author: David Newbern, Justice.

text:
    CARROLL ELECTRIC COOPERATIVE CORPORATION v. Lytle CARLTON, et al.
    94-758
    892 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Friday, Eldredge & Clark, by: James C. Baker, Jr., and Tony L. Wilcox.

      Roy & Lambert, by: Brian D. Wood and Xollie Duncan, for appellees Lytle and Novella Carlton.

      Jones & Jones, by: J. Scott Hardin and Lewis D. Jones, for appellee Pamela McDaniel.
   David Newbern, Justice.

Damages resulting from a fire in the home of the appellees, Mr. and Mrs. Lytle Carlton, were the subject of a claim brought against Pamela McDaniel, who is also an appellee, and Carroll Electric Cooperative Corporation (CECC), the appellant. Special verdict forms were submitted to the jury which found CECC liable but not Ms. McDaniel. Damages of $89,500.55, plus costs, were awarded against CECC which urges two points of appeal. First, CECC contends the Trial Court erred in giving an instruction on intervening cause, AMI 503. Second, it contends it is entitled to a new trial due to an inconsistency in the special verdicts returned by the jury. We affirm the judgment.

Mr. and Mrs. Carlton have cross-appealed. They contend the Trial Court erred by directing a verdict in favor of CECC on the issue of punitive damages and that it was error for the Trial Court to provide for interest on the judgment at 8% rather than the 10% required by statute. We hold the Trial Court did not err in directing a verdict on punitive damages. We reverse the decision to allow only 8% interest on the judgment, and we modify the judgment to provide interest at 10%.

At around 8:30 p.m., April 8, 1991, Ms. McDaniel lost control of her car due, according to her testimony, to oncoming headlights which “sort of blinded” her and her perception that the oncoming car was edging toward her lane. Her car left the road and struck a guy wire attached to a power pole owned by CECC and then struck another such pole. The guy wire on the first pole snapped, and the second pole was displaced some two inches at its base. A power outage occurred in the area at that time, apparently due to the tripping of a breaker in a CECC substation.

Shortly thereafter, a “troubleshooting” team, consisting of CECC employees Steve Embry and Terry Peters, was dispatched to the scene of the accident. They observed the poles and found no damage to them. Mr. Embry testified that the guy wire had, upon being broken, flipped up over the feeder line, and that caused the power outage.

After inspecting the poles with flashlights, Mr. Embry and Mr. Peters decided not to replace the guy wire and that it was safe to restore the power to the line served by the pole to which the guy wire had been attached. Some of the details of what happened next are unclear, but it is undisputed that a wire supported by that pole came down at some point and energized a nearby fence. The fence ran close to an LP gas tank outside the Carlton home which was about an eighth of a mile away from the accident scene. Power arced from the fence to the tank and ran from the tank up a pipe to a clothes dryer in the Carlton home. The fire was determined to have begun sometime later at the clothes dryer.

On the morning of April 9, Messrs. Embry and Peters reported the accident and broken guy wire to their supervisor Jim Tevebaugh. Mr. Tevebaugh testified he did not have time to go to the scene until around noon, about which time he heard on radio about a house fire which was occurring. When he arrived he found a broken feeder wire which had touched the fence and burned so it was hanging about six inches above the fence.

Mr. Tevebaugh and his crew replaced the broken feeder wire and then went on down the line to the scene of the accident where they replaced the broken guy wire. Mr. Tevebaugh and experts who also testified explained that in a single phase electrical line, such as the one being discussed, the feeder wire is strung some four feet higher than a neutral wire strung below it on the same poles.

Electrical engineer John G. St. Clair, an expert witness presented by the Carltons, testified that when the car hit the guy wire it pulled the guy wire back and then, when the guy wire broke, the pole was snapped forward. That caused the feeder wire to sag, and to sag further during the night, eventually causing the feeder wire to touch the neutral wire which did not sag as much because it caught on the branches of a tree. He said when the two wires touched it caused “fireworks.” It was his opinion that the guy wire should have been replaced and the remainder of the wire inspected that night prior to restoring power to the line. He concluded CECC had been careless and acted in disregard for human life by restoring power to the line and failing to take those precautions. •

Another electrical engineer, Eric Jackson, presented by CECC, testified that the collision with the guy wire caused a “galloping” in the wires which allowed the feeder wire to touch the neutral wire. That would have caused no breakage at that time but could have merely weakened the core of the feeder wire, and that would not have been apparent to one inspecting it shortly after the accident. The wire could then have broken due to wind or some other physical force in the 13 or 14 hours between the time of the accident and the fire. He disputed the “sag theory” espoused by Mr. St. Clair.

Over the objection of CECC, an instruction based on AMI 503 was given to the jury as follows:

Now, in this case Pamela Jean McDaniel contends and has the burden of proving that following any act or omission on her part an event intervened which in itself caused damage completely independent of her conduct. If you so find, then her act or omission was not a proximate cause of any damage resulting from the intervening event.

The jury was given these special verdict forms:

Do you find from a preponderance of the evidence that there was negligence on the part of Carroll Electric Cooperative Corporation which was a proximate cause of any damages?
Do you find from a preponderance of the evidence that there was negligence on the part of Pamela Jean McDaniel which was a proximate cause of any damages?
If you have answered either Interrogatory No. 1 or Interrogatory No. 2 “yes,” then answer this interrogatory: Using 100% to represent the total responsibility for the occurrence and any injuries and damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible:

A final form asked the jury to assess the amount of damages shown by the preponderance of the evidence to have been suffered by the Carltons.

Nine jurors signed each of the first two forms as well as the fourth. The first one was answered “yes.” The second one was answered “no.” The third form, inquiring about the percentage of liability assigned to Ms. McDaniel and to CECC, was answered “100%” to CECC and “0%” to Ms. McDaniel. It was signed only by the jury foreman. When the Trial Court inquired whether that verdict was unanimous, a juror answered that it was not. The foreman then commented that he thought it unnecessary have the jurors sign that form in view of their responses to the first two forms. The jury was then returned to the jury room so that the third form could be signed by the jurors who agreed to it. It was returned with nine signatures. One of the signatures on the third form was that of Melissa Habermehl. Ms. Habermehl was not one of the nine who had signed the first form. She was thus on record as finding CECC 100% at fault but not as having found CECC negligent and the proximate cause of the damages.

1. Intervening cause

The question presented is whether the evidence justified giving an instruction which allowed the jury to consider whether the negligence it ultimately found on the part of CECC was, in the words of AMI 503, an “event [which] intervened which in itself caused damage completely independent of [Ms. McDaniel’s] conduct,” thus exonerating Ms. McDaniel of any liability.

Section 452 of the Restatement (Second) of Torts (1965), to which we referred in Kelly v. Wiggens, 291 Ark. 280, 724 S.W.2d 443 (1987), is cited by CECC. It discusses intervening or, as the Restatement perhaps more appropriately calls it, “superseding” cause. It provides in subsection (1) that as a general rule the failure of a third party to prevent harm threatened by another’s conduct is not a superseding cause. In subsection (2), however, it provides:

Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.

The Restatement provision and underlying commentaries are not very helpful here as they deal in the question of “duty” and whether it may be shifted entirely from one negligent actor to another. The matter of whether one party or another or more than one has a duty is a question of law for the Trial Court to decide. Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 870 S.W.2d 729 (1994); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983).

An electric company is held to a high degree of care in the erection, maintenance, operation, and inspection of its equipment used in the generation and transmission of electricity. Arkansas Power & Light Co. v. McGowan, 227 Ark. 55, 296 S.W.2d 420 (1956). See also Woodruff Electric Coop. Corp. v. Daniel, 251 Ark. 468, 427 S.W.2d 919 (1971). No doubt CECC owed a duty of care to the public, including the Carltons.

In this case, the Trial Court made no decision holding that whatever duty Ms. McDaniel may have had shifted over to CECC. Rather, the question of intervening cause was submitted to the jury on the basis of AMI 503 which requires the jury to determine whether the circumstances were such that the damages to the Carltons were caused by an event which was completely independent of Ms. McDaniel’s actions. The issue submitted to the jury was thus one of causation, not one of duty.

In Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980), we discussed thoroughly the concept of “efficient intervening cause.” One of the defendants was the supplier of an agricultural spreading machine. The machine operated from the power take-off of a tractor. The shaft of the machine had no protective cover. The supplier contended it could not be held responsible for injury suffered to the farmer who allowed his pants to be caught in the turning shaft because the farmer’s negligence in stepping near the shaft was such an intervening cause. We noted that the question of intervening cause, like any other question of proximate causation, is usually one for the jury, and it was not error to have submitted it to the jury in that case.

In Arkansas Kraft Corp. v. Johnson, 257 Ark. 629, 519 S.W.2d 74 (1975), a lumber company was held liable for negligently loading a railroad car with timber. The timber fell out killing a bystander. The lumber company contended it could not be liable as a matter of law because the acceptance of the obviously negligently loaded car by the railroad for transport was a superseding cause. Although the question presented was not whether it was proper to have instructed the jury on intervening cause, we remarked, “An instruction on intervening cause was properly given to the jury, and certainly we cannot say, as a matter of law, that there was no jury question on this issue.”

We understand and are sympathetic to CECC’s insistence that the fire in this case would not have happened had the guy wire not been severed by Ms. McDaniel. We are, however, persuaded that the evidence allowed the jury to find that the public, including the Carltons, was out of danger when the electricity went off immediately after the accident. The fire occurred some 14 or 15 hours later. It could have found that no further injury would have occurred had the power not been restored to the line without reattaching the guy wire, and thus that the negligence of CECC was an independent, intervening efficient cause of the damages.

2. Inconsistent special verdicts

Arkansas R. Civ. P. 48 and Ark. Const, art. 2, § 7, require that an other than unanimous verdict be signed by at least nine jurors. The problem here is that the special verdict finding CECC liable was not signed by Ms. Habermehl but the special verdict finding 100% liability on the part of CECC was signed by her. CECC contends this inconsistency entitles it to a new trial.

True enough, Ark. R. Civ. P. 48 provides that all jurors consenting to a verdict which is less than unanimous “shall sign the same.” See Center v. Johnson, 295 Ark. 522, 705 S.W.2d 396 (1988) (Glaze, J., concurring). It is thus apparent that if Ms. Habermehl indeed thought CECC was liable for 100% of the damages sustained by the Carltons as her signature on the third special verdict form indicated, Rule 48 may have been violated by her failure to sign the first special verdict form.

We have some doubt whether CECC has demonstrated any prejudice as a result of the juror having signed the one special verdict but not the other, but we conclude that it waived the right to have the matter considered on appeal by its failure to object at the trial. Ordinarily a party has an obligation to make such an objection before the jury is discharged or the error, if any, is waived. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991); P.A.M. Transport, Inc., v. Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993). The reason for the rule is that an objection at that time allows the Trial Court to resubmit the inconsistent verdict to the jury and attempt to correct the discrepancy.

Center v. Johnson, supra, is a plurality decision cited by CECC in support of its contention that its failure to question the special verdicts before discharge of the jury did not result in waiver of an issue concerning the verdicts on appeal. In that case, the Trial Court and the jury foreman announced that the verdict had been signed by nine jurors. When the verdict was inspected after the trial, it was discovered that only eight jurors had actually signed. We held that the objection was not waived because the parties had been misled by the announcement and thus had no reason to object.

This case is different. No one was misled by any announcement by the Trial Court. In fact, nine jurors had signed each of the special verdict forms. Not only was neither party misled, both were alerted to some confusion in the process of dealing with the special verdict procedure when it became necessary to return the jury for signatures on the third form. The problem could have been identified prior to the discharge of the jury had the parties simply examined the special verdict forms after they were returned and before the jury was discharged. We hold CECC’s objection on the basis of inconsistency of the special verdicts was waived.

3. Punitive damages

On the cross-appeal, we cannot say the directed verdict in favor of CECC on the Carltons’ claim for punitive damages was error. If any substantial evidence existed tending to establish an issue of fact on the issue, it was error for the trial court to take the case from the jury. Ikani v. Bennett, 284 Ark. 409, 682 S.W.2d 747 (1985).

An award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice may be inferred. National By-Products, Inc. v. Searcy House Moving Co., Inc., 292 Ark. 491, 731 S.W.2d 194 (1987). There was no evidence tending to prove that CECC acted with actual malice. Nor was there evidence of conscious indifference to the consequences of its actions. The jury was justified in finding negligence in direct connection with the incident and perhaps in the general lack of any inspection program more rigorous than casually viewing the lines as CECC workers drove past. That, however, does not satisfy the criteria for punitive damages. Mere negligence, or even gross negligence, is not sufficient to justify punitive damages. Missouri Pac. RR v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988); National By-Products, Inc. v. Search House Moving Co., Inc., 292 Ark. at 494.

4. Interest

The Carltons correctly contend in their second cross-appeal point that it was error for the Trial Court to award interest at 8% per annum on the judgment. Apparently, the judge crossed out the portion of the judgment form that provided that the amount of recovery of the plaintiffs shall bear interest at 10% per annum, and wrote above it the rate of 8%.

Arkansas Code Ann. § 16-65-114 (1987) provides as follows:

(a) Interest on any judgment entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) per annum, whichever is greater, and on any other judgment at ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution, Article 19, Section 13, as amended.

CECC argues that the clear language of the statute indicates that the interest on any judgment is limited by the maximum rate allowable by the Constitution, and for that reason the Trial Court was correct when it assigned an interest rate of 8% per annum.

Article 19, section 13, of the Constitution does not apply to interest on judgments. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). Interest should have been provided at the statutory rate. We therefore reverse only that portion of the judgment providing for 8% interest per annum on the judgment, and we modify it to provide that interest on the judgment shall be 10% per annum.

The judgment is affirmed on appeal and affirmed in part and reversed and modified in part on cross-appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Bobbie NICHOLSON v. STATE of Arkansas
    CR 94-982
    892 S.W.2d 507
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995
    [Rehearing denied March 27, 1995.]

      Adams & Evans, by: Don J. Adams', Ralph J. Patterson', and Russell L. “Jack" Roberts, for appellant.

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

Bobbie Nicholson was convicted of murdering her husband, Don Nicholson, with premeditation and deliberation in violation of Ark. Code Ann. § 5-10-101 (a)(4) (Repl. 1993). She was sentenced to life in prison without parole. Her points of appeal are (1) that the Trial Court lacked jurisdiction of the offense, (2) that hearsay testimony was erroneously admitted against her, and (3) that it was error to permit the testimony by an expert expressing an opinion which had not been provided to her before the trial. We find no error and affirm.

The evidence was circumstantial. From the testimony presented, these facts could have been determined by the jury. In the early morning hours of September 15, 1992, Don Nicholson died in a motel room in Marshall. The Searcy County Coroner ruled the death to be the result of a heart attack. A subsequent autopsy performed at the request of Mr. Nicholson’s children from a previous marriage revealed he had been poisoned with a combination of ethylene glycol, a substance found in anti-freeze, and tolbutamide, a drug used to treat diabetics. Codeine and Valium were also found in his system.

Mr. Nicholson maintained homes in Greenville, Mississippi, and in Jesseville. In September he was in Greenville where he had family and friends. He made some statements, which became the subject of the hearsay objection at the trial, that he was not satisfied with his marriage to Bobbie Nicholson and planned to file for divorce within a matter of weeks. While in Mississippi, he also mentioned he was seeing another woman.

Upon Mr. Nicholson’s return to Arkansas, he and Mrs. Nicholson, who worked on an “agency” or “as needed” schedule as a Licensed Practical Nurse, began a trip to Harrison to visit Mrs. Nicholson’s mother who was ill. At around 5:00 p.m., September 14, they stopped at Marshall because, Mrs. Nicholson later told officials, Mr. Nicholson was vomiting and was too sick to go on. Her statement to Mr. Nicholson’s children was that they stopped because he was just too tired to drive the additional forty miles to Harrison. She registered at the motel as “Bobbie Graham.” Chester Ballard, a guest at the motel, testified he helped get Mr. Nicholson, who was having trouble walking and talking, from the van into the motel room. He said Mrs. Nicholson explained to him that Mr. Nicholson was having a “seizure.”

Chay Phung, the owner and manager of the motel, stated that Mrs. Nicholson returned to the main lobby and restaurant about twenty minutes after checking in to get extra towels, a blanket, a glass of orange juice, and a vegetable plate. When he offered to help her carry these items back to her room, Mrs. Nicholson told Mr. Phung that she could handle it.

Gay Phung, Mr. Phung’s wife, testified she was working in the restaurant when Bobbie appeared to get the vegetable plate and orange juice. Both Mrs. Phung and Camilla Pratt, a waitress, testified that Bobbie appeared nervous and jumpy, and that she “stole” packets of sugar as she ordered the orange juice, apparently not wanting to be observed taking them.

The next contact Mrs. Phung had with Mrs. Nicholson came the following morning after it was discovered that Mr. Nicholson had died. Mrs. Phung testified that Bobbie added the name “Nicholson” to “Bobbie Graham” as it appeared on the motel registration card and told her it was to insure that her husband’s company would pay the motel bill.

Initially, Mrs. Nicholson was the only source of information concerning Mr. Nicholson’s last moments of life. She told police that he and she went to bed at about 10:00 p.m. and that she awoke at about 4:00 or 4:30 a.m. on September 15. She said Mr. Nicholson told her to shower first while he got more sleep. After she finished showering, she told police, she heard a moan and found Mr. Nicholson foaming at the mouth. Because the rooms at the motel did not have phones, she went across the street to a convenience store and told the clerk to dial 911 because her husband was having a heart attack.

The convenience store clerk was Jeffery W. Smith. Mr. Smith testified that Bobbie came into the store and asked him to dial 911. He said that he thought she was a traveler because her clothes were rumpled. It did not appear that she had just been in the shower as her hair was not wet. When he went over to the motel later that morning to offer help, he noticed that Mrs. Nicholson was dressed up and on her way back home.

Spring Lutz was one of the Emergency Medical Technicians (EMT) who responded to the call. She testified that when she arrived in the Nicholsons’ room, she found Mr. Nicholson in one of the beds. When she began to examine him, she found he was cold to the touch and that his blood had begun pooling, indicating that he had been dead for some time and that emergency procedures to revive him would be useless. She also testified that Mrs. Nicholson told her that Mr. Nicholson had gasped his last breath as she emerged from the shower approximately ten minutes before the ambulance arrived, which Ms. Lutz claimed was inconsistent with what she observed from the condition of the body. It was also inconsistent with Ms. Lutz’s observation that Mrs. Nicholson was wearing a “dressy” pantsuit, had make up on, and her hair curled when the EMT arrived.

After the Searcy County Coroner determined that the apparent cause of death was a heart attack, Mrs. Nicholson arranged for the body to be sent to Mississippi for burial. When she discussed Mr. Nicholson’s death with his children, her account of his last moments varied somewhat from the story that she had told the police, the EMT, and the coroner. Because of the suspicious circumstances of their father’s death, the children sought a court order for an autopsy. Mrs. Nicholson, who was opposed to the idea, called the prosecutor in an effort to convince him not to seek the order.

The autopsy and pathology report revealed the apparent cause of death was the combination of the ethylene glycol and the tolbutamide, and the location of these substances in certain organs indicated that they were ingested no more than twenty-four hours prior to death.

After the results of the autopsy were obtained, further investigation revealed that Mrs. Nicholson was the beneficiary of a $100,000 policy on Mr. Nicholson’s life and was the beneficiary of his will. Greenville, Mississippi, lawyer Steve Thomas, who was one of the witnesses who said Mr. Nicholson had said he was unhappy in his marriage and intended to end it, had prepared wills for the Nicholsons in 1988. Mrs. Nicholson was to receive Mr. Nicholson’s property if she survived him, and vice-versa, with their children as secondary beneficiaries. It was also discovered that she continued paying the insurance premiums after he had stopped making payments in May 1992 due to the financial difficulties of the company issuing the policy.

1. Jurisdiction

Mrs. Nicholson argues that the time Mr. Nicholson ingested the poisons was not definitely established, thus there is no evidence that the alleged murder took place in Searcy County.

Article 2, Section 10, of the Constitution of Arkansas states, in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed . . . .”

Arkansas Code Ann. § 16-88-108(c) (1987) provides:

Where the offense is committed partly in one county and partly in another, or the acts or effects thereof, requisite to the consummation of the offense occur in two (2) or more counties, the jurisdiction is in either county.

The only evidence Mrs. Nicholson cites to support her argument is the testimony of Dr. Timothy Hayne, the forensic pathologist who performed the autopsy on Mr. Nicholson. She argues that Dr. Hayne testified that ingestion of the lethal chemicals occurred “near” twenty four hours prior to death, and that the Nicholsons were at the motel for only twelve hours. Based on that evidence, she contends the ingestion of the ethylene glycol and tolbutamide must have occurred before the couple reached Searcy County.

Dr. Hayne’s testimony was that Mr. Nicholson ingested the chemicals within twenty-four hours or less of his death, and not that it was at least twenty-four hours before, as Mrs. Nicholson suggests. Dr. Hayne testified that ethylene glycol is processed by the body in at least three stages, and that each stage indicates the approximate time the substance has been in the person’s system. Mr. Nicholson had not reached the elimination phase or final stage which would have occurred at least one day after ingestion. From this finding, Dr. Hayne was able to testify with reasonable certainty that Mr. Nicholson had ingested the chemicals within twenty-four hours of his death. In addition, he testified that death could occur at any of the three stages of ingestion of ethylene glycol, and that the effects of this substance are enhanced somewhat by the presence of tolbutamide.

The State need not prove jurisdiction “unless evidence is admitted that affirmatively shows that the court lacks jurisdiction.” Ark. Code Ann. § 5-1-111(b) (Repl. 1993). Before the State is called upon to offer any evidence of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986); Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979). No such positive evidence was presented.

2. Hearsay

Mrs. Nicholson contends the Trial Court erred in admitting statements to the effect that Mr. Nicholson was planning to divorce her. She argues the statements should not have been found to fall within the state-of-mind exception to the hearsay rule.

Rule 803 of the Arkansas Rules of Evidence provides, in part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
* * *

Mrs. Nicholson contends this rule applies only to “then existing mental, emotional, or physical conditions ...,” and not the intentions of the declarant. She also argues that the last sentence of the exception limits the admissibility of statements concerning intent, plan, or motive to matters involving the declarant’s will.

The only basis for Mrs. Nicholson’s argument on this point is her interpretation of the language of the state of mind exception, and no authority is cited in support of it. As can be seen from the text quoted above, her argument is without merit because it is clear that the admissibility of statements of intent, plan, or motive are not limited to matters concerning the declarant’s will. Rather, only statements of memory or belief are limited by the last clause of the exception.

The case law involving the state of mind exception indicates that it applies to testimony concerning the victim’s intent to do something in the future. State v. Abernathy, 265 Ark. 218, 577 S.W.2d 591 (1989); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

In her brief, Mrs. Nicholson mentions, almost as an aside, that there was no showing that she was aware of any intention on Mr. Nicholson’s part to divorce her. Relevancy of the statements about divorce was, however, not the basis of the objection made to the Trial Court, and we thus do not consider it. An appellant may not change the basis for her objection on appeal. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).

3. Expert testimony

Mrs. Nicholson contends the Trial Court erred when it allowed expert testimony from Spring Lutz, the EMT who was called to treat Mr. Nicholson the morning he died. She contends the prosecution violated Rule 17.1 of the Arkansas Rules of Criminal Procedure by failing to disclose the intention to have Ms. Lutz testify as an expert. Rule 17.1(a)(iv) requires the prosecutor to disclose to defense counsel “any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations, scientific tests, experiments or comparisons.”

Ms. Lutz’s statement had been given to defense counsel by the prosecutor. When Ms. Lutz was asked by the prosecutor to say how long she thought Mr. Nicholson had been “down,” apparently meaning “dead,” defense counsel objected on the basis that he had not been given information to the effect that Ms. Lutz was to testify as an expert with respect to the time of death. The objection was overruled, but the Trial Court stated Ms. Lutz would not be allowed to testify as an expert until qualified. The prosecutor proceeded to qualify her, and defense counsel stated he would have no objection to her testifying as an expert within the area the prosecutor said he planned to examine her.

Ms. Lutz then proceeded to testify that she had arrived at the motel about four minutes after receiving the emergency call which was relayed from the Sheriff’s Office. She found a cold body with blood pooling which indicated Mr. Nicholson had been dead “quite a while” and more than the ten minutes or so which would have been consistent with Mrs. Nicholson’s testimony.

When the issue arose, defense counsel was given an option to interview Ms. Lutz before proceeding but did not respond to the offer from the Trial Court. In addition, there was ample testimony about the time of Mr. Nicholson’s death given by the examining pathologist. When testimony has not been properly disclosed by the prosecution, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). There was ample testimony, including the estimations of the forensic pathologist, that indicated the time of death. There was no undermining prejudice in this case.

4. Rule 4-3(h)

Pursuant to Arkansas Supreme Court Rule 4-3(h) all rulings adverse to the defendant have been reviewed. No prejudicial error has been found.

Affirmed.


author: Donald L. Corbin, Justice.

text:
    IN THE MATTER OF THE GUARDIANSHIP OF William VESA, An Adult Incapacitated Person Helena M. Lairamore, Appellant

    94-827
    892 S.W.2d 491
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Karr, Huthinson & Stubblefield, P.A., by: Michael E. Stubblefield, for appellant.

      Morril Harriman, Jr., for Citizens Bank & Trust Co. of Van Burén, Arkansas.

      Bethell & Cromwell, by: Bruce H. Bethell, for Alex Vesa, Jr.

      Paul R. Post, Guardian of the Person in Succession.
   Donald L. Corbin, Justice.

Appellant, Helena M. Lairamore, is the former guardian of the estate and person of the ward, William Vesa, an adult incapacitated person. Appellant appeals three orders of the Crawford County Probate Court: (1) order entered December 29, 1993 removing her as guardian of the ward’s estate, (2) order entered February 8, 1994 removing her as guardian of the ward’s person, and (3) order entered June 30, 1994 denying her motion for stay pending appeal, motion to reconsider previous rulings, and denying her effort to show cause why she should not be held in contempt of court for alleged failure to comply with court orders. We affirm the probate court’s judgment in part, and dismiss the appeal in part.

The ward in this case, William Vesa, lived a reclusive life with his father, Alexander Vesa, on a nine-acre farm in Crawford County. On September 4, 1992, Alexander Vesa died intestate, survived by two sons: William and Alexander Vesa, Jr. (Alex), and two daughters: appellant and Patricia Taylor (Patricia). In addition to their inheritance from the decedent’s probate estate, William and Alex, who had owned the farm jointly with the decedent as joint tenants with rights of survivorship, received that property outside probate. William’s inheritance and interest in the farm ultimately constituted his guardianship estate which was valued in the initial estate inventory at $140,893.86.

On February 2, 1993, appellant petitioned the probate court to establish a guardianship for William’s estate and person and to appoint her as guardian. A hearing was conducted. On May 6, 1993, the court filed an order finding that William was an incapacitated person in need of a guardianship for his estate and person. Over Alex’s objection, the order confirmed appellant as the initial guardian of both.

On December 29, 1993, the court filed an order removing appellant as guardian of William’s estate, appointing a local bank as successor guardian of the estate, and confirming that appellant would continue to serve as guardian of William’s person. The order also directed appellant to file her final accounting of the guardianship estate and to transfer the assets to the bank, as the successor guardian of William’s estate. From this order, appellant filed her first notice of appeal in January 1994.

On February 8, 1994, the court filed an order removing appellant as guardian of William’s person, and appointing William’s guardian ad litem, attorney Paul Post, as successor guardian of William’s person. In this order, the court found that appellant had failed to comply with its December 1993 orders to file her final accounting of the guardianship estate and to transfer its assets to the bank, and directed appellant to appear and show cause why she should not be held in contempt for this noncompliance. From this order, appellant filed her second notice of appeal in February 1994.

Pursuant to Ark. Code Ann. § 28-1-116 (1987 & Supp. 1993), a right to review by this court lies from all probate court orders, other than an order removing a fiduciary for failure to give a new bond or render an accounting required by the court, or an order appointing a special administrator. Section 28-1-116 (a) and (b). Section 28-1-116(g) also states that the law and rules applicable to appeals from equity courts apply equally to appeals from probate court, except as otherwise provided in the probate code. This court has stated that Rule 2 of the Arkansas Rules of Appellate Procedure preserved the statutory rights of appeal which were in existence at the effective date of the appellate rules, July 1, 1979. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994). These preserved rights of appeal include those granted under section 28-1-116, which was enacted in 1949. Id.

Our jurisdiction of this appeal is proper pursuant to section 28-1-116 and Ark. Sup. Ct. R. l-2(a)(3), except for that part of-the appeal taken from the order entered February 8, 1994 removing appellant as guardian of William’s person for her failure to comply with its order to render an accounting and transfer the guardianship assets. Section 28-1-116(b). Therefore, we dismiss that part of the appeal taken from the probate court’s order entered February 8, 1994 removing appellant as guardian of William’s person. See In the Matter of the Estate of McLaugh lin, 306 Ark. 515, 815 S.W.2d 937 (1991) (per curiam) (dismissing appeal from order refusing to appoint a special administrator, for lack of an appealable order). We proceed to address appellant’s other arguments for reversal.

This court reviews appeals from probate court de novo upon the record as abstracted. Clardy v. Williams, 319 Ark. 275, 890 S.W.2d 276 (1995). Absent clear error, we do not reverse the probate court’s order. In Re Estate of Spears, 314 Ark. 54, 858 S.W.2d 93 (1993).

FIRST POINT OF APPEAL

Appellant’s first point of appeal is that the order removing her as guardian of William’s estate entered December 29, 1993 is erroneous in both form and substance. Essentially appellant argues the court erred, first, because it never gave her the requisite opportunity to appear and show cause why she should not be removed, pursuant to Ark. Code Ann. § 28-48-105(a)(2) (1987 & Supp. 1993), and, second, because none of the grounds for removal of a guardian, as set forth in section 28-48-105(a)(l), were proved or are supported by the evidence.

Arkansas Code Annotated § 28-65-219(b) (1987) states that a guardian may be removed “on the same grounds and in the same manner as provided in § 28-48-105 for the removal of a personal representative.” Section 28-48-105, in turn, provides in pertinent part:

(a)(1) When the personal representative becomes mentally incompetent, disqualified, unsuitable, or incapable of discharging his trust, has mismanaged the estate, has failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be a resident of the state without filing the authorization of an agent to accept service as provided by § 28-48-101(b)(6), then the court may remove him.
(2) The court on its own motion may, or on the petition of an interested person shall, order the personal representative to appear and show cause why he should not be removed.

In this case, the probate court clearly acted on its own motion, and in the absence of a petition of any interested person, in removing appellant as guardian of William’s estate. A plain reading of section 28-48-105 authorizes such action on the court’s own motion, provided the removal order complies otherwise with the statute’s requirements.

We find no clear error was committed in removing appellant as guardian of William’s estate. We find that the section 28-48-105(a)(2) show cause requirement was substantially complied with. We find that the record supports appellant’s removal on the statutory ground of “unsuitability” based on the court’s finding of family friction, which adversely affected the guardianship estate’s administration. Section 28-48-105(a)(1).

Our de novo examination of the record shows that the probate judge first addressed the issue of removing appellant as guardian of the estate in his letter, dated October 26, 1993, to all counsel of record. The probate judge there stated:

Another suggestion that I would pass on for your consideration and that is that I believe that under the circumstances, it might be better for everyone concerned if a bank was appointed as Guardian of the Ward’s Estate. They are better equipped to manage the same and pay the bills and this being a neutral Guardian, it would eliminate any family friction relative to the Ward’s Estate. [Appellant] could continue to be Guardian of the Person, if she so desired, but I think the bank could function much better with regard to the objectives of the Guardianship, and that is to preserve, conserve, and protect the Ward’s Estate for as long as it is possible.

In this letter, the probate judge also acknowledged receipt of a proposed order submitted by appellant for a petition which she had filed and which was then pending before the court for authority to sell stock and pay expenses of the ward; the probate judge directed the parties to review the pleadings. The probate judge concluded his letter by stating “the Court will set this matter for a short conference or hearing on its next Court day at Van Burén, so that the matters can be considered at that time.” In her letter of reply to the probate judge and all counsel of record, dated November 2, 1993, appellant responded negatively and at length to the judge’s suggestion to remove her as guardian of William’s estate.

Proceeding without an intervening conference or hearing, the probate court then filed an order on November 29, 1993 authorizing a partial sale of guardianship estate stock and payment of certain guardianship expenses by appellant. The order concluded “this cause is continued for further hearing to put this Guardianship case in proper perspective and to eliminate as much expense as possible herein, excepting for the care, maintenance and support of the Ward.” The order then designated December 7, 1993 for a hearing. The probate judge mailed a copy of this order to all counsel of record by cover letter dated November 23, 1993.

On December 7, 1993, the hearing was conducted and attended by appellant, Alex and William, each accompanied by his or her counsel of record. At the beginning of the hearing, the probate judge stated that the purpose of the hearing was to address several matters, including the judge’s opinion that a bank should be appointed as guardian of the estate. Appellant testified at length, principally regarding the guardianship estate’s receipts and expenditures. She also testified that she was willing to continue serving as guardian. At the conclusion of the hearing, the probate judge stated in open court:

The Court is going to appoint a bank as guardian of the estate of the ward, because that is in the best interest of the ward and everybody else concerned. The bank is neutral and they are well capable of handling these matters, and it will be a lot less expensive than what we have been undergoing in the past. It’s in the ward’s best interest to preserve, conserve and protect in that way, and also it will eliminate any possible friction from the family members because you folks need to get along with each other, speak with each other, communicate, be cordial and be kind, and not have trouble. And I think that this proceeding has not been helping you in that regard, so that’s all the more reason to have a neutral take care of matters of that kind.

On December 29, 1993, the probate court filed an order dated December 7, 1993 which stated the probate judge’s intention to remove appellant as guardian of the estate, in these words:

That in an effort to eliminate any possible future friction among the family members concerning this case, it is the Court’s considered opinion that it is in the best interests of the ward and everyone concerned that a local bank be appointed guardian of the estate of the ward, and that a bank will be a neutral party well capable of handling the ward’s financial interests. When such a bank has been appointed by the Court, the guardian shall file herein her final accounting.

Also on December 29, 1993, the probate court filed an order dated December 28, 1993 which removed appellant as guardian of William’s estate and appointed her successor. With respect to the reason for the change of fiduciary, this order simply stated it was the court’s considered opinion that it was in the ward’s best interest and welfare to have a bank serve as guardian of the estate.

Our probate code contains no definition of the term “unsuitable.” However, in Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959), we quoted, with interest, the definition of this term given by the Supreme Court of the State of Massachusetts, as follows:

“The statutory word ‘unsuitable’ gives wide discretion to a probate judge. . . . Such a finding may also be based upon the existence of an interest in conflict with his duty, or a mental attitude toward his duty or toward some person interested in the estate that creates reasonable doubt whether the executor or administrator will act honorably, intelligently, efficiently, promptly, fairly, and dispassionately in his trust. It may also be based upon any other ground for believing that his continuance in office will be likely to render the execution of the will or the administration of the estate difficult, inefficient or unduly protracted. Actual dereliction in duty need not be shown.”

Id. at 205, 328 S.W.2d at 574 (quoting Quincy Trust Co. v. Taylor, 317 Mass. 195, 57 N.E.2d 573 (1944)). In Omohundro v. Erhart, 228 Ark. 910, 311 S.W.2d 309 (1958), we affirmed a probate court’s order removing and replacing sibling co-guardians upon several statutory grounds, including “unsuitability,” where the evidence showed their continuous bickering and failure to agree over the twelve-year period in which they served as their sister’s co-guardians was beyond reconciliation.

We find the record in this case is replete with evidence of an adversarial sibling relationship which existed between appellant and Patricia vis-a-vis Alex, and the negative impact of that “family friction” upon the administration of William’s guardianship estate. In particular, we note the following conflicts between the siblings during the few months of appellant’s service as guardian of the estate: (1) Alex’s differences with his sisters regarding William’s continued residence at the farm versus a group residential treatment center, (2) Alex’s objection to a partition sale of the nine-acre farm petitioned for by appellant as William’s guardian, and (3) the joint motion for injunction filed by appellant and Patricia, and granted by the court, instructing Alex to refrain from harmful actions toward William. We also observe that the probate court, acting on its own motion prior to appellant’s removal as guardian of William’s estate, indefinitely continued the appointment of William’s guardian ad litem in light of this family friction.

On these facts, we conclude the probate judge committed no clear error in removing appellant as guardian of William’s estate and appointing a neutral successor.

SECOND POINT OF APPEAL

Appellant’s second point of appeal is that the probate court erred in refusing to partition the farm “from the outset of the case,” and in refusing to allow the guardianship estate recovery of one-half of the attorney fees for partition from Alex, as the co-owner. Appellant fails to identify any order or ruling in the record which refuses to partition the farm, or refuses to allow the guardianship estate recovery of the described attorney fees. We find no notice of appeal filed from any such ruling. Hence this point of appeal is not properly before this court and will not be addressed.

THIRD POINT OF APPEAL

Appellant’s third point of appeal is that the probate court erred in denying her motion for stay pending appeal, motion to reconsider previous rulings, and denying her effort to show cause why she should not be held in contempt of court for her alleged failure to comply with court orders. This point of appeal arises from the probate court’s rulings which were rendered from the bench in open court on April 25, 1994, and filed of record by order entered on June 30, 1994. Appellant filed her notice of appeal from these rulings on April 28,1994. Therefore the notice of appeal was filed prematurely. In consequence, any appeal from the June 30, 1994 order was not properly perfected for this court’s review, and must be dismissed. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992).

In summary, we affirm the probate court’s order entered on December 29,1993 removing appellant as guardian of the ward’s estate, and dismiss other arguments raised in this appeal without considering their merits.


text:
    Eric WASHINGTON v. STATE of Arkansas
    CR 94-1096
    892 S.W.2d 505
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Daniel D. Becker and Terri L. Harris, for appellant.

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

Appellant, Eric Washington, appeals a judgment of the Garland County Circuit Court convicting him of two counts of delivery of a controlled substance, fining him $10,000, and sentencing him to forty years in the Arkansas Department of Correction. We have jurisdiction of this case because a cumulative sentence of more than thirty years was imposed. Ark. Sup. Ct. R. 1-2(a)(2). Appellant asserts two points of error. We find no merit and affirm the judgment.

The state presented evidence that on two occasions appellant sold rock cocaine to an agent of the Arkansas State Police, Tommy Pope, who was working with a confidential informant. Sergeant Pope testified appellant first sold him five rocks of cocaine for $100 on December 2, 1992 and then sold him $50 worth of cocaine on December 7, 1992. Kim Brown, a chemist from the Arkansas State Crime Laboratory, testified she analyzed both envelopes of rocks received from Sergeant Pope and determined them to be of a cocaine base weighing 0.664 gram and 0.319 gram. After hearing the foregoing evidence, the jury returned verdicts of guilty on both counts of delivery.

As his first point for reversal, appellant contends the trial court erred in not directing a verdict in his favor. Appellant timely moved for a directed verdict on the specific grounds that the state had not proven cocaine was a Schedule II controlled substance. The trial court denied the motion, stating that it was taking judicial notice that cocaine was a narcotic and a Schedule II controlled substance. On appeal, appellant argues the particular classification of a controlled substance is an element of the state’s proof. This argument is wholly without merit.

Our law is well-established that courts may take judicial notice of agency regulations adopted pursuant to law, and that it is not necessary to formally introduce the regulations into evidence for the court to do so. See, e.g., Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989) (citing State v. Martin and Lipe, 134 Ark. 420, 204 S.W. 622 (1918)) and Seubold v. Fort Smith Special Sch. Dist., 218 Ark. 560, 237 S.W.2d 884 (1951)). Arkansas courts have long taken judicial notice of the State Health Department’s regulations classifying controlled substances into particular schedules. See, e.g., Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982). As observed in Johnson, the Director of the State Health Department is given authority to designate controlled substances pursuant to Ark. Code Ann. § 5-64-201 (Repl. 1993). Section 5-64-201 requires the Director’s schedules to be adopted in accordance with the Arkansas Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201 to -214 (Repl. 1992 & Supp. 1993). Thus, the schedule of controlled substances is a regulation promulgated by a state agency pursuant to statute and in accordance with state procedural requirements. The schedule or agency regulation is a part of the substantive law the trial court must determine and then apply to the facts of the case before it. See generally, 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 200[02] (1994).

Appellant acknowledges that courts have taken judicial notice of a rule or regulation, but contends the case of Lively v. State, 25 Ark. App. 198, 755 S.W.2d 238 (1988), changed that practice so that a court can take judicial notice of the classification of controlled substances only at a bench trial. We observe that Lively was indeed a bench trial case, however, the court of appeals did not limit its ruling to bench trials only. Moreover, taking judicial notice of a regulation is akin to taking judicial notice of a statute or other form of law upon which the judge instructs a jury. Therefore, we see no reason for distinguishing jury trials from bench trials when taking judicial notice of a regulation.

The state offered evidence, via the testimony and report of Kim Brown, that the substance sold to Sergeant Pope was cocaine. The current regulation classifies cocaine as a Schedule II controlled substance. Accordingly, the trial court did not err in taking judicial notice of that clássification of cocaine and, therefore, did not err in denying appellant’s motion for directed verdict.

As his second point for reversal, appellant argues the trial court erred in denying his request to instruct the jury on the lesser included offense of possession of a controlled substance. Appellant proffered an instruction on the offense of possession which the trial court refused, stating there was no evidence to support the giving of such an instruction. Appellant relies on Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981), and argues that since this court has previously held that possession is a lesser included offense of delivery because one cannot deliver a controlled substance without exercising dominion and control over it, it was error to refuse the proffered instruction on possession in this case.

The instant case is similar to Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), in that the charge and proof by the state were for the actual delivery of a controlled substance, and the defendant did not testify. As this court stated in Whitener, it is possible that the jury could have disregarded the proof of delivery and acquitted the defendant; however, based on the particular proof presented, no rational basis for such a verdict exists. It is not error to refuse an instruction when no rational basis supports the giving of the instruction. Whitener, 311 Ark. 377, 843 S.W.2d 853 (citing Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992)). Accordingly, the trial court did not err in refusing the proffered instruction on possession.

The judgment is affirmed.


author: Robert L. Brown, Justice.

text:
    Russell J. BYRNE v. Glen EAGLE and Arkansas Development Finance Authority
    94-677
    892 S.W.2d 487
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Trotter Law Firm, P.A., by: Russell J. Byrne, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, a Limited Co., for appellees.
   Robert L. Brown, Justice.

On February 25, 1994, appellant Russell Byrne, acting on his own behalf and as a member of his law firm and the public, served a Freedom of Information request on appellee Arkansas Development Finance Authority and requested information concerning the building of a multi-purpose events center in North Little Rock. It subsequently became known that the interested party was Arkansas Cultural Complex Study, Inc. On February 28, 1994, ADFA responded to the request in the form of a letter from appellee Gene Eagle, Vice President of ADFA. The response stated that the information requested by Byrne was exempt from disclosure pursuant to Ark. Code Ann. §§ 15-5-409(b) (Repl. 1994) and 25-19-105 (Supp. 1993). Regarding the issue of whether an application had been made, Eagle wrote:

While I have been reviewing data and conducting discussions with several parties concerning the project described in your letter, we do not have a formal application relating to the proposed project. After we received your inquiry, we notified those parties and they instructed us not to release any information. Additionally, until there has been a review of an application by ADFA which results in a recommendation that the application be approved, the application, all supporting documents, instruments, proposed contracts, estimated costs or other evidence submitted therewith shall be confidential and shall not be open to public review.

On March 3, 1994, Byrne wrote again and stated that Ark. Code Ann. § 15-5-409(b) only exempted applications and documents submitted with applications from public review. He contended in the same vein that § 15-5-409(b) made no mention of documents submitted to the ADFA without an application. He requested once more that Eagle make the submitted information on the multi-purpose events center available for his inspection. Eagle again denied the request on grounds of the statutory exemption.

On March 9, 1994, Byrne filed suit and alleged that Eagle’s and ADFA’s refusal to supply him with the data was violative of the Freedom of Information Act, codified at Ark. Code Ann. § 25-19-101 etseq. (Repl. 1992 & Supp. 1993). In his complaint, he asked for a declaratory judgment and injunctive relief and sought all documents relating to the development of a multi-purpose events center in North Little Rock. Eagle and ADFA answered and affirmatively pled that the documents requested were exempt from disclosure under Arkansas law. Following a hearing on the matter, the trial court entered an order dismissing Byrne’s complaint.

The one argument made by Byrne on appeal is that no application had been made to Eagle and ADFA on this project; thus, the documents submitted in connection with the multipurpose events center in North Little Rock are subject to disclosure under the Freedom of Information Act. We first address the Act itself. Its keystone provision reads:

Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.

Ark. Code Ann. § 25-19-105(a) (Supp. 1993). Hence, it is clear that there must be a specific statutory mandate to exempt public records from disclosure. See Legislative Joint Auditing Committee v. Woodsey, 291 Ark. 89, 722 S.W.2d 581 (1987).

The Freedom of Information Act is broadly construed in favor of disclosure, and exceptions to the Act are narrowly construed in order to counterbalance the self-protective instincts of the governmental bureaucracy. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). The intention of the General Assembly to exclude records from inspection must be clear. Id. If the intention of the General Assembly to impose confidentiality is doubtful, openness is the result. Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). At the same time, we will balance the laudable interest in favor of disclosure with the intent of the General Assembly and do so with a common sense approach. Sebastian County Chapter of the American Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992); Simmons First Nat’l Bank v. Liberty Mut. Ins. Co., 282 Ark. 194, 667 S.W.2d 648 (1984).

The exemption from the FOIA claimed by the appellees is set out in Ark. Code Ann. § 15-5-409 (Repl. 1994), which reads in relevant part:

(a) All applications filed with the Arkansas Development Finance Authority under the provisions of this sub-chapter shall first be reviewed by the appropriate designated staff officials of the authority or by a committee consisting of members of the authority for preliminary review and recommendation prior to being submitted for consideration by the authority.
(b) All applications submitted to the authority and all supporting documents, instruments, proposed contracts, estimated costs, or other evidence submitted therewith shall be confidential and shall not be open to public review except as provided in this subchapter, and all staff meetings or meetings of the review committee of members of the authority established for the purpose of giving preliminary review of the applications shall be confidential and shall not be open to the public.
(c) Upon conclusion of the preliminary review of each request for a guaranty hereunder, if the request for guaranty is submitted to the authority with a recommendation that it be approved, the application and all supporting documents, including the findings and the recommendations resulting from the staff or review committee thereof, shall be an open public record available for inspection during all regular business hours.
(d) In the event that an application from a developer requesting a guaranty hereunder is not recommended for approval by the authority under this subchapter, that application and all supporting documents, including all findings and recommendations in regard thereto by the staff or review committee, shall continue to be confidential and not open to public inspection.
(e) The developer shall be notified in writing of any staff or review committee determination that the application is not being submitted to the authority with a recommendation that it be approved, which notice shall advise the developer that the application will be kept confidential unless the developer shall, within thirty (30) days from the date of receipt of the written notice, file a petition with the authority requesting that the authority hold a hearing in regard to the application, in which event the application and all supporting documents shall become public information available for public inspection.

Byrne makes two salient points in his argument. First, he underscores the fact that Eagle himself admitted that no formal application had been made by the Arkansas Cultural Complex Study, Inc. Eagle stated this in his letter to Byrne on February 28,1994, and then reiterated it at the hearing. Next, Byrne alludes to § 15-5-409(b) itself which clearly requires an application before confidentiality pertains.

Eagle testified at the hearing that ADFA was created as a state finance authority for housing, economic development, health care, education, and community developments. The ADFA Bond Guaranty Program, he stated, was established in 1985 to provide credit support for any bond issue approved by the authority. Many of the projects and companies that the ADFA deals with were not strong enough financially to obtain access to the bond market, he explained, and the State guaranty provided those entities with access to that market. He testified that only ongoing entities are required to submit written applications. Start-up ventures, like the one in question, were only required to submit a business plan projection and performance studies, not a written application.

Eagle then went on to say that the Arkansas Cultural Complex Study, Inc. submitted an application for the multi-purpose events center in question. He testified that the application was in the form of a proposal “which detailed what it was they were trying to do.” Once the proposal was submitted, ADFA started gathering additional information, including a business plan, and conducting its own research. Eagle added that ADFA did not have enough information at the time of his testimony for a complete review. He stated that the information compiled thus far was part of the application process. Once that application is complete, according to Eagle, ADFA will condense the data into report form and submit it to the review committee of the board for review of the application. If the recommendation is for approval, then the application and all supporting documents are open for public inspection and a public hearing on the matter is held.

At the conclusion of the testimony, the trial court ruled:

Well, it seems to me, from what I have heard here today, that there are different methods of making applications, and Mr. Eagle has testified that an application has been made and that, according to the statute, until such time as that application is approved, I believe that the confidentiality provision of the statute would apply and that those records should be kept confidential until such time as the public hearing and, as I understand the process, once that has been approved, then that does become a matter of public record and you are welcome to it at that point... That is a working type paper until such time as it is approved; therefore, it is protected by the guaranty provision, and apparently that’s what happened in it and, apparently, there is no real case law on this particular point.

This case turns on the narrow question of whether what the interested party has submitted to ADFA constitutes an “application” for purposes of the statutory exemption. According to Black’s Law Dictionary, p. 98 (6th Ed. 1990), an “application” can mean virtually anything:

A putting to, placing before, preferring a request or petition to or before a person. The act of making a request for something. A petition.

Eagle of ADFA appeared to state it both ways. He initially wrote Byrne in February 1994 that no formal application had been made, albeit information had been received. At the hearing, however, Eagle testified that saying no “formal” application had been made was a poor choice of words and that what he meant was that ADFA did not have a “complete” application. He made these additional comments, in response to questioning by Byrne, who served as his own counsel:

BYRNE: Okay. And you are stating that this is all like an informal process that goes on for a little while so there has been no formal written application?
EAGLE: I have a great deal of written material that they have given me.
BYRNE: But no formal things such as application on the top or anything like that designating an application?
EAGLE: You can see the file over there is pretty extensive.
BYRNE: That is not my question. You have no written document on the top of it?
EAGLE: I have a proposal which has our name on it which says we will loan the money or guarantee money for them, which they have prepared.
BYRNE: So I take that as a no?
EAGLE: I think it is a definite yes, we have an application.

The ruling by the trial court that the records on the project constituted an application makes good, practical sense. We are not of a mind to limit the term “applications” solely to documents titled as such and signed by interested parties under oath, as Byrne suggested at oral argument. The explanation by Eagle of the different application procedures followed by ADFA for an existing business seeking a loan guarantee as opposed to a “start-up” business with no performance record seems entirely, plausible. For us to treat the two application processes differently for purposes of public disclosure would render inconsistent and absurd consequences. Moreover, it is clear beyond question that the intent of the General Assembly, was to keep the application process confidential during the preliminary stages until an approval recommendation had been made to the authority. Ark. Code Ann. § 15-5-409(c) (Repl. 1994).

The rationale behind the confidentiality in this context is legitimate. We can readily see how public disclosure of the disapproval of loan guarantees regarding new or existing businesses could adversely affect those concerns and chill the enthusiasm of future applicants who might otherwise wish to apply to ADFA for financial assistance. If a new venture is turned down for financial assistance by ADFA and that is made public, it could damage and impede the ability of the venture to obtain funding elsewhere. Certainly, the state has established a firm policy in protecting information pertaining to economic development, as expressed in another exemption to the FOIA concerning records kept by the Arkansas Industrial Development Commission. See Ark. Code Ann. § 25-19~105(b)(9)(B) (Supp. 1993); see also Watkins, J., Arkansas Freedom of Information Act, p. 122 (M & M Press 2d Ed. 1994).

In sum, we conclude that the term “applications” used in Ark. Code Ann. § 15-5-409(b) covers the proposal made by Arkansas Cultural Complex Study, Inc. From the colloquy quoted above, it appears that the proposal, business plan, and other supporting documents were in the courtroom at the time of the hearing. Neither party requested that the trial court inspect the ADFA file; nor did the trial court take it upon itself to examine the file to evaluate whether it comprised an application. That, without question, would have been preferable, and we have held that when an in camera review by the trial court is requested by a state agency, it must take place. Gannett River States Publishing Co. v. Arkansas Indus. Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990).

Here, as a result, we are limited to the facts before us and those facts are that a proposal for a loan guarantee supported by certain documentation was made to ADFA. Byrne does not contest that fact or contend that some of the documents in the ADFA file are not part of the application process for Arkansas Cultural Complex Study, Inc. His sole point is that there is no application form in the file, and the statutory exemption, as a consequence, does not apply.

In the past, we have determined the intent of the General Assembly in connection with FOIA requests and interpreted statutory exemptions accordingly. For example, we have held that the term “undisclosed” investigations included “ongoing” investigations. See Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990) (interpreting Ark. Code Ann. § 25-19-105(b) (1987)). We have further concluded that a statutory allusion to the working papers and correspondence of the “Attorney General” in an exemption to the FOIA referred to the office of Attorney General, including deputies and representatives, and not to one individual. See Bryant v. Mars, supra.

In the instant case, the issue boils down to whether a proposal for financial assistance is comparable to, or synonymous with, an application for such assistance. Partly, it is a question of semantics. We decline to distinguish an application for a loan guarantee from a proposal for a loan guarantee or to have this decision turn on whether a document is styled a proposal or an application. We conclude that the effect of both is the same. In deciding as we do, we consider this to be a common sense approach which gives effect to the unmistakable intent of the General Assembly.

Affirmed.


text:
    Charlie McKINNEY, Father of and Next Best Friend of Michael McKinney and Melissa McKinney v. Jimmy ROBBINS
    94-846
    892 S.W.2d 502
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Chet Dunlap, for appellants.

      Snellgrove, Laser, Langley, Lovett & Culpepper, by: Glenn Lovett, Jr., for appellee.
   Robert L. Brown, Justice.

The issue in this case concerns the interpretation of an Arkansas statute which deals with “domesticated animals” killed by dogs and the right to kill an offending dog after such an attack. See Ark. Code Ann. § 20-19-102(a)(1), (b)(2) (Repl. 1991). Summary judgment was entered in favor of appellee Jimmy Robbins, who killed appellant Charlie McKinney’s dog and who successfully raised the statute as a defense. McKinney now contends, first, that summary judgment was inappropriate because the statute cannot be used as a defense under the facts of this case, and, secondly, that a material issue of fact remains to be decided. We agree on the first point, and we reverse the order of summary judgment and remand the matter for trial.

On October 18, 1992, McKinney and his two children, Michael and Melissa McKinney, were the owners of a full-blooded Chow dog. On that same date, the dog was intentionally killed by Robbins, using a shotgun, when the dog ventured onto Robbins’s property. McKinney sued Robbins for outrageous conduct and asked for compensatory and punitive damages associated with the death of his dog. Robbins answered that the dog was vicious and had previously killed his cats and threatened his child and guests. Robbins added in his answer to an amended complaint that he was immune from a lawsuit under Arkansas law and was justified in the shooting because the dog was about to attack a member of his household.

Robbins next moved for summary judgment on the theory that he was justified in shooting the dog as a matter of law because it had killed two of his kittens a few days before he shot the dog. He cited as authority Ark. Code Ann. § 20-19-102(b)(2), which permits the owner of a domesticated animal to kill a dog which kills his domesticated animal. The trial court agreed and granted summary judgment in favor of Robbins and dismissed McKinney’s complaint. In the order, the court made these findings:

1. The affidavits and answers to interrogatories on file reflect that it is undisputed that the dog killed by defendant [Robbins] had killed one or more of defendant’s pet kittens several days before.
. 2. Defendant’s pet kittens were “domesticated animals” within the meaning of Ark. Code Ann. § 20-19-102(a)(1), so that defendant’s act of killing plaintiff’s dog was justified under Ark. Code Ann. § 20-19-102(b)(2).

For his first point for reversal, McKinney contends that pet kittens are not “domesticated animals” under the applicable statute and that the killing of his dog was, therefore, not justified. The controlling statute reads:

(a)(1) “Domesticated animals” includes, but is not limited to, sheep, goats, cattle, swine, and poultry.
(b)(2) Any person knowing that any dog has killed or is about to catch, injure, or kill any domesticated animal shall have the right to kill the dog, without in any way being liable to the owner of the dog in any courts of this state.

Ark. Code Ann. § 20-19-102 (Repl. 1991).

We begin by noting that the statute is ambiguous. Domesticated animals is a term which typically can include livestock or pets. Cats, for example, have been defined as domestic or domesticated animals. See generally Law As to Cats, 73 ALR2d 1032 (1960); The Random House Dictionary of the English Language, 324-25 (2d ed. 1987); see also Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994). The statute at hand, however, only provides examples of domesticated animals which are livestock, not domestic pets. It also states that the definition of domesticated animals is not limited by the specific examples of livestock given. The question then is whether the term “domesticated animals” is intended to include other livestock such as horses and mules or is it intended to embrace domestic pets such as kittens, hamsters, parakeets, and the like in addition to other livestock.

Robbins draws our attention to a 1914 case from the Maine Supreme Court and urges that the case is precedent for the case at bar. See Thurston v. Carter, 92 A. 295 (Me. 1914), True, the case did involve a Maine statute and facts where plaintiff’s fox hound had been killed by the defendant for taunting his cat, and the defendant was found to be free of liability. The statute in that case provided that dogs could be killed for worrying or killing “any domestic animal,” and the Maine court opined that a cat was a domestic animal. But the Maine statute did not contain the list of livestock that the Arkansas statute has. As a consequence, the ambiguity that exists in our statute was not an issue in the Maine case.

In construing an ambiguous statute, we have turned in the past to the doctrine of ejusdem generis. See Agape Church, Inc. v. Pulaski County, 307 Ark. 420, 821 S.W.2d 21 (1991); Woodruff v. Shockey, 297 Ark. 595, 764 S.W.2d 431 (1989). That doctrine applies when these conditions exist:

(1) The statute contains an enumeration of specific words; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration usually following it; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.

Id. We observed in Agape Church, Inc. that the doctrine was applicable whether the general reference in the statute is placed before or after the specific enumeration.

In the case at hand, the list of sheep, goats, cattle, swine, and poultry more than suggests a class of livestock, and the class is not exhausted by the enumeration. There is, too, a general reference to the inclusion of other non-listed domesticated animals which serves to supplement the enumeration. Nor do we ascertain a legislative intent to expand and extend the definition to domestic pets, a category into which cats and kittens clearly fall. On the contrary, the legislative history of § 20-19-102 which dates back to 1887 details enactments expanding on the list of specific animals but always including livestock. See Act 136 of 1887 (sheep); Act 155 of 1917 (adds goats); Act 393 of 1987 (adds cattle, swine, and poultry). The pattern of legislative acts appears to limit reprisals only to dogs which kill livestock.

There is a second rule of construction that assists in this case, and that is noscitur a sociis. Literally, the doctrine means “it is known from its associates,” and as practically applied, it means that a term may be defined by an accompanying word. Weldon v. Southwestern Bell Telephone Co., 271 Ark. 145, 607 S.W.2d 395 (1980). In Weldon, the issue was whether a statute which listed “maintenance of telephone lines, poles, and fixtures” applied to every kind of fixture such as water meters or only to telephone fixtures. We reversed the trial court and held that the context of the statute limited the term “fixtures” to telephone fixtures.

We also invoked the noscitur a sociis doctrine in a case where we interpreted the phrase “other public purposes” as used in a constitutional amendment for financing industrial development. McDonald v. Bowen, 250 Ark. 1049, 468 S.W.2d 765 (1971). In limiting the scope of the phrase, we said:

We are unwilling to lift words, “other public purposes,” from their context and take them to mean absolutely any conceivable public purpose, regardless of its connection with the rest of the Amendment.
In holding that the phrase, “other public purposes,” was not an open-end authorization of unlimited scope, we are influenced by two principles of interpretation. First, the rule of construction known as noscitur a sociis (It is known from its associates) requires that general language be construed to be comparable to the specific language of its context. Altus Cooperative Winery v. Morley, 218 Ark. 492, 237 S.W.2d 481 (1951). Here every other clause in the Amendment has to do with the attraction of new industry. In that context the reference to other public purposes may fairly be taken to mean those of the same nature as the enumerated ones, even though not specifically set forth.

250 Ark. at 1055, 468 S.W.2d at 769. In short, under the two principles of construction, we have looked either to the enumerated list or to the context of the law in interpreting the general language. We apply those principles in interpreting subsections 20-19-102(a)(l) and (b)(2), and hold that the term “domesticated animals” is limited to livestock and does not cover domestic pets. Thus, the statute does not provide a defense to Robbins, and the order of summary judgment must be reversed.

There is a practical aspect to our holding today. The genesis of the 1887 Act was manifestly a need to protect livestock in the form of sheep against marauding dogs. Sheep represented livelihood and a means of sustenance. The same is true of the other kinds of livestock added to the statute over more than a hundred years. To extend the definition of “domesticated animals” which is limited by its terms to examples of livestock to include pets would expand the effect of the Act far beyond what, we believe, was intended by the General Assembly.

Accordingly, we reverse the order of the trial court and remand this cause for trial. Because we reverse on the first point, there is no need to address the second point raised.

Reversed and remanded.


author: Andree Layton Roaf, Justice.

text:
    John CLAIBORNE v. STATE of Arkansas
    CR 94-661
    893 S.W.2d 324
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Clarence Walden Cash, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.'
   Andree Layton Roaf, Justice.

This is an appeal from a conviction on theft and burglary charges which questions only the sufficiency of the evidence. We affirm.

John Henry Claiborne, appellant, was working as a cashier at a Target store during Christmas, 1992, when he met Renee Davis. He gave her his number and asked her to call, which she did a few days later. She testified she had visited him on a few occasions but he had come to her apartment only once and had never been in the bedroom.

On March 23, 1993, Davis reported her apartment had been burglarized and electronics equipment had been stolen. The police came to investigate and discovered that entrance had been gained through a rear bedroom window. The police lifted palm prints from the interior sill of that window and got smudged finger prints from underneath the same interior sill. The investigator who collected them testified the palm prints were going forward, toward the inside of the apartment, consistent with those of someone gaining entrance into the apartment by climbing through the window from the outside.

Two of Davis’ neighbors told police they noticed a black Dodge Ram pickup parked in Davis’ parking spot on the day of the burglary, but neither of them could identify the driver. When Davis told police that Claiborne had a similar truck, the police got palm prints from him and found they matched those lifted from the sill at Davis’ home.

Claiborne had a jury trial and was convicted on the burglary and theft charges. He was determined to be an habitual offender and sentenced to 25 years and 10 years respectively.

On appeal Claiborne argues the evidence was insufficient to support the verdict, contending that palm prints alone are insufficient proof of guilt. He points out that he admitted at trial he was outside Davis’ apartment on the day of the burglary, but left when he found she was not home. He argues the only evidence tying him to the burglary was the palm prints which could have been placed there on a prior visit.

We do not reach the merits of the argument as appellant has failed to preserve the point for appeal. After the close of all the evidence and after the jury had been instructed, but before closing arguments, defense counsel asked if it was too late to renew his motions. The trial court said it would consider the motions as if they were timely and ruled they were denied. Closing arguments were then made and the jury was instructed to retire.

A motion for directed verdict must be renewed at the end of the “close of the case.” Ark. R. Crim. P. 36.21 (b). An attempt to renew a motion for directed verdict after the jury has been charged is not timely and is not in compliance with the rule. Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994); Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). Here, the motion to renew was made after the jury had been instructed, and was too late.

Affirmed.


text:
    Bruce MILHOLLAND v. STATE of Arkansas
    CR 94-605
    893 S.W.2d 327
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995
    [Rehearing denied March 27, 1995.]

      James B. Bennett, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., and Brenda Stewart, Rule XV Law Student, for appellee.
   Andree Layton Roaf, Justice.

This appeal is from a rape conviction and raises only one issue for review: the reliability of the identification of the appellant by the victim. We find no merit to the argument and affirm.

Appellant, Bruce Milholland, was charged with the rape of a 12 year old boy. The victim testified his attacker had taken him into some woods near a baseball park, forced him to perform oral sex, and threatened to kill him if he told anyone. The boy told his parents, and for the next two months they worked with police trying to find the attacker. The boy had given a detailed description to his father, who made a sketch from that description. The boy also viewed over 200 mug shots with the police, and accompanied his father on several occasions to view possible suspects his father had located. The victim was certain that none of those he saw was his attacker.

Two months after the attack, the father saw appellant outside an auto parts store and thought he matched his son’s description. He left, picked up his wife and son, and drove back to the store. The boy identified appellant from their car. A policeman came on the scene and all four went into the store to view appellant. The victim identified appellant positively at that time and appellant was arrested. A police lineup was held a few hours later and appellant was again identified by the boy as the attacker.

Appellant filed a suppression motion, claiming the identification at the auto parts store was unreliable because the father had coerced his son into making the identification. He also argued the subsequent lineup should be suppressed. The trial court disagreed and denied the motion. Appellant was found guilty and sentenced to 40 years. Appellant appeals from that judgment.

Appellant argues it was error for the trial court to refuse to suppress testimony concerning the victim’s out-of-court identifications. He makes four points in support of this argument: 1) the victim’s out-of-court identification should have been suppressed based on its unreliability; 2) appellant was not represented by counsel at the police lineup; 3) there was an impermissible delay in taking appellant before a magistrate; and 4) The arrest was unlawful.

1. The victim’s identification was unreliable: the appellant argued below that the identification in the auto parts store was suggestive, made under coercion from the victim’s father and was otherwise unreliable. The trial court found there was no state action in the father’s conduct, and, therefore, appellant was not entitled to due process guarantees prohibiting suggestive or otherwise tainted pre-trial identifications. The trial court further found that even if there were problems with the procedures, the testimony was admissible if the identification was otherwise reliable. The trial court reviewed the evidence and found it was.

Appellant does not argue the point on state action but contends that reliability is the linchpin for determining admissibility of an identification and reliability in this case was lacking.

It is for the trial court to determine if there are sufficient aspects of reliability present in an identification to permit its use as evidence. It is then for the jury to decide what weight that identification testimony should be given. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). We do not reverse a trial court’s ruling on the admissibility of an identification unless it is clearly erroneous. We do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Id. Matters of credibility and conflicts in testimony are for the trial court and those decisions will not be disturbed on appeal.

The factors we look at when considering the reliability of an identification are stated in Hays v. State, 311 Ark. 645, 846 S.W.2d 182 (1993). Those factors include and the evidence in this case provides:

(1) Opportunity to view the suspect: the victim testified the sun was starting to set at the time of the attack and he had at least 30 minutes to view his attacker. The trial court found, and we agree, that this was ample opportunity for the victim to view his attacker given the nature of the crime. The victim also testified he had previously seen appellant at a video store and had played pool with him. Previous viewings of the perpetrator, apart from observation during the offense involved, are considered independent recognitions and will strengthen a subsequent identification. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). (2) Accuracy of the description: the boy’s description of appellant on the day of the attack was corroborated by a witness who had seen appellant the same day. (3) Prior misidentification: the victim had viewed over 200 mug shots and had viewed several suspects during the two months before appellant’s arrest, yet he dismissed all of them with no difficulty, as not being the prepetrator. (4) Level of certainty demonstrated at confrontation: the victim’s testimony was one of certainty in his identification. He testified at trial with regard to his identification of appellant at the store:

[When] I heard his voice, I knew it was his voice. I knew it was him and I said “yes.” He was wearing the boots he wore the same night that it happened ... I knew it from his face and his voice and the boots.
Dad asked me twice whether that was him. He asked me once and he was looking down and that’s when I said, “Wait a minute” so I could be positively sure it was him. And then he looked up and spoke and I knew it was him right then.

(5) Failure of witness to identify the defendant on a prior occasion: there was no failure by the victim to identify appellant on an earlier occasion. (6) Lapse of time between alleged act and the identification: there was a lapse of about two months between the offense and the identification. During that time the victim viewed and eliminated many suspects before he identified appellant. Given the certainty of the victim’s identification in that context, the nature of the crime and the close contact between the victim and the perpetrator, this time period was of limited significance.

The totality of the circumstances supports the reliability of the victim’s identification and we cannot say the trial court’s ruling was clearly erroneous on this point.

2. Appellant was not represented by counsel at the police lineup: appellant correctly states that a physical lineup after the initiation of adversarial proceedings is a critical stage of the proceedings and the accused is entitled to have counsel present. United States v. Wade, 388 U.S. 218 (1967). He then argues he was not represented by counsel at the police lineup and therefore the results of that lineup should have been suppressed. We do not agree.

While an attorney’s presence is constitutionally required at a lineup conducted after adversarial proceedings have been initiated, an adversarial proceeding is one where formal or judicial proceedings have been initiated. When there has been only an arrest and the information or indictment has not been filed, formal proceedings have not begun and no right to counsel attaches. King v. State, 253 Ark. 614, 487 S.W.2d 596 (1972); Walters v. State, 266 Ark. 699, 587 S.W.2d 831 (1979); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988). Here, at the time of the lineup and arrest on February 7, 1992, no formal charges had been filed. Appellant’s right to counsel had therefore not attached, and there is no merit to the argument.

3. Appellant was not taken before a magistrate without delay: the victim’s identification of appellant at the auto parts store occurred in the middle of the afternoon of February 7,1992. The lineup at the police station occurred a couple of hours later and appellant was interviewed at 8:00 p.m. that same evening. He was taken before a magistrate the next day.

Appellant argues that because he was not taken immediately before a magistrate as required by Ark. R. Crim. R 8.1, (at which time counsel would have been appointed for the defendant), he was effectively denied his right to counsel at the lineup.

This argument is too speculative and is not supported by any reasonable argument or authority, and we dismiss it on that basis. Robinson v. State, supra.

4. Appellant’s arrest was unlawful: appellant argues his arrest on February 7, 1992, was illegal and his identification as a result of that arrest should have been suppressed. He claims the arrest was illegal because it was not made with probable cause. His only basis for this claim is his contention that the victim had not identified appellant by the time he was arrested at 3:00 the afternoon of February 7th.

That claim, however, is not supported by the facts in the record. The victim’s father testified his son had first identified appellant when he initially saw him outside the auto parts store. When they went into the store, the boy identified him again. Appellant does not dispute that this is sufficient to support probable cause for arrest, but suggests there was some dispute in the testimony as to whether the victim identified appellant at that time. However, any conflict in the testimony is for the factfinder to resolve. Sanders v. State, 217 Ark. 328, 878 S.W.2d 391 (1994). In this case, the trial court resolved any conflict in the testimony in favor of finding there had been an identification.

Affirmed.


author: Per Curiam.

text:
    ARKANSAS DEPARTMENT OF HEALTH, Sandra B. Nichols, M.D., Director, and Henry C. Robinson, Jr., Director and State Registrar, Division of Vital Records v. WESTARK CHRISTIAN ACTION COUNCIL, A Nonprofit Corporation
    94-1264
    892 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      L. Vance Marker, for movant American Medical Association.
   Per Curiam.

The motion of the American Medical Association to join in the amici curiae brief of the American College of Obstetricians and Gynecologists, The American Medical Women’s Association, The American Public Health Association, The Association for Vital Records and Health Statistics, The Committee on Privacy and Confidentiality of the American Statistical Association, and the Society of General Internal Medicine is granted. The American Medical Association’s joinder is in name only and will not expand the issues and authority adduced beyond that set forth in the amici curiae brief filed on January 17, 1995.

Holt, C.J., and Newbern, J., not participating.


text:
    CITY OF WEST MEMPHIS, et al. v. Thomas BURROUGHS, et al.
    94-176
    893 S.W.2d 323
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Sloan, Ruben & Peeples, by: Kent J. Rubens and James A. Davis, Jr.; and City of West Memphis by David C. Peeples, for appellants.

      Mike Everett, for appellees.
   Per Curiam.

Appellees filed a petition for a writ of mandamus directing appellants, the City and city officials, to call a special election for a referendum on Ordinance No. 1564. The ordinance created the West Memphis Water and Light Commission, conveyed the city-owned water, electric, and waste water utility facilities to the commission, and provided for the appointment of the commissioners. Appellants answered and sought to prevent the referral of the ordinance. The circuit court granted the writ. The City and the city officials appeal. We dismiss the appeal because the issue is now moot.

We have today handed down the opinion in a companion case, Burroughs v. Ingram, 319 Ark. 530, 893 S.W.2d 319 (1995). In that case we held invalid the emergency clause of Ordinance No. 1561, an ordinance providing for special meetings of the city council. At oral argument of this case, the parties agreed that if, in the companion case, we held invalid the emergency clause of Ordinance No. 1561, this case would become moot. The reason is the ordinance at issue in this case, Ordinance No. 1564, was read to the council at three meetings as required by law; however, one of those three meetings was a special meeting called under authority of Ordinance No. 1561, and it was called at a time when Ordinance No. 1561 was effective only if its emergency clause was valid. When the emergency clause of the special meeting ordinance, Ordinance No. 1561, was today declared void, it necessarily follows that Ordinance No. 1564 was not read the required number of times before its passage. Thus, the parties agree that Ordinance No. 1564 is invalid, and this case is moot.

A review of this case would result in a purely advisory opinion regarding the issuance of the writ mandamus, and, absent some compelling policy reason, we do not issue such opinions. Arkansas Intercollegiate Conference v. Parnham, 309 Ark. 170, 828 S.W.2d 828 (1992). There is no compelling public policy reason to decide whether the writ was correctly issued. Consequently, we dismiss the appeal.