows a ruling that evidence is inadmissible, even if it be relevant, if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ...” Before the trial, the Trial Court ruled the evidence of Mr. Fowler’s marijuana use was not to be excluded. After the trial he ruled that it should have been excluded.

Just as it is within the Trial Court’s discretion to decide pursuant to Rule 403 that evidence, though relevant, is to be excluded because it is unfairly prejudicial, Simpson v. Hurt, supra; Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988), it is within the Trial Court’s discretion to grant a new trial on the basis of an “error of law occurring at the trial and objected to by the party making the application.” Ark. R. Civ. R 59(a)(8).

To reverse the decision granting or denying a new trial, it must be shown that there was an abuse of the Trial Court’s discretion. Hamilton v. Russell, 307 Ark. 478, 821 S.W.2d 35 (1991); Drope v. Owens, 298 Ark. 69, 765 S.W.2d 8 (1969). A showing of abuse is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988). Dr. Burnett has not convinced us that the granting of a new trial in these circumstances was an abuse of discretion, and that is the standard we apply.

The Simpson, Oxford, and Biddle cases cited by Dr. Burnett on this point are ones in which we have approved the admission of evidence as an exercise of a trial court’s discretion. They involve personal habits such as alcoholism and the propensity toward swearing. None of them involves admission of a criminal offense such as possession of marijuana. See Ark. Code Ann. §§ 5-64-215 and 5-64-401 (Repl. 1993)

4. Conclusion

We know of no requirement that a judge decide a motion in limine at the time it is made or even at the instant a ruling is sought during the trial. The Trial Court in this case may well have been on the proper track of waiting to rule until the matters of relevancy and prejudicial effect were easier to ascertain. Once the issue came to a head, however, it would have been well for the Trial Court to have held a hearing out of the presence of the jury to determine all of the evidence Dr. Burnett intended to elicit with respect to that to which Mr. Fowler objected in the motion. By taking that additional step, a trial court may better position itself to rule on a motion in limine like the one made in this case.

We do not know just what the evidence will be when the case is retried. Our decision today is that, based on the manner of proceeding in the first trial the Trial Court did not abuse his discretion in granting a new trial. We make no binding decision on whether the prejudicial aspect of marijuana use outweighed its probative value. Again, that is a discretionary decision to be made based on the procedural posture of the parties and the facts known to the Trial Court when the issue arises.

Affirmed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I believe the court is extending the use and effect of a motion in limine far beyond its intended scope. See generally Schichtl v. Slack, 293 Ark. 281, 727 S.W.2d 628 (1987), Kitchens v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). It is one thing to hold that a motion in limine preserves an objection and quite another to extend it to the point of permitting the movant to affirmatively introduce such evidence. The latter course runs counter to the entrenched rule that one may not invite error and then complain. Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992); Eaves v. Lamb, 209 Ark. 987, 193 S.W.2d 328 (1946). And see Hays v. State, 260 Ark. 701, 597 S.W.2d 821 (Supplemental Opinion on denial of rehearing, Ark. App. 1980). I respectfully dissent.


author: David Newbern, Justice.

text:
    James KIMBLEY v. STATE of Arkansas
    CR 93-1157
    869 S.W.2d 692
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994

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

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

James Kimbley, the appellant, was charged with attempted rape and robbery of, and theft of property from, Brenda George Reed. By the same information he was charged with attempted sexual abuse in the first degree of Kimberly Lutz. He was convicted of the offenses against Ms. Reed, acquitted of the one against Ms. Lutz, and sentenced to fifty-five years imprisonment. He argues the Trial Court abused its discretion by refusing to grant his motion to sever the three charges for which he was convicted from the attempted sexual abuse charge. We find no error and affirm.

Ms. Lutz testified that on May 20, 1992, around 11:25 a.m. she was sitting on a park bench when Mr. Kimbley sat down beside her and they engaged in a conversation. As she got up to leave, Mr. Kimbley grabbed her. She struggled and got away. She informed U.S. Secret Service agents with whom she was acquainted what had happened. An agent took her to a police station to file a report.

Ms. Reed testified that on that same day she was attacked by Mr. Kimbley at around 11:50 a.m. as she entered her car at a parking lot several blocks away from the park where Ms. Lutz testified she had been accosted. Ms. Reed said Mr. Kimbley grabbed her, pushed her into her car, got on top of her, tore the crotch out of her panty hose, and tried to unzip his pants. She struggled with Mr. Kimbley and escaped from her car which Mr. Kimbley drove away.

After Ms. Lutz reported the incident to the police, she and three Secret Service agents drove around looking for her assailant. They saw Mr. Kimbley in a maroon Honda car, and Ms. Lutz told the agents he was the one who had assaulted her. Mr. Kimbley drove away as the agents approached. After a chase, during which Ms. Lutz and the agents heard radio reports of a maroon Honda car having been stolen from Ms. Reed, Mr. Kimbley was stopped in the car later identified as belonging to Ms. Reed.

Mr. Kimbley made appropriately timed motions to sever the charge of attempted sexual abuse of Ms. Lutz from the charges of offenses committed against Ms. Reed. His argument on appeal is that the Trial Court abused his discretion by refusing to sever in accordance with Ark. R. Crim. R 22.2(b) which, in part, provides:

(b) The court, on application ... of the defendant.. . shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.

In Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990), we were presented with a similar question. Mr. Brown was charged and convicted of two robberies. Both robberies were of convenience stores located in the same city, and they occurred about thirty minutes apart. Mr. Brown contended the Trial Court erred in denying his motion to sever the two robbery charges. We held that the proximity in time and place provided an ample basis for denial of severance under our previous cases interpreting Rule 22.2(b) because it was evidence of a single scheme or plan. We also noted that some of the State’s proof was pertinent to both robberies, i.e., “the officer who stopped appellant after the second robbery was reacting in part to a radio broadcast alerting the police to watch for the perpetrators of the first robbery.” Thus, in order for the police officer to explain why appellant was stopped, it was necessary to prove the earlier robbery.

In Henry v. State, 278 Ark. 478, 647 S.W.2d 419, cert. denied, 464 U.S. 835 (1983), the. defendant argued, pursuant to Rule 22.2(b), that the Trial Court abused its discretion in denying his motion to sever the offenses of hindering apprehension and accomplice to capital murder. We held that severance was not necessary to promote a fair determination of the defendant’s guilt or innocence. The facts necessary to prove the offenses would almost all be required in each trial if a severance were granted. Such evidence would be used in order to establish a plan, scheme, motive, or state of mind. In Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991), we upheld the Trial Court’s decision to deny the defendant’s motion for severance of a capital felony murder charge from an aggravated robbery charge because the two offenses were factually intertwined.

There was no abuse of discretion here. The acts alleged with respect to each victim occurred within a few blocks of each other about thirty minutes apart. The proximity in time and place provided an ample basis for denial of severance under our case law interpreting Rule 22.2. Evidence of the manner in which Mr. Kimbley was identified and caught in Ms. Reed’s car as the result of Ms. Lutz’s encounter with him would be admissible and probably necessary in both trials if the charges had been severed.

Affirmed.


text:
    STATE of Arkansas v. Chris Alvis YOUNG
    CR 93-538
    869 S.W.2d 691
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      James P. Massey, for appellant.
   David Newbern, Justice.

The State brings this appeal pursuant to Ark. R. Crim. P. 36.10(c) from the dismissal of burglary, aggravated robbery, theft, and battery charges against the appellee, Chris Alvis Young. The State alleges the Trial Court erred in ruling, as a matter of law, that two witnesses were accomplices of Mr. Young and thus that he could not be convicted on the basis of their testimony alone. See Ark. Code Ann. § 16-89-111(e)(1) (1987); Foster v. State, 290 Ark. 495, 720 S.W.2d 712 (1986), cert. denied, 482 U.S. 929 (1987). The Trial Court ruled the witnesses were accomplices because they had been given immunity from prosecution for offenses arising out of the events surrounding the charges against Mr. Young. We declare error.

The crimes with which Mr. Young was charged allegedly occurred during a break-in at the home of Jerry and Brenda Smith. Mr. Smith is a former business partner of Lynne Rice and Marilyn Hanson. The business relationship came to an unfriendly end, and Ms. Rice and Ms. Hanson hired Mr. Young to watch another person to see if he was doing business with Mr. Smith. They, accompanied by their counsel, went to the police and told of how Mr. Young had implicated himself in crimes committed against the Smiths. They said they had no idea Mr. Young would do such a thing. At the instance of their counsel they were given immunity. They agreed to stage a meeting with Mr. Young which resulted in his arrest. At the trial they then testified against Mr. Young.

After the State rested, the Trial Court granted a directed verdict in Mr. Young’s favor. The Trial Court’s order stated:

That in granting said motion, the Court found that as a matter of law that two immunized State witnesses, to-wit: Marilyn Hanson and Lynne Rice, were accomplices because they had been immunized and therefore the State had not presented sufficient corroborating evidence to make a prima facie case.

The issue is well settled. The fact that a witness has been granted immunity is not a basis to rule that the witness is an accomplice as a matter of law. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Johnson & Keeling v. State, 259 Ark. 773, 536 S.W.2d 704 (1976).

Error Declared.


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

text:
    Billy Wayne RHOADES v. STATE of Arkansas
    92-1217
    869 S.W.2d 698
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994
    [Supplemental Opinion on Denial of Rehearing March 14, 1994.]

      Thomas D. Deen, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.

      Corbin, J., not participating.

   Tom Glaze, Justice.

On December 13, 1991, the appellant, Billy Wayne Rhoades, was arrested on a circuit court felony bench warrant for burglary, theft, and forgery. At the time of his arrest, Rhoades was sixteen years of age. He was jailed and later transported that same day to the sheriff’s office for questioning where he was read his Miranda rights. Prior to interrogation, Rhoades executed a juvenile rights form which was witnessed by the deputy, Norman Cornish, and an individual acting as a juvenile intake officer, Sandi Daugherty. Additionally, Cornish contacted Rhoades’ mother by phone, and the mother indicated she could not come to the jail until she got off work at 4:00 p.m. Nonetheless, the mother gave her oral consent for Rhoades to be questioned. Rhoades then was interrogated and gave inculpatory statements. Rhoades’ mother arrived at the jail shortly after 4:00 p.m., and was told that Rhoades had been questioned and he had confessed. On December 16, Rhoades was released on bond.

On January 13, 1992, Rhoades made his first appearance before the Bradley County Circuit Court, at which time counsel was appointed, and Rhoades was scheduled for plea and arraignment on February 28. However, on January 14, an order of transfer from circuit to juvenile court was entered, and on February 3, the prosecutor filed a petition in the juvenile division of chancery court to have Rhoades adjudicated a delinquent based on acts allegedly committed in a different case and which were later dismissed. The petition was amended on February 20, to include the acts committed in this case. At an April 3 hearing, the juvenile court denied Rhoades’ motion to suppress his confession, and then it adjudicated Rhoades a delinquent, finding he had committed theft of property in excess of $200 and forgery. The court committed Rhoades to the Division of Youth Services. Rhoades appeals from the court’s judgment, and for his sole point for reversal, argues the trial court erred in denying his motion to suppress his inculpatory, custodial statements.

Rhoades’ argument is based upon the state’s failure to comply with certain provisions of the Arkansas Juvenile Code after Rhoades was taken into custody pursuant to a warrant. For example, Ark. Code Ann. § 9-27-313(b) (Repl. 1993) provides in these circumstances, the officer taking the juvenile into custody must immediately take the juvenile before the court out of which the warrant was issued, and the court shall decide whether jurisdiction is in juvenile court or circuit court under § 9-27-318. The state did not comply with these procedural requirements. The Code also requires that, in delinquency and families in need of services cases, a juvenile and his parent, guardian, or custodian shall be advised (1) by the law enforcement official taking the juvenile into custody, (2) by the intake officer at the initial intake interview, and (3) by the court at the juvenile’s first appearance before the court that the juvenile has the right to be represented at all stages of the proceedings by counsel. Ark. Code Ann. § 9-27-316 (Repl. 1993). And § 9-27-317 sets out the procedures required when obtaining a juvenile’s waiver of the right to counsel which include the written and signed agreement by the juvenile and his parent, guardian, or custodian. See particularly § 9-27-317(b), (c) and (f). Again, the state in this case indisputably failed to comply fully with these right-to-counsel and waiver provisions, and Rhoades urges that the state’s failures to meet these Code requirements precluded it from extracting Rhoades’ confession and introducing it at trial.

The state responds by claiming that the Juvenile Code provisions relied upon by Rhoades are inapplicable because Rhoades was charged in circuit court with a felony as an adult, not in juvenile court as a delinquent juvenile. Consistent with the state’s argument here, we recently held in Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), that the Juvenile Code and its provisions refer only to proceedings in juvenile court. This court further concluded that, when the prosecutor chooses to prosecute a juvenile in circuit court as an adult, the juvenile becomes subject to the procedures and penalties prescribed for adults. Accordingly, the state suggests here that, since Rhoades’ constitutional rights as an adult were met when the officers interviewed and obtained his confession, the trial court was correct in allowing Rhoades’ confession into evidence even though the officers’ actions failed to comply with Juvenile Code provisions.

The state and Rhoades are both correct at least up to a point. As we stated in Boyd, the Juvenile Code provides that, when a case involves a juvenile sixteen years old or older, and the alleged act would constitute a felony if committed by an adult, the prosecuting attorney has the discretion to file a petition in juvenile court alleging delinquency, or to file charges in circuit court and to prosecute as an adult. 313 Ark. at 172, 853 S.W.2d at 264. However, felony charges in circuit court are required to be brought by indictment or information. Lowell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); see also Ark. Const. art. 2, § 8, and Ark. const. Amend. 21. In the present case, Rhoades was arrested on a circuit court felony bench warrant, but neither the abstract nor transcript shows a copy of an indictment or information setting out the felony offenses with which Rhoades was charged. As we mentioned earlier, the record reflects only that, on February 3, 1992, the state filed a petition in the juvenile division of chancery court to adjudicate Rhoades a juvenile delinquent.

In sum, our review of the record reveals Rhoades had not been charged with a felony in circuit court as an adult when the law officers interrogated him and gained his confession. Thus, under the circumstances presented, the Juvenile Code was indeed applicable at the time Rhoades gave his statement, and his statement was therefore inadmissible at trial because the law enforcement officer’s conduct failed to comport with required Juvenile Code procedures when they obtained Rhoades’ confession.

For the reasons set out above, we reverse and dismiss.

Holt, C.J., dissents.

Jack Holt, Chief Justice,

dissenting. I would like to join the majority opinion because of its desired results; however, I note, in examining the transcript of trial, that the records reflect that Rhoades was charged as a result of an information or indictment with a felony in circuit court, and for this reason we cannot afford to him the protection provided by the Arkansas Juvenile Code with reference to the taking of his statement without the required waivers from his parent, guardian, custodian, or like figure.

The majority, in its opinion, circumvents this issue by stating that Rhoades was arrested on a circuit court felony bench warrant, but neither the abstract nor the transcript shows a copy of an indictment or information setting out the felony offenses for which Rhoades was charged. Granted, the abstract does not reflect these two instruments; however, we may go to the record to affirm. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). In doing so, I note that the record contains a bench warrant which clearly reflects on its face that it was issued as a result of an indictment charging Rhoades with the offense of burglary and theft of property and forgery in circuit court.

In further examining the transcript of the proceedings of the trial court, I find that one of the circuit judges of the district filed an instrument identified as “Probable Cause Finding and Authorization for Arrest Warrant”, which document contained a typed notation reading “Information No. CR-91-122-2 A and B.” The instrument was dated December 12, 1991, and, after it was filed, a bench warrant was issued by the clerk of the court on the same date. That document recited that appellant Rhoades was to appear in circuit court to answer an indictment in that court for the offenses of burglary, theft of property, and forgery.

875 S.W.2d 814

Thomas D. Deen, for appellant.

Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.

Although there is ambiguity concerning the notation of an “information” number on the authorization for arrest warrant and the term “indictment” found in the warrant, the fact still remains that the clerk of the court formally issued a bench warrant to arrest Rhoades to answer an “indictment,” and we must accept the bench warrant — as it appears in the transcript — as properly issued unless the record reflects otherwise.

For these reasons, I can only conclude that Mr. Rhoades was arrested by a bench warrant which was predicated upon an indictment which charges him with a felony in circuit court. To hold otherwise, we would have to assume that the clerk utilized the wrong form in issuing a bench warrant or was mistaken in her action. This we should not do!

This being the case, we should invoke the provisions of the Arkansas Rules of Criminal Procedure as applied to circuit courts rather than interpose the protective shield of the Arkansas Juvenile Code.

I respectfully dissent.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING MARCH 14, 1994

Petition for Rehearing denied.

Tom Glaze, Justice.

The state files its petition suggesting that our decision and opinion rendered on January 31, 1994 in this cause overruled this court’s earlier holding in Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993). In particular, the state points to this court’s concluding paragraph of its opinion.

In Boyd, we held that, when the prosecutor chooses to prosecute a juvenile in circuit court as an adult, the juvenile becomes subject to the procedures and penalties prescribed for adults. There, the state filed charges against juvenile-Boyd in circuit court, so accordingly, we rejected Boyd’s argument that the waiver of right to counsel provisions of the Juvenile Code applied. As we stated, Boyd was never prosecuted as a delinquent in the juvenile division of juvenile court.

In the present case and unlike in Boyd, the state chose to file its petition in juvenile court to adjudicate juvenile-Rhoades as a delinquent. As a consequence, we concluded that the Juvenile Code provisions were applicable. For these reasons, we reject the state’s contention that the holding in Boyd has been overruled. Therefore, we deny its petition for rehearing.

       The exact status of this individual is not clear.

       The bench warrant does reflect in its top margin the typed words, “Information NO. CR” and the numbers “91-122-2 A and B” handwritten in. To confuse matters further, the term “indictment” is mentioned in the warrant. Of course, an information or indictment is unnecessary to issue a warrant, and unlike the dissenting opinion, the court is unwilling to speculate that a charging instrument was actually filed in this matter, especially since an information or indictment fails to appear either in the abstract or the transcript.

       The wording in the court’s concluding paragraph of its earlier opinion actually states that “the Juvenile Code was indeed applicable at the time Rhoades gave his statement.” This sentence is poorly written since the point we intend to make is that, when the state chooses to file its petition in juvenile court, the Juvenile Code provisions control. See also Justice Newbern’s dissent in Boyd, 313 Ark. at 174, 853 S.W.2d at 265. This supplemental opinion hopefully clarifies this point.


author: Donald L. Corbin, Justice.

text:
    Anthony BEASLEY v. The Honorable John M. GRAVES
    CR 93-958
    869 S.W.2d 20
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994
    [Rehearing denied March 7, 1994.]

      J.G. Molleston, for appellant.

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

      Corbin, J., not participating.

   Donald L. Corbin, Justice.

Petitioner, Anthony Beasley, seeks a writ of prohibition against the Columbia Circuit Court to prevent a hearing on the revocation of his probation. Petitioner unsuccessfully challenged the state’s revocation petition on speedy trial grounds and was granted a continuance to seek a writ of prohibition. We must deny the writ because the record does not contain all the information necessary for us to resolve the issues presented.

Parties seeking a writ of prohibition in this court must produce a record sufficient to show the writ is clearly warranted. Leach v. State. 303 Ark. 309, 796 S.W.2d 837 (1990); Reynolds v. Rogers, 297 Ark. 506, 763 S.W.2d 660 (1989). Here, petitioner contends the petition to revoke his probation should have been dismissed because he did not have a timely revocation hearing either within the sixty-day limitation of Ark. Code Ann. § 5-4-310(b) (Repl. 1993) or within the twelve-month limitation of A.R.Cr.P. Rule 28 or because the state had previously dismissed by nolle prosequi a similar revocation petition.

The sixty-day limitation of section 5-4-310(b) is not applicable to petitioner’s case because there is nothing in the record that indicates he was arrested for violating the terms of his probation. We have stated on numerous occasions that the purpose of the sixty-day requirement is to assure that a defendant who has been arrested for violation of probation is not held in jail for an unreasonable time awaiting his revocation hearing. See e.g., Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980). When there has been no such arrest, the sixty-day limitation is not absolute, Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988); and even if a defendant was already incarcerated on another charge, he suffers no prejudice if more than sixty days lapses before his revocation hearing. Lark, 276 Ark. 441, 637 S.W.2d 529; Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986). The record is complete on this issue; it reveals that petitioner was not arrested or held in custody for violating his probation. Therefore we cannot say the trial court erred in denying his motion to dismiss the revocation petition.

The record is not complete on the issue of the applicability of A.R.Cr.P. Rule 28 to this case. Although the trial court ruled that Rule 28 was not applicable to probation revocation proceedings, there is nothing in the record to indicate the evidence or arguments presented on this issue; nor is there anything in the record indicating the trial court’s reasoning. We cannot review petitioner’s contention regarding the twelve-month limitation of Rule 28 without this information.

The record is not complete on the issue of the nolle prosequi. Although there is a docket entry indicating the state’s motion for a nolle prosequi on the first revocation petition was granted, there is nothing to indicate the evidence that was presented to the trial court on this issue or the trial court’s reasoning for granting the motion. This is necessary information in that this court has held that the state cannot dismiss charges by nolle prosequi and then refile the same charges for the purpose of circumventing the speedy trial rules. State v. Washington, 273 Ark. 82, 617 S.W.2d 3 (1981).

This court will not grant a writ of prohibition based on incomplete or unclear facts. Hodges v. Hodges, 298 Ark. 550, 111 S.W.2d 741 (1989) (per curiam); Reynolds, 291 Ark. 506, 763 S.W.2d 660. Petitioners request for relief is therefore denied. In denying the request, we do not give validity to any actions of the trial court and assume all issues will be properly presented on direct appeal if necessary. See Hodges, 298 Ark. 550, 771 S.W.2d 741.

The petition for writ of prohibition is denied without prejudice to raise the speedy trial claim on direct appeal.


author: Robert L. Brown, Justice.

text:
    Kenneth Anthony BANKS, Debra Ann Faulkner v. STATE of Arkansas
    CR 93-543
    869 S.W.2d 700
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994

      McArthur & Finkelstein, by: William C. McArthur, for appellant.

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

This is an appeal by the two appellants from convictions arising out of the death by shooting of Jessie Williams. Kenneth Anthony Banks appeals the judgments of conviction for first degree murder and felon in possession of a firearm and the accompanying sentences of 30 years and 6 years, to be served consecutively. Debra Ann Faulkner, his wife, appeals her judgment of conviction for second degree murder and her sentence of 15 years. She also was convicted of a felon/firearm charge and received the same 6-year sentence. We find no merit in the grounds raised for reversal, and we affirm.

Late afternoon on November 5, 1991, Banks, accompanied by Faulkner, and her sister, Victoria Michele Fantine, went to the Maryvale Apartments in Little Rock. Faulkner had previously lived in one of the apartments and wanted to check her mail. While at the apartment complex, Faulkner saw the victim, Jessie Williams, whom she recognized as having stolen property from her earlier that year. He had also abused her sister, Fantine. When the three left the apartments, Faulkner told Banks that Williams had pushed Fantine into the apartment swimming pool and tried to drown her. He then stole Faulkner’s $55 starter shirt, and when the sisters pursued him, he threatened them with a pistol.

Banks was infuriated by the story. He followed Williams in his vehicle accompanied by Faulkner and Fantine and then went to a liquor store. Later that same evening, the three returned to the Maryvale Apartments and went to Williams’s apartment. Banks had a 12-gauge shotgun in his truck which he had borrowed from his brother. Williams came to the door, and Banks talked to him with Faulkner and Fantine present. Banks then retrieved the shotgun from the truck and approached Williams with the gun at his side. He told Faulkner and Fantine to go back to the truck. One shot was fired by Banks which hit Williams in the left back area and killed him. Banks admitted the shooting at trial but testified that Williams acted as if he was reaching for his pistol, and the shooting was justifiable. No guns were found on Williams’s corpse or in the apartment. Banks, Faulkner, and Fantine then fled the scene in a late model Toyota 4Runner truck.

Ruby Haynes, the victim’s roommate, later testified at trial that she was in the apartment at the time of the killing. She stated that Williams put on a coat, a cap, and a pair of pants before going out to meet Banks. From the apartment window, she could see that Williams was talking with a man who was accompanied by two females. She heard Banks ask the victim if he remembered Faulkner. She also stated that Banks told Williams: “I’m giving you two minutes to strip,” and “I came to take you to a early grave.” She heard Banks tell Faulkner and Fantine to go to the truck. She then stated that the victim began to take off his coat. When Banks raised the gun, Williams tried to run into the apartment. Banks then shot him. She watched the three drive away in the truck. Haynes also stated that to her knowledge the victim did not have a gun, and investigating police officers did not find one. She added that she did not hear Banks tell the victim to take his hands out of his pockets or to stop reaching.

Fantine and the two appellants contradicted Haynes’s testimony at trial. All three maintained that Williams was either fidgeting or reaching in his pocket when Banks shot him. They admitted leaving the scene immediately in Banks’s truck and returning the shotgun to its owner who was Banks’s brother, Eugene Hampton.

/. KENNETH ANTHONY BANKS

Banks first argues that there was insufficient evidence to sustain his convictions for first-degree murder and felon-in-possession-of-a-firearm.

On appeal, we test the sufficiency of the evidence before considering other assignments of error. Cleveland v. State, 315 Ark. 91, S.W.2d (Nov. 15, 1993). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). Substantial evidence is evidence which is forceful enough to compel a conclusion one way or the other and which goes beyond suspicion or conjecture. Id. We review the evidence in the light most favorable to the appellee and consider only that evidence which tends to support the verdict. McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993).

At trial, Banks stated that he was angered by what Williams had done to his wife and her sister. He admitted that he confronted the victim and shot him with a shotgun. Ruby Haynes testified that he threatened Williams first and then shot him without provocation as he tried to run into his apartment. Williams was shot in the left back area. No gun was found on the victim or on the premises. Both Haynes and another apartment resident, Robert Battles, testified that Williams had no guns. Banks then fled. This evidence, under any test, is sufficiently substantial to sustain a first-degree-murder conviction.

Banks argues for reversal on the basis that the shooting was justified because he thought that the victim was reaching for a gun. This argument was made to the jury, and the jury was instructed on self-defense. It chose not to accept the defense. Irrespective of Banks’s evidence on this point, on appeal we need only consider that evidence which supports the verdict, and we have concluded that the proof is substantial. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). The trial court correctly denied the motion for directed verdict.

For his second point, Banks contends that the trial court erred in refusing to grant his motion to declare a mistrial. He cites this court to Fantine’s testimony that she received a threatening phone call from the Pulaski County jail to the effect that if she testified, she would be killed. This left the clear impression with the jury, according to Banks, that he was behind the call while a resident of the jail. We disagree that any prejudice requiring a mistrial transpired.

A mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any other curative relief. Meny v. State, 314 Ark. 158, S.W.2d (September 15,1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). The trial court has wide discretion in granting or denying a motion for mistrial, and its decision will not be disturbed except where there is an abuse of discretion or manifest prejudice to the complaining party. Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992); Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

At trial, Banks moved for a mistrial based on perceived prejudice arising from the following colloquy:

Prosecutor: Have you talked to Debra or Kenneth since this case has been set for trial?
Fantine: Yes, I have.
Prosecutor: Have you talked to - - When did you talk to Kenneth?
Fantine: I didn’t talk to him, talk to him on the phone. I got a threatening call but I mean I’m not saying it was his voice but somebody called me and threatened my life if I showed up in court.
Prosecutor: Did you receive a phone call from Kenneth Banks?
Fantine: I received a phone call from the county jail. I can’t say if it was his voice. Alls that I heard was a collect from Debra and I accepted it and they said if you show up in court you won’t live to see the next day.
Prosecutor: It was collect from where?
Fantine: The county jail. Correction facility.
Prosecutor: Okay. And where was Kenneth Banks at the time?
Fantine: In the Correctional —

At that point the motion for mistrial was made, and the trial court denied it. The court next asked defense counsel if a curative instruction was desired. The defense chose not to take advantage of this relief. Banks now asserts that Fantine’s testimony suggested that Banks had acknowledged his guilt by threatening Fantine in an attempt to manipulate her testimony.

On the issue at hand, we previously have stated that facts which indicate that a defendant is incarcerated are not prejudicial per se. See Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). We further have stated that prejudice will not be presumed. Id. In the instant case, any prejudice that resulted from this colloquy is remote. Fantine denied before the jury that the telephone voice was that of Banks. Further, the fact that Banks was in jail was not prejudicial in and of itself. It would come as no surprise to the jury to learn that a person charged with capital murder was a resident of the county jail before trial.

Any lingering implication that Banks was behind the call was speculative at best. Moreover, any prejudice could well have been cured by a jury admonishment, and this was not requested. An. admonishment is the proper remedy where the assertion of prejudice is highly speculative, which was certainly the situation in the case before us. See Russey & Way v. State, 257 Ark. 570, 519 S.W.2d 751 (1975). The dramatic remedy of a mistrial was simply not warranted. The trial court did not abuse its discretion in denying the motion.

II. DEBRA ANN FAULKNER

Faulkner, for her part, urges that the evidence at trial was insufficient to sustain a guilty verdict for either second degree murder or possession of a firearm by certain persons.

At the close of the first day of trial, Faulkner moved only for a directed verdict on her capital murder charge. We have held that such a limited motion does not preserve the issue of sufficiency of the evidence for a second-degree murder conviction. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). The following morning, however, the trial court considered Faulkner’s motion as encompassing lesser included offenses and the felon/firearm charge. He again denied the motion for directed verdict, and Banks and Faulkner proceeded with their respective cases. Because the trial court weighed the issues now raised on appeal, we will consider them.

Faulkner urges that the state failed to present proof that she acted as an accomplice to the murder. In this regard, she maintains that there was no evidence that she was aware of Banks’s intent or plan to shoot Williams.

On appeal, when the theory of accomplice liability is implicated, the case is affirmed if there is sufficient evidence that Faulkner acted as an accomplice in committing the alleged offense. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, coerces, aids, agrees to aid, another person in the planning or committing of the offense. Ark. Code Ann. § 5-2-403 (1987). Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make the person an accomplice. Fight v. State, 314 Ark. 438, S.W.2d (October 18, 1993). Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).

Faulkner was found guilty of second degree murder as an accomplice to the actions of Banks. There is ample evidence to support her conviction as an accomplice. In her testimony at trial, • she admits telling Banks that Williams had previously threatened her and stolen a shirt from her. She also stated that she identified the victim to Banks. She accompanied Banks when he followed Williams in the truck and when he returned to the victim’s apartment. She also went to the door of Williams’s apartment with Banks, and the victim shouted obscenities at her. She watched as Banks took the shotgun from the truck. Faulkner also testified that she fled the scene of the crime with Banks and was there when the shotgun was returned to Banks’s brother, Eugene Hampton.

Second degree murder is committed when one, with the purpose of causing serious physical injury, causes the death of a person. Ark. Code Ann. § 5-10-103 (Supp. 1991). Evidence abounded that Banks intended to cause Williams serious physical injury, and Faulkner aided in this effort. The fact that she did not intend to murder Williams and did not know that Banks intended to do so is not an element of the offense. Her argument on this point is without merit.

Faulkner further contends that sufficient proof that she possessed the shotgun, as a convicted felon, was lacking. She admitted her felony conviction but maintained that she did not exercise any control over the weapon so as to be guilty of Ark. Code Ann. § 5-73-103 (Supp. 1991).

We disagree. She certainly occupied the truck with Banks where the shotgun was located in plain view between the seats which made it immediately accessible to her and subject to her control. In analogous contraband cases, we have held this to be sufficient to constitute constructive possession. See, e.g., Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). We have also applied this test to possession of firearms by way of dictum. Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990). Finally, it was Faulkner, who returned the shotgun to its owner. We cannot say that these circumstances do not support the conviction.

Affirmed.

Holt, C.J., not participating.


author: Per Curiam.

text:
    Gregory Wayne NAIL v. STATE of Arkansas
    CR 94-11
    869 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994
    No response.

      Winston Bryant, Att’y Gen., by: Pamela Rumpz, Asst. Att’y Gen., for appellee.
   Per Curiam.

The State moves that Gregory Wayne Nail be permitted to file a belated appeal. The catalyst for the State’s motion is a Judgment from United States District Judge Henry Woods directing the trial court to appoint counsel for Nail and further directing the Arkansas Supreme Court to permit Nail to pursue the belated appeal since the delay in appealing was caused by ineffective counsel.

We first observe that the District Court has no authority to order or direct the trial court or the Arkansas Supreme Court to take any action relative to this matter. That point has been made clear. See Gibson v. Jackson, 578 F.2d 1045 (5th Cir. 1978); Wallace v. Havener, 552 F.2d 721 (6th Cir. 1977), cert. denied 434 U.S. 940 (1977); Dixon v. Beto, 472 F.2d 598 (5th Cir. 1973), cited with approval, Grigsby v. Mabry, 637 F.2d 525 (8th Cir. 1980); Beckham v. State, 397 So.2d 449 (Fla. Dist. Ct. App. 1981).

Indeed, when a District Court ordered a state court to hold an evidentiary hearing following a habeas corpus proceeding, the Fifth Circuit Court of Appeals made this comment in a footnote:

After our initial remand, the District Court “ordered” the state court to hold an evidentiary hearing. In a noble gesture of judicial statesmanship, Chief Judge Ben C. Willis of the Circuit Court of Leon County, Florida, accommodated the federal Judge’s desires and held a hearing—although it is clear that he did not have to do so.

Hoskins v. Wainwright, 485 F.2d 1186, 1188 fn.3 (5th Cir. 1973).

We write this per curiam to highlight the error in the District Court’s judgment. The appropriate avenue for federal relief is to grant a petition for habeas corpus, not to order or direct the state courts to take some action. We choose to grant the State’s motion because the motion has merit under Osbourne v. State, 276 Ark. 479, 637 S.W.2d 535 (1982).

Motion granted.


text:
    Cherry PARKER v. STATE of Arkansas
    CR 94-43
    870 S.W.2d 212
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994

      Jan Thornton, for appellant.

      No response.
   Per Curiam.

Appellant, Cherry Parker, by his attorney, Jan Thornton, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to an oversight on her part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Sean RIGGINS v. STATE of Arkansas
    CR 94-44
    870 S.W.2d 377
    Supreme Court of Arkansas
    Opinion delivered January 31, 1994

      Mark F. Hampton, for appellant.
    No response.
   Per Curiam.

Petitioner, Sean Riggins, by his attorney, Mark F. Hampton, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


author: Robert H. Dudley, Justice.

text:
    Keith R. HICKMAN v. Keith D. CARTER
    93-735
    870 S.W.2d 382
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Barker & Selby, by: Paul D. Selby, for appellant.

      Michael D. Ray, for. appellee.
   Robert H. Dudley, Justice.

Plaintiff, Keith Carter, and defendant, Keith Hickman, were involved in a two-car wreck. The investigating officer testified that defendant’s car crossed over the centerline into plaintiff’s lane and struck plaintiff’s car. His testimony was based on gouge marks left in the road. Plaintiff also testified that defendant’s car crossed over into his lane and the left headlights of both cars met head on. Plaintiff admitted that he had drunk two bottles of beer, but testified that he was not drunk, was in control of his vehicle, and that the alcohol did not affect him. He took a breathalyzer test after the accident and registered .08 blood alcohol content.

The defendant testified that he did not recall how the accident occurred. The investigating officer testified that, because the defendant was lying on the ground vomiting, he leaned over to check the defendant’s condition and smelled a strong odor of alcohol coming from the defendant. At trial, the defendant’s cheeky explanation was that the smell of alcohol came from kissing a woman who had been drinking. Similarly, he claimed he was charged with refusal to submit to a breathalyzer test as a spiteful response by police to his request to take the breathalyzer test when the police did not have the breathalyzer equipment available.

At a bench trial the judge found for plaintiff and fixed the amount of damages at $3,000. We affirm the judgment.

Defendant-appellant contends that the trial court erred in finding that his negligence was the sole cause of the accident. The determination of negligence and the apportionment of fault among the parties is ordinarily an issue for the finder of fact, and it is not our province to compare the apportionment of negligence of the litigants when a fair-minded factfinder might reasonably reach conclusions different from ours. Johnson v. Cross, 281 Ark. 146, 661 S.W.2d 386 (1983); McDonald v. Hickman, 252 Ark. 300, 478 S.W.2d 753 (1972). This is essentially the same test as that of substantial evidence. Johnson; Farrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). Here, the finder of fact could reasonably have found the defendant’s negligence was the sole cause of the wreck, and we will not disturb that finding.

Defendant-appellant’s next argument is that the trial court erred in awarding damages because the plaintiff had no basis for his testimony about the value of his car. We do not reach the argument because the defendant did not raise this objection at trial, and we will not consider the matter for the first time on appeal. Insured Lloyds v. Mayo, 244 Ark. 802, 427 S.W.2d 164 (1968).

The defendant did move for a directed verdict because of “inadequacy” of the proof of damages. Perhaps his argument is intended to go to the denial of this motion, and so we briefly address the matter. In reviewing the ruling on the motion, an appellate court considers all of the evidence admitted. We do not exclude the evidence which the appealing party contends was erroneously admitted. The plaintiff testified that his car was worth $3,000 immediately before the accident, and that it was totally destroyed in the accident. The plaintiff additionally testified that the cost of repairs was more than the worth of the car before the accident.

We have consistently allowed the property owner to give his or her opinion of the value of the damaged property. Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984) . Testimony by an owner can constitute substantial evidence of the damages. Stipp v. Jenkins, 239 Ark. 15, 386 S.W.2d 695 (1965). Additionally, we have long held that, in the absence of other competent proof of damages, the difference in market value before and after the collision may be established by showing the amount paid in good faith for the repairs necessitated by the collision. Sipes v. Munro, 287 Ark. 244, 697, 905 S.W.2d (1985) . Thus, the trial court did not err when it denied the motion for a directed verdict on the ground that the proof of damages was inadequate.

Affirmed.


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

text:
    STATE of Arkansas v. Scott Allen LANDIS
    CR 93-1110
    870 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      Scott E. Smith, for appellee.
   Robert H. Dudley, Justice.

Appellee Scott Landis pleaded guilty to the offense of delivery of less than ten pounds of marijuana, a class C felony. The trial court sentenced appellee to five years probation, placed him under house arrest for six months, and ordered him to pay court costs and restitution. The State objected to placing appellee on probation. The trial court overruled the objection and entered the probated sentence. The State appeals. We reverse and remand for resentencing.

The appellee committed the felony in November, 1991. At that time the applicable statutes in force provided that a court could not place a defendant on probation for drug related offenses under the Uniform Controlled Substance Act, except as provided in that Act. Ark. Code Ann. §§ 5-4-104(e)(1)(F) & 5-4-301(a)(l)(F) (Supp. 1991), repealed by Act 192 of 1993. The Act prescribes the punishment for delivery of less than ten pounds of marijuana as imprisonment for no less than four years nor more than ten years “and/or” a fine of no more than twenty-five thousand dollars. Probation is only authorized under the Act for possession of a controlled substance. Ark. Code Ann. § 5-64-407 (Repl. 1993). Appellee pleaded guilty to delivery of a controlled substance. In summary, at the time the offense was committed, the applicable statutes prohibited probation for delivery of a controlled substance, and, consequently, the trial court erred in placing appellee on probation.

We have decided the issue presented in this appeal on several occasions. See, e.g., State v. Williams, No. CR 93-870 (Ark. Jan. 10, 1994); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). Appellee contends these cases should be distinguished because they involve cocaine, not marijuana, and because the punishment for the offense of delivery of less than ten pounds of marijuana allows the imposition of a fine only, unlike an offense involving cocaine. The cases cannot be so distinguished. In Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), we affirmed the refusal of a trial court to impose probation or suspend imposition of sentence for the same offense, delivery of marijuana. In so doing we wrote: “Act 608 [sections 5-4-301(a)(1)(F) and 5-4-104(e)(1)(F)] makes it obvious that delivery of marijuana is simply not a crime where either probation or suspension is available to the circuit court for consideration as an appropriate sentence.” Id. at 380, 843 S.W.2d at 854.

The State cited Whitener at the time it objected to the trial court placing appellee on probation. While it may seem incongruous that, at the time the crime was committed, a trial court could punish an offender by simply fixing a fine, but could not place a defendant on probation, such was the mandate of the statutes in effect. The statutes have now been amended, and this incongruity has been removed.

Reversed and remanded for resentencing.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. The appellant, Landis, was fined in this case. He was also placed on five years probation. The operable statute, Ark. Code Ann. § 5-64-401(a)(l)(rv) (Supp. 1991), provides that imprisonment “and/or” a fine may be the punishment for delivery of marijuana. The State concedes that a fine alone satisfies the statute. Yet, the majority reverses and remands for resentencing because the trial judge added a probationary period. I would affirm.

The confusion surrounding this matter is due to the substance involved. Schedule VI controlled substances include marijuana. Delivery of Schedule VI substances is a Class C Felony under § 5-64-401(a)(l)(iv). As already stated, a fine may be the sole punishment under this section.

Cocaine is a Schedule II controlled substance. Delivery of cocaine is a Class Y felony which carries with it a mandatory prison sentence. Ark. Code Ann. § 5-64-401(a)(l)(i) (Supp. 1991). A fine is not authorized as an alternative punishment for delivery of cocaine. Probation or suspension of the mandatory prison term is clearly disallowed for Schedule II substances. The two cases cited by the majority in its opinion, State v. Williams, 315 Ark. 464, 868 S.W.2d 461 (1994) and State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993), were both cocaine cases as was State v. Whale, 314 Ark. 576, 863 S.W.2d 290 (1993).

The majority also cites Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), in support of its position. This is a delivery-of-marijuana case but what distinguishes that case from the present case is that no fine was imposed in Whitener, only a prison sentence was. The defendant argued that the trial court should have suspended the sentence or placed him on probation, but the trial court correctly refused to do that, and we affirmed. But had a fine been imposed in Whitener, that penalty would have complied with the minimum requirements of Ark. Code Ann. §5-64-401(a)(l)(i), and no prison term would have been required.

Because § 5-64-401 (a)(l)(i) requires only a fine for delivery of marijuana, the trial judge’s sentence was in accord with the statute. The fact that he tacked on an additional probationary sentence does not void the sentence. We have only reversed sentences where imprisonment was the only pronounced penalty and where the trial court suspended the sentence or placed the defendant on probation.

It is unclear to me what the majority has decided in this case. Is the case being remanded so that the trial judge can simply fine Landis and remove the five-year probation? The trial judge made it clear that he did not believe Landis was a candidate for prison. Or is the majority suggesting or requiring that Landis be sentenced to some period of imprisonment, irrespective of the judge’s comment? Or is the majority remanding for a complete resentencing in light of the fact that it is denying probation as an option accompanying the fine?

The trial judge’s sentence was just and justifiable under the statute. It should be affirmed.


text:
    U.S. TERM LIMITS, INC., et al. v. Bobbie E. HILL, et al.
    93-1240
    870 S.W.2d 383
    Supreme Court of Arkansas
    Opinion delivered February 7, 1994
    No response.

      Mackey & Wills, P.A., by: Frank J. Wills, III, for appelleemovant.
   Robert H. Dudley, Justice.

An association named Arkansans for Governmental Reform is participating in this appeal and has petitioned by its attorneys, Mackey and Wills, for this justice to disqualify from this case. The motion is denied.

The alleged basis for recusal is that this justice wrote a dissenting opinion in Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992), and that case and this justice’s dissenting opinion in that case involved some of the same questions presented in this appeal, and, as a result, Canons 2(A) and 3(C) prohibit this judge from participating in this appeal.

Procedurally, there is no reason to conduct a hearing on the motion because the facts alleged are not in dispute. See Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988).

Substantively, the alleged ground is not a valid reason for recusal under Canon 3(C). In Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987), the opinion of the court provides: “We agree with the decisions of other jurisdictions holding that Canon 3(C)(1)(a) of the Code of Judicial Conduct is not meant to preclude participation of a judge who has obtained knowledge of a case through previous judicial participation in it.”

All other jurisdictions that have interpreted Canon 3(C) have interpreted it in the same manner. State v. Thompson, 724 P. 2d 1223 (Ariz. 1986); Jones v. State, 416 N.E.2d 880 (Ind. App. 1981); Manning v. Engelkes, 281 N.W.2d (Ia. 1979); Reading v. Ball, 354 S.E.2d 397 (S.C. Ct. App. 1987). See also In re Kean, 520 A.2d 1271 (R.I. 1987); Barca v. Barca, 546 A.2d 887 (Conn. App. 1988); State v. Reeter, 848 S.W.2d 560 (Mo. App. 1993); Klein v. Klein, 572 A.2d 900 (Vt. 1990); Department of Revenue v. Golder, 322 So. 2d 1 (Fla. 1975); State v. Flint, 301 S.E.2d 765 (W.Va. 1983); Brendla v. Acheson, 554 A.2d 799 (Me. 1989); Doering v. Fader, 558 A.2d 735 (Mo. App. 1989); Goldman v. Bryan, 764 P.2d 1300 (Nev. 1988); State v. Miller, 429 N.W.2d 36 (S.D. 1987); Grider v. Boston Co., Inc., 773 S.W.2d 346 (Tex. App. 1989).

The Supreme Court of Arkansas, by the July 5, 1993 revision of the Arkansas Code of Judicial Conduct, endeavored to give judges more latitude in deciding whether to disqualify. Prior to the 1993 revision, the Code, in Canon 3(B)(1), provided: “A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.” The foregoing sentence was removed from the current Code to exemplify the modern view of judicial disqualification, and to curtail the notion that a judge had a strong “duty to sit” unless clearly disqualified. Under the current code, a judge has a strong duty not to sit in cases where he or she is disqualified, but there is an equally strong duty to sit in cases when he or she is not disqualified.

The movant also alleges that this justice should recuse under Canon 2(A) because, it alleges, this justice communicated bias by writing the dissenting opinion. None of the cases cited by movant support its position. The bias referred to in Canon 2(A) is a personal bias or prejudice. See Canon 2(A); see also Laird v. Tatum, 409 U.S. 824 (1972) (involving comparable federal statute); see also John P. Frank, Disqualification of Judges, 56 Yale L.J. 605 (1947). In United States v. Grinnel Corp., 384 U.S. 563, 583 (1966), the opinion of the Supreme Court of the United States provides: “The alleged bias and prejudice to be disqualifying [under the comparable federal statute] must stem from an extra-judicial source and result in an opinion on the merits of some basis other than what the judge learned from his participation in the case.”

In a comparable case, after reversal and remand of a case back to the trial court, the plaintiff moved for the trial judge to disqualify from hearing the case the second time. The plaintiff’s argument was based upon the same construction of Canon 2(A) as the movant proposes in this motion, and the plaintiff’s attorney in that case gave many of the same citations as does the movant in this motion. The trial judge refused to disqualify because, under the Canons, there was no valid reason for him to recuse, and he obviously believed that he could preside with impartiality. Upon appeal, the Supreme Court examined plaintiff’s argument and the Code of Judicial Conduct, and held: “There was no valid reason for the judge to disqualify. A judge has a duty to remain in a case unless there is some valid reason to disqualify.” Carton v. Missouri Pacific R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).

Disqualification is a matter left largely to the discretion of the individual judge. Sloss v. Farmers Bank & Trust Co., 290 Ark. 304, 719 S.W.2d 273 (1986). On occasion, it is difficult to determine whether one ought to disqualify, but not in this case. The ground alleged by movant is not a valid ground for recusal. It is the duty of this justice to refuse to disqualify.