author: Tom Glaze, Justice. Andree Layton Roaf,

text:
    Ben WAGGONER and Suzanne Waggoner, His Wife v. TROUTMAN OIL COMPANY, INC.; Billy S. Sublett; and Jim Reese, d/b/a J & S Quickstop
    94-622
    894 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Gregg, Hart & Farris, by; Phillip Farris, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Kenny McCulloch, for appellee Troutman Oil Company, Inc.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles and Gail O. Matthews, for appellee Billy S. Sublett.
   Tom Glaze, Justice.

This case raises the issue concerning whether this court should adopt the Fireman’s Rule. Ben Wag-goner, a volunteer fireman for the Mt. Vernon Fire Department, was working at his business on the day Billy Sublett drove his pickup truck into an above-ground kerosene storage tank owned by Jim Reese. Reese was operating a business called J & S Quick Stop and the storage tank was part of that business. Waggoner was only about 200 feet from the truck at the time of the collision. He saw steam or smoke coming from the truck, so he ran to the site to clear the area of children. Waggoner then saw flames arise from underneath the truck and fluid leaking from the tank. At about that time, a firetruck arrived, and Waggoner took the hose from one of the firemen and began hosing the fire. When he heard a percolating noise coming from the tank, Waggoner dropped the hose and ran, but after he ran about twenty feet, the tank exploded, causing Waggoner to sustain third degree burns over the backside of his body. Waggoner and his wife brought suit for negligence against Sublett, Reese and Troutman Oil, which was the supplier of kerosene to the above-ground tank. Troutman Oil filed a cross-complaint against Sublett and Reese. Because Wag-goner received workers’ compensation benefits, the Association of Arkansas Counties’ Workers’ Compensation Trust Fund intervened, seeking its statutory lien on any recovery awarded Waggoner.

The trial court granted Sublett and Troutman Oil summary judgment, holding the Fireman’s Rule governed the circumstances leading to Waggoner’s injuries, and served as a complete bar to the Waggoners’ claims against all party defendants. The trial court further found that Troutman Oil owed no duty to inspect or rectify any problems involving the tank, and that the actions of Sublett and Troutman Oil were not the proximate cause of Mr. Waggoner’s injuries. The Waggoners bring this appeal from the trial court’s summary judgment.

The Fireman’s Rule (also known as the professional rescuer doctrine) generally provides that a professional firefighter may not recover damages from a private party for injuries the fireman sustained during the course of putting out a fire even though the private party’s negligence may have caused the fire and injury. While Arkansas has neither adopted nor rejected the Fireman’s Rule, the rule has been almost universally accepted by jurisdictions confronted with the choice. In fact, twenty-three states and the District of Columbia have adopted the rule, albeit based upon differing rationale, and only three states have rejected the rule either by case law or statute. Grable v. Varela, 225 Ariz. 222, 564 P.2d 911 (1977); Baker v. Superior Court, 129 Cal.App.3d 710, 181 Cal. Rptr. 311 (4th Dist. 1982); Carpenter v. O’Day, 562 A.2d 595 (Del.Super. 1988); Gillespie v. Washing ton, 395 A.2d 18 (D.C. 1978); Bycom Corp. v. White, 187 Ga.App. 759, 762, 317 S.E.2d 233 (1988); Thomas v. Pang, 811 P.2d 821 (Hawaii 1991); Wynn v. Frasher, 116 Idaho 500, 777 P.2d 722 (1989); Core v. Grzelinski, 72 Ill.2d 141, 379 N.E.2d 281 (1978); Heck v. Robey, 630 N.E. 1361 (Ind. App. 1 Dist. 1994); Cohen v. Devereaux, 495 N.E.2d 211, 215 (Ind. App. 1986); Pottebaum v. Hinds, 347 N.W.2d 642 (Iowa 1984); Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 694 P.2d 433 (1985); Hawkins v. Sun Mark Industries, Inc., 727 S.W.2d 397 (Ky. 1986); Flowers v. Rock Creek Terrace, 308 Md. 432, 520 N.2d 361 (1987); Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 357, 372, 415 N.W.2d 178 (1987); Hannah v. Jensen, 298 N.W.2d 52 (Minn. 1980); Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445 (1955); Wax v. Co-Operative Refinery Association, 154 Neb. 805, 49 N.W.2d 707 (1951); England v. Tasker, 129 N.H. 467, 529 A.2d 938 (1987); Krauth v. Jeller, 31 N.J. 270, 157 A.2d 129 (1960); Kenavan v. City of New York, 523 N.Y.S.2d 60, 517 N.E.2d 872 (1987); Steelman v. Land, 97 Nev. 425, 634 P.2d 666 (1981); Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N.E.2d 38 (1963); Cook v. Demetraks, 108 R.I. 397, 275 A.2d 919 (1971); Chesapeak & Ohio Ry. v. Crouch, 208 Va. 602, 159 S.E.2d 650 (cert denied), 393 U.S. 845 (1968); Hass v. Chicago & N.W. Ry., 48 Wis.2d 321, 179 N.W.2d 885 (1970); contra Christensen v. Murphy, 296 Or. 610, 679 P.2d 1210 (1984); Minn. Stat., 604.06 (1984); Fla. Stat., Ch. 112.182 (1990).

It is noteworthy to point out that some jurisdictions’ rationale in adopting the rule is based upon treating the fireman as a licensee to whom landowners owe only the duty not to act willfully or wantonly. Other jurisdictions have predicated utilization of the rule upon the assumption of risk doctrine. However, the most persuasive decisions, we think, are those that justify the Fireman’s Rule on public policy considerations. In those cases, the courts submit that the risk is one which the fireman has engaged to encounter by virtue of his employment and one which it is his duty to accept, and the person who negligently causes the fire has therefore not breached a duty owed the fireman. Buchanan, 203 Neb. 684, 279 N.W.2d 855. The Supreme Court of Hawaii related this public policy consideration similarly as follows:

The very purpose of the firefighting profession is to confront danger. Firefighters are hired, trained, and compensated to deal with dangerous situations that are often caused by negligent conduct or acts. [I]t offends public policy to say that a citizen invites private liability merely because he happens to create a need for those public services.

Thomas, 811 P.2d 821, 825.

For examples of other jurisdictions adopting the Fireman’s Rule based on public policy considerations, see Pottsbaum, 347 N.W.2d 642 (Iowa 1984); Hawkins, 727 S.W.2d 397; Kreski, 429 Mich. 347; Phillips v. Hallmark Cards, Inc., 722 S.W.2d 86 (Mo. 1987); Austin v. City of Buffalo, 179 A.D.2d 1075, 580 N.Y.S.2d 604 (1992); Heck, 630 N.E.2d 1361.

After reviewing the foregoing case authorities on this subject, we conclude the Fireman’s Rule is applicable to the circumstances here and should control. That being said, we affirm the trial court’s decision and hold that the rule bars the Wag-goners’ recovery for the very valid public policy reason that the party or parties who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter was employed to confront.

The Waggoners argue alternatively that, even if the Fireman’s Rule is adopted by this court, exceptions to that rule apply here that still permit their recovery. They mention, for example, that Sublett pled guilty to a felony for having driven his truck into the kerosene storage tank. While it has been said that the courts have traditionally held that the protection of the Fireman’s Rule does not extend to willful, wanton or reckless conduct or hidden dangers caused by defendants, the Waggoners failed to make these allegations part of their complaint against the defendants-appellees, nor did they obtain the trial court’s ruling on such an issue. See Petition of Sprague, 564 A.2d 829 (N.H. 1989); Thomas, 811 P.2d 821; Migdal, 564 A.2d 826; Mahoney, 510 A.2d 4; 62 Am. Jur. Premises Liability § 431 (1990 and Cum. Supp. 1994); see also Hawkins, 727 S.W.2d 397; contra Young, D. 569 A.2d 1173.

The Waggoners did appropriately and timely raise their arguments that Waggoner was not covered by the Fireman’s Rule because he was a “volunteer” fireman. He also claimed that, even if volunteer firemen are covered by the rule, he was not acting as a fireman at the time of his injuries.

In concluding as a matter of law, Waggoner was acting as a fireman when he sustained his injuries, the trial court determined that Waggoner admitted in his amended response to Troutman Oil’s motion for summary judgment that he was performing his duties as a volunteer fireman at the time of his injuries. In fact, the undisputed evidence reflects that at least at some point Waggoner clearly assumed his duties as a fireman by taking the Mt. Vernon Fire Department’s hose under his control and fighting the flame resulting from the leaking storage tank. Wag-goner’s actions were consistent with his past and present history. Waggoner had trained as a firefighter, had served as Mt. Vernon’s first volunteer fire chief, and continued on the town’s roster of firefighters. He also conceded that, as a firefighter, he has received workers’ compensation benefits for injuries sustained in this case as a result of such coverage having been provided by Mt. Vernon’s volunteer fire department.

Concerning Waggoner’s contention that, as a volunteer rather than a paid fireman, he should not be barred by the Fireman’s Rule, we point out that the cases fail to support this view. In fact, the general rule appears to be that the duty owed to volunteer firefighters is no different from that owed to paid firefighters. See Buchanan, 203 Ark. 684; Baker v. Superior Ct., 129 Cal. App. 3d 710, 181 Cal. Rptr. 311; see also 62 Am. Jur. 2d § 436. We further point out that, under Arkansas’ statutory law, volunteer firemen are under a duty to respond to, attempt to control, and put out all fires occurring within their respective districts. Ark. Code Ann. § 20-22-901 (Repl. 1991). We would also be remiss in failing to mention that Waggoner, as a volunteer fireman, was not without relief since the injuries sustained by him were in the course of his employment and were compensable under Arkansas Workers’ Compensation laws. See Thomas, 811 P.2d 821. In this respect and as previously mentioned, Waggoner claimed and received workers’ compensation benefits for his injuries.

Because we hold the Fireman’s Rule is applicable to and governs the facts and events set out by the Waggoners and party defendants below, we uphold the trial court’s decision.

Affirmed.

Roaf, J., dissents.

Andree Layton Roaf,

dissenting. The majority has chosen to adopt the century-old Fireman’s Rule and to premise its adoption on the broadest possible underpinning, that of public policy. At first blush, the Fireman’s Rule appears to be well founded in logic, reason, and sound policy considerations. Certainly, we are falling in line with the vast majority of jurisdictions in adopting this Rule. But numbers do not always equate with right. For me, the ultimate question is whether there is presently a valid, substantial public policy purpose to be accomplished by treating firemen and policemen differently than many other public and private workers whose jobs entail a degree of risk of injury. I think not and I find the rationale set forth in a case which abolished the rule and the dissenting opinions in two other cases to present more reasoned analyses and conclusions regarding this rule.

The rationale that a fireman, by virtue of his employment is paid to encounter risks created by the negligence of others, and is therefore owed no duty by such tortfeasors, is simplistic and patently unfair to these public servants. The dissent in Walters v. Sloan, 142 Cal. Rptr. 152 (1977), which calls the Fireman’s rule “outmoded” and of ancient vintage, addressed this rationale:

Proponents of the fireman’s rule argue most frequently that it is the fireman’s job to extinguish fires and the policeman’s job to make arrests. They conclude that a fireman or a policeman can base no tort claim upon damage caused by the very risk that he is paid to encounter and with which he is trained to cope. The argument, in essence, is that the fireman or policeman in accepting the salary and fringe benefits offered for his job, assumes all normal risks inherent in his employment as a matter of law, and thus may not recover from one who negligently creates such a risk.
The fallacy in this argument is simply that i.t proves too much. Under this analysis, an employee would roufinely be barred from bringing a tort action whenever an injury he suffers at the hands of a negligent tortfeasor could be characterized as a normal, inherent risk of his employment. Yet as noted above, past California cases have regularly permitted highway workers — whose jobs obviously subject them to the “inherent risk” of being injured by a negligent driver — to recover for damages inflicted by such third party negligence . . . and have permitted construction workers — whose employment poses numerous risks of injury at the hands of another — to recover tort damages for work-related injuries so long as the negligent tortfeasor is not their employer. . . .
As these and countless other cases demonstrate, while policemen and firemen regularly face substantial hazards in the course of their employment and are, theoretically at least, compensated for such risks, a host of other employees — highway repairmen, high rise construction workers, utility repairmen and the like — frequently encounter comparable risks in performing their jobs and, again theoretically, also receive compensation for such risks. California decisions have never perceived such theoretical compensation as a sufficient basis for barring the employee’s cause of action against a negligent tortfeasor. (Cites omitted.)

In Christensen v. Murphy, 678 P.2d 1210 (Or. 1984), the Supreme Court of Oregon abolished the Rule because its implied assumption of risk underpinnings had been abolished by Oregon statute. In determining whether any other theory would support the Rule the court stated:

The most often cited policy considerations include: 1) To avoid placing too heavy a burden on premises owners to keep their premises safe from the unpredictable entrance of fire fighters; 2) To spread the risk of fire fighters’ injuries to the public through workers’ compensation, salary and fringe benefits; 3) To encourage the public to call for professional help and not rely on self-help in emergency situations; 4) To avoid increased litigation ....
For example, policy consideration “1” above focuses on the fire fighter as a class from whom the premises owner needs immunity (akin to a licensee or trespasser), not on the reasonableness of the activity of the premises owner in the circumstances. Thus, it can be seen that the unusual hazard or hidden danger exception to the “fireman’s rule” (allowing the fire fighter to recover under the old premises liability or the new foreseeability tests), discloses not a governmental policy concerning conduct of a landowner but a veiled form of assumption of risk analysis — usually characterized in language indicating that the fire fighter “* * * does not assume such risks” ....
The remaining policy arguments are equally flawed. The weakness in the loss-spreading rationale, “2” above, is obvious. By denying a public safety officer recovery from a negligent tortfeasor, the officer is not directed to recover his damages from the general public; rather the officer is totally precluded from recovering these damages from anyone . . . Under the “fireman’s rule” the injured public safety officer must bear a loss which other public employees are not required to bear . . .
As for “3” above, Dean Prosser criticized as “preposterous rubbish” the argument offered to defend the “fireman’s rule” that tort liability might deter landowners from uttering cries of distress in emergency situations. . . We agree. Furthermore, we have previously rejected “4” above, avoidance of increased litigation, as a ground for denying substantive liability. (Cites omitted.)

In Berko v. Freda, 459 A.2d 663 (N.J. 1983), where the Supreme Court of New Jersey extended the firemen’s rule to a police officer, the dissent effectively dealt with the issue of disparate treatment of policemen and firemen as opposed to other governmental employees:

The majority attempts to distinguish police officers and fire fighters who are paid to “confront danger” from other kinds of public employees on the ground that the latter are merely paid “to perform some other public function^] that may incidentally involve risk....” This asserted distinction merely disguises the fact there are more similarities than differences between police officers and fire fighters and a host of other public employees. Police officers on traffic patrol may be exposed to risks entirely comparable to highway workers doing road work. Many public employees — police officer and sanitation worker alike — confront dangers on the job. Conversely, both classes of employees also confront “ordinary” risks not involving unusual danger. Because law enforcement in some instances entails greater risks, police officers should not be deemed to have foresaken the right to seek compensation for injury resulting from such risks — unless, as the majority seems to believe, the monetary compensation that police officers receive is commensurate with the extraordinary risks of their jobs... But, no empirical or rhetorical support is marshalled to bolster this assumption. And even if police officers and fire fighters are presumed to be adequately compensated for the risks of their work, the majority does not explain why other governmental employees, who must also be presumed to receive adequate compensation for their work, should not therefore be prohibited, as are police officers and fire fighters, from recovering from negligent third parties for injuries attributable to the risks normally inherent in their employment. . .
Police officers and fire fighters should not be placed beyond the pale of a judicial philosophy that searches for just and fair results. Our jurisprudence has long established that individuals who voluntarily attempt a rescue in response to a negligently created danger have a valid cause of action under the rescuer’s rule, which recognizes that danger invites rescue. .. I am at a loss to understand why this judicial philosophy is repudiated in a case such as this, where the rescuer is not simply a good Samaritan but a professional, who is not simply “invited” to rescue but is expected to rescue. In this context, the foreseeability of rescue, which is the predicate for imposing a duty of care, moves from a reasonable anticipation to virtual certainty. If anything, the strength of the duty of care owed to such a rescuer by the negligent party should increase with the certainty of the foreseeability that rescue will be a consequence of the negligence. . . .

Further, I have encountered at least a superficially persuasive argument for adopting the Rule in Riley, Fireman’s Rule, 71 Cal. L. Rev. 239 (1983). Using the policies behind insurance and workers compensation as a basis, the article presents the public-as-employer analogy. The analogy goes something like this. Fire companies are created by the public to take care of certain hazards, and there is no need for their services until some danger arises. The fire station is not their true workplace; there is no “workplace” for such public employees except under hazardous conditions. Thus, by this analogy, any premises with a fire becomes the “workplace” and workers compensation is the appropriate and exclusive remedy. This analogy reads well, but it also fails to address the similarities between firemen and other public workers and does not provide at all a reason for disparate treatment.

The Fireman’s Rule cannot be supported on sound policy grounds, not here and not now. In Arkansas, a comparative fault state, we do not need and are not warranted in now adopting this antiquated common law rule:

Comparative fault is beginning to have an impact on the ‘fireman’s rule,’ which in its original form stated that a landowner owes no duty to a fireman to keep the premises in a safe condition... Now that assumption of risk and the licensee/invitee distinction underpinning the rule have been limited or abolished, the fireman’s rule still survives in most jurisdictions that have considered the question but has become more limited in scope. . . Schwartz, Comparative Negligence § 9-4(c)(l) (3d. 1994).

Finally, it seems to me that we should conduct a more studied analysis of the policy considerations before adopting this Rule. Such a review would of necessity require some knowledge of the frequency and variety of on-the-job injuries to firemen as compared to other public employees, and we do not have this information before us.

We have fared very well without the Fireman’s Rule for the past one hundred years and I would not adopt it now.

I respectfully dissent.

       Troutman Oil also filed a third-party complaint against four other defendants who purportedly were owners of the tank and the premises where Quick Stop was located.

      We note that, in scouring the abstract, we find a letter dated February 7, 1994, to the trial judge which mentions certain Fireman’s Rule exceptions including the “willful and wanton” exception and “hidden dangers” exception, but no pleading, motion or argument was made to the trial court, nor ruling obtained on these theories.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Gary WILLIAMS v. STATE of Arkansas
    CR 94-622
    894 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Val P. Price and Brent Crews, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Gary Williams killed his parents, and was subsequently charged and convicted with two counts of capital murder. Prior to trial, Williams requested a psychiatric examination, which was granted. The Arkansas State Hospital’s initial determination resulted in finding him incompetent to stand trial. After about nine months of treatment, state hospital officials found Williams had improved to the point where he was competent to stand trial. Those officials, however, still omitted any conclusion regarding whether Williams appreciated the criminality of his conduct at the time he killed his parents. Consequently, Williams asked for a second evaluation, stating he was entitled to an opinion on the criminal responsibility issue. The trial court denied that request. At trial, Williams raised the insanity defense, but the jury rejected it, finding him guilty of both counts of capital murder and sentencing him to life without parole.

On appeal, Williams first contends the trial court erred by failing to instruct the jury concerning what would happen to Williams if the jury acquitted him on the grounds of mental disease or defect. Williams proffered a modified AMCI4009 instruction, adding a paragraph, reflecting that, if Williams is found not guilty by reason of mental disease or defect, the trial court must commit him to the Department of Human Services for further examinations and treatment. The trial court’s ruling rejecting Williams’s instruction was correct.

This court has repeatedly held that the jury is not to be told the options available to the trial court when a defendant is found not guilty by reason of mental disease or defect because such an instruction raises questions foreign to the jury’s primary duty of determining guilt or innocence. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 114 (1991); Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1981); Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981); Campbell v. State, 216 Ark. 878, 228 S.W.2d 470 (1950). Williams cites to an annotation in 81 ALR4th 659 which states that a substantial number of jurisdictions have held or recognized that the trial judge in a criminal case involving the insanity defense must instruct the jury as to hospital confinement or other dispositional consequences of an acquittal on grounds of insanity. That same annotation, however, recognizes that courts in a large number of jurisdictions (including Arkansas) still adhere to the view that such instructions are generally inappropriate and unnecessary. The rationale announced in the annotation for rejecting such an instruction is consistent with that adopted by this court — it would permit or encourage the jury to base its verdict on speculation regarding the defendant’s subsequent disposition rather than on the law and evidence as to his mental responsibility at the time of the crime. For twenty-five years, this court has adhered to this sound reasoning, and we decline Williams’ suggestion to repudiate it now.

Williams next argues the trial court erred when it denied his request for a second opinion on the issue of his criminal responsibility at the time of the crime. He points to Doctors Hall’s and Simon’s evaluation letter which stated that, “We feel unable to reach a definitive decision with regard to Mr. Williams’ criminal responsibility in this case and thus respectfully leave the decision to the trier of fact.”

Williams cites Ark. Code Ann. § 5-2-305(d)(4) (Repl. 1993) which provides that the mental examination report shall include an opinion as to the extent, if any, (1) to which the capacity of the defendant to appreciate the criminality of his conduct or (2) to conform his conduct to the requirements of law was impaired at the time of the conduct alleged. He argues the state hospital’s report did not contain an opinion bearing on his mental capacity when the crimes occurred. The state responds, stating that the statute requires no unequivocal opinion, but provides only that such reports contain an opinion as to the extent to which the defendant’s mental capacity was impaired. The state is correct.

Doctors Hall and Simon concluded that there was little doubt that Williams was mentally ill, and they classified him as atypical psychosis, psychotic disorder not otherwise specified. They said this classification means Williams has some kind of mental problem, defect or disease, but they cannot fit him in any categories. The doctors further stated that it could certainly be argued Williams’ criminal behavior was a direct product of his mental illness, and thus, he should not be held responsible for his actions. The doctors then opined that other factors suggested Williams appreciated the criminality of his conduct, and more than likely he could have conformed his conduct to the requirements of law at the time of the crimes. In support of this statement, the doctors related in their evaluation letter that Williams had (1) called the police and informed them he had murdered his parents, (2) refused to give a statement until he could speak to an attorney, (3) feared that his parents had planned to put him back in jail (when in fact evidence existed showing his parents were afraid of him and wanted him out of their home), and (4). appeared to appreciate the fact that he could be charged with murder for his acts and sent to prison, if found guilty.

The foregoing evidence reflects the doctors rendered an opinion that Williams suffered from an atypical psychosis (psychotic disorder), mental illness, but the doctors could not otherwise specify or fit him in any category. Nonetheless, the doctors’ report did contain factors and opinions bearing on “the extent” to which Williams may have been mentally impaired when he murdered his parents.

In Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990), this court held § 5-2-305(d)(4) was satisfied when a psychiatrist gave a conditional evaluation. There, the psychiatrist said it was difficult for her to evaluate the defendant’s mental condition at the time the offense was committed because she had not known him at the time. She further stated that the defendant would have been able to appreciate the criminality of his conduct if defendant’s condition was the same at the time of the offense as it was on the date of her report and evaluation.

As in Walker, the psychiatrists here experienced difficulty in giving an unqualified opinion, bearing on the criminal responsibility issue of the defendant. And while Williams argues a conclusive opinion is necessary under § 5-2-305(d)(4), this court has made it quite clear that a jury is not bound to accept opinion testimony as conclusive even when it exists and is introduced. Robertson, 304 Ark. 332, 802 S.W.2d 920. Thus, even when several competent experts concur in their opinions and no opposing expert evidence is offered, the jury is still bound to decide the issue upon its own fair judgment. Id.

Before leaving this issue, we point out that Williams’ argument seems to rest on the suggestion that the psychiatrists’ report undermined his insanity defense. He simply fails to show any prejudice. First, Williams points to no new data, or to errors contained in the doctors’ report, that might indicate any different, or more conclusive, opinion would be forthcoming if another expert had been engaged. Second, as matters stood when Williams was tried, his counsel thoroughly utilized in his closing argument the conclusions reached by Hall and Simon in their report. For example, Williams argued that, to prove his insanity defense, he need only do so by a preponderance of the evidence. He argued that Hall’s and Simon’s opinions showed it was “fifty-fifty” as to whether Williams was criminally responsible for his parents’ deaths and that the doctors said unequivocally that Williams suffered from mental disease or defect. Williams used the doctors’ qualified or conditional report to his advantage by arguing to the jury that “this is not a case where the doctors have come back and said, there’s no question in our minds he’s not guilty by reason of insanity.” He further repeated the doctors’ observations that it could be argued Williams’ criminal behavior was a direct product of his mental illness, and he should not be responsible for his actions. In sum, Williams relied on Hall’s and Simon’s conclusions throughout his closing argument in support of his insanity defense, and he offers nothing to show how his defense would have been enhanced merely by the appointment of another expert.

We next turn to Williams’ argument that his four siblings, the victims’ children, should not have been excluded from the courtroom during the trial. He argues his siblings should have been considered “victims of the crimes” under A.R.E. Rule 616 and allowed to be present during the trial. This argument is meritless. First, Williams cites no authority to support his argument that the “victim of the crime” language in Rule 616 refers to anyone other than the primary victims — in this case, the murdered parents. Second, he offers no authority giving him standing to assert the rights, if any, the siblings may have under Rule 616. Third, he fails to allege, much less show, any prejudice resulting from his siblings’ exclusion from the trial.

Williams’ next arguments are that the trial court erred in ruling that he was competent to stand trial and in failing to grant a directed verdict regarding his affirmative defense of insanity. We sustain the trial court’s rulings on both points.

First, the rule is well settled that an accused is presumed competent to stand trial, and the burden of proving incompetence is upon the accused. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). After the state meets its burden of proving the elements of an offense beyond a reasonable doubt, the burden then becomes the defendant’s to prove the affirmative defense by a preponderance of the evidence; the question is one for the jury and the jury may direct a verdict only if no factual issue exists. Id. The question for a reviewing court to resolve on a denial of a directed verdict is whether there is substantial evidence to support the verdict. Id.

Here, the record reflects the following evidence was before the trial court when it rejected Williams’ motion for directed verdict. In April 1993, the Arkansas State Hospital’s staff reviewed relevant records, discussed Williams’ progress and interviewed him for about an hour and a half. Doctors Hall and Simon reported that Williams seemed oriented to time, place and person; appeared to have a reasonably good understanding of the legal system; and was well aware of the charges he faced. They said that Williams acknowledged that he had an attorney, and expressed a willingness to work with him. The doctors further related Williams was aware that he could be convicted if found guilty, and they concluded Williams could cooperate effectively with his attorney. Hall and Simon opined Williams was competent to stand trial.

On September 9,1993, two days before trial, Dr. Hall appeared at a competency hearing and confirmed his earlier opinion that Williams was fit to proceed to trial. Dr. Simon also testified that, although Williams was difficult to diagnose, and had long-term psychiatric problems, he was willing to work with his attorneys and was interested in defending himself. Marla Gergely, supervisor of the social department at the state hospital, testified that Williams had taken an eight-week competency class given at the hospital, and the class met once a week for an hour, where participants were taught about courtroom procedures and the different things that can happen in court. A test is given at the end, and a score of eighty percent means participants do not have to repeat the class. Williams scored eighty-two percent on the pretest, but still took the class. Questions asked of Williams included such things as what are the charges against you, why were you arrested, did you give a statement to the police, who is your lawyer, what are the three ways you can plead, and what are some of your rights during the trial. We hold this pretrial evidence was more than sufficient to sustain the trial court’s denial of Williams’ directed verdict motion.

We reach the same result when considering Williams’ argument that the trial court erred in denying his directed verdict motion on his affirmative defense of lack of criminal capacity or responsibility. Again, we hold substantial evidence exists to sustain the trial court’s ruling on this point. We have already discussed much of the evidence relevant here in disposing of Williams’ first two arguments, so we need not repeat all of that testimony or evidence. Suffice it to say, that the expert testimony, alone, related substantial evidence bearing on Williams’ capacity and responsibility when he committed the offenses. In sum, the doctors said that Williams had reported his crimes to the police, thus indicating he knew he had committed the offense and knew who to call; he refused giving a statement to the police until he spoke to his attorney; his fear that his parents may have been planning to put him in jail was not delusional, as they were afraid of him and wanted him out of the house; and while he felt justified in what he did, he appeared to appreciate the fact that he could be charged and convicted of murder and sent to prison.

In conclusion, the trial record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h), and we find no reversible error on other rulings that were adverse to Williams. Thus, for the reasons given hereinabove, we affirm.

      Williams argues that, by enacting new bifurcated sentencing procedures (Ark. Code Ann. §§ 16-97-101 -104 (Supp. 1993)), the General Assembly appears to have established a policy in favor of informing juries of the consequences of a verdict of not guilty by reason of mental disease or defect. We find such argument disingenuous, since those new procedures merely provide for additional information that may be given juries at the sentencing phase of the trial and which may have been inadmissible at the guilt phase. See § 16-97-103.


author: Donald L. Corbin, Justice.

text:
    Carl A. STEWART v. STATE of Arkansas
    CR 94-1068
    894 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Hugh Finkelstein, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Carl A. Stewart, appeals a judgment of the Dallas County Circuit Court, filed May 4, 1994, convicting him of four counts of delivery of cocaine (counts I-IV), a Class Y felony, Ark. Code Ann. § 5-64-401 (Repl. 1993), and one count of maintaining a drug premises (count V), a Class D felony, Ark. Code Ann. § 5-64-402 (Repl. 1993). The judgment also sentenced appellant to a fine of $20,000.00 and imprisonment at the Arkansas Department of Correction for a term of forty-five years (consisting of consecutive terms of fifteen years each for counts I, II, and III), and suspended imposition of sentence as to counts IV and V pending appellant’s release from the Department of Correction, subject to conditions. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2). We find no error and affirm the trial court’s judgment.

Appellant’s first argument for reversal is that the evidence was insufficient to sustain his premises conviction under section 5-64-402(a)(3) because the statute requires proof of multiple transactions involving multiple persons, but the evidence showed only one transaction involving only one person. The state contends this argument is not properly preserved for appeal. We agree that appellant did not raise this specific argument below. Appellant has therefore waived this argument on appeal.

A directed verdict motion is treated as a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995); Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994). Our law is well established that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55; Stricklin v. State, 318 Ark. 36, 883 S.W.2d 465 (1994).

Consistent with this principle, we have held that, since the adoption of the Arkansas Rules of Criminal Procedure, including Rule 36.21(b) which was adopted in 1988, a general motion is insufficient to preserve a defendant’s argument that the statutory elements of his crime were not proved. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). We have held that the movant’s failure to specifically apprise the trial court of a specific basis for his motion means the motion will be insufficient to preserve that specific argument for appellate review. Id.

In the instant case, at the close of the state’s evidence, appellant made a general motion for directed verdict based on insufficient evidence. Appellant did not specifically address any count charged against him, nor did he make any argument in support of his general motion. In particular, he did not argue, as he does now on appeal, that the evidence with respect to the premises count was inadequate to satisfy the statutory elements of the crime. At the close of all the evidence, appellant simply renewed his previous motion for directed verdict, again without presenting any specific basis for the motion. In summary, while appellant did make a timely motion for directed verdict, it was made only on general insufficiency grounds which are inadequate to preserve for our review the specific argument he now raises. Campbell, 319 Ark. 332, 891 S.W.2d 55; Walker, 318 Ark. 107, 883 S.W.2d 831. Accordingly, he has waived this argument on appeal.

Appellant’s second argument for reversal is that the trial court erred in denying his motion for mistrial which was prompted by a remark, made off the record, by a potential juror, Mr. Davis, during appellant’s voir dire of Mr. Davis. The part of appellant’s voir dire of Mr. Davis which occurred after Mr. Davis made his challenged remark was abstracted, however, and is quoted as follows:

[ABSTRACTOR’S NOTE: The following colloquy occurred at the bench during the voir dire of the jury:]
DEFENSE COUNSEL: I move for a mistrial. That’s tainted this whole procedure.
THE COURT: You didn’t want this recorded, so it wasn’t recorded, and as I understand it, the juror said he didn’t know whether he could be impartial because he said, “If it’s one count, he might be able to — but five counts, he’s probably guilty.” I think you can rehabilitate that witness [sic]. I understand you want to excuse him, but the man coming up is the twelfth juror. I don’t know what you want to do. You’re going to have to go into some of this to make him understand, that some people just don’t understand it. If you want me to or you to —
DEFENSE COUNSEL: I move for a mistrial.
THE COURT: The motion for a mistrial is denied. I think the juror just stated that he just — based on the questions that the Court asked and I can’t stop him from stating what his feelings are, and I don’t think that that affects anything for the record.
DEFENSE COUNSEL: I just want to make sure that they’ll know what he did say, I don’t want to misstate it — “Since there’s five counts, he’s probably guilty. One count, one may be mistaken” —
THE COURT: I don’t think that’s exactly what he said. I think what I said in the beginning — this is basically what he said.
DEPUTY PROSECUTOR: “If there was,” — he was certain “if there was one count, he might have made mistake, but more counts than that, he’s probably guilty,” or something to that effect.
THE COURT: That’s pretty close.
[In open court]
THE COURT: Mr. Davis, let me clear that part of it up. Did you hear what I said this morning, that as [appellant] sits here at this minute right now, he’s just as innocent as you or I are innocent, and will be so until there’s enough evidence put on from that witness stand to convince twelve people who fairly and impartial [sic] decide these issues? We don’t deal in probables. In other words right now, he is innocent —■ not probably is innocent, and until evidence is introduced that could convince twelve people otherwise. Now can you follow that presumption? I’m not sure that based on what you started out with, you could or couldn’t?
JUROR DAVIS: I don’t think I could.
THE COURT: You are excused. Thank you, sir.

Without citation to persuasive authority, appellant summarily argues that the message of Mr. Davis’s remark was clear enough to the jury panel — “too many allegations means guilt” — and, because of the resulting taint to the jury, a mistrial was warranted. Based on the record before us, we find that this argument is meritless and that no reversible error was committed by the trial court.

A mistrial is a drastic remedy. Rank v. State, 318 Ark. 109, 883 S.W.2d 843 (1994); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994). We have held that the trial court should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected; the trial court has wide discretion in granting or denying a motion for a mistrial and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).

Appellant has failed to show that the denial of his motion for mistrial either constituted a manifest abuse of the trial court’s discretionary authority or prejudiced appellant. The record shows that, following the bench conference in which the mistrial motion was made and denied, the trial judge immediately addressed the potential juror, Mr. Davis, in open court and restated to him the presumption of innocence. Mr. Davis candidly replied that he could not follow the presumption and was properly excused by the trial judge. No admonition from the trial court to the jurors or jury panel regarding Mr. Davis’s remark or his excuse from the panel was requested by appellant. No proof is shown that the jurors or other venirepersons heard the remark.

In this state, jurors are presumed to be unbiased. Lair v. State, 283 Ark. 237, 675 S.W.2d 361 (1984). We find that no reversible error was committed by the trial court in denying appellant’s motion for a mistrial where no prejudice has been shown and venireman Davis did not serve on the jury that was ultimately selected. Smith v. State, 256 Ark. 321, 507 S.W.2d 110 (1974).

Affirmed.


author: Robert L. Brown, Justice.

text:
    Gary LANDRUM v. STATE of Arkansas
    CR 94-1387
    894 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Robert E. Irwin, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This case was first reviewed by the Arkansas Court of Appeals. See Landrum v. State, 47 Ark. App. 165, 887 S.W.2d 314 (1994). The Court of Appeals equally divided in an era banc decision with three judges voting to affirm and three judges voting to reverse. We granted review pursuant to Ark. Sup. Ct. R. l-2(f).

On the evening of May 30, 1992, appellant Gary Landrum and the victim, Joseph Franklin, had a fight in James Park in Russellville. Prior to the fight, Landrum was seen waving his pocket knife and was heard by at least two witnesses to say that it had Joseph Franklin’s name on it. He had the knife open and in his pocket when Franklin arrived. During the fight, Landrum stabbed Franklin in the chest with the pocket knife. Franklin died as a result of the stab wound.

Landrum was charged with first degree murder,' and at the trial of the charge he asserted a defense of justification. When he took the stand in his own defense, he stated that the stabbing in the chest was unintentional though he meant to stab Franklin in the stomach. During initial cross-examination, he told the prosecutor that he usually did not carry a knife. On recross-examination the following occurred:

PROSECUTOR: I want to be real clear on one thing. You said — you told me that you usually don’t carry a knife. Is that correct?
LANDRUM: Yeah, sometime. Sometime I do and sometime I don’t. Sometime I can be at home and leave it and sometime I can be at home and take it with me.

After the defense rested, the prosecutor sought to present rebuttal testimony to Landrum’s testimony that he usually did not carry a knife which, the prosecutor contended, opened the door to such proof. The trial court agreed. The prosecutor called his first rebuttal witness, Belinda Faye Norman, and at that point the following ensued:

PROSECUTOR: Ms. Norman, do you know Gary Landrum?
NORMAN: Yes, sir.
PROSECUTOR: Do you know —
DEFENSE COUNSEL: Your Honor, I want to approach the Bench myself. I — I’ve been thinking about this.
(Side-Bar Conference, outside the hearing of the Jury)
DEFENSE COUNSEL: This goes to reputation evidence and the bad reputation; and I’ve not put his good reputation into evidence.
PROSECUTOR: No, but he’s put in the reputation that he —
BY THE COURT: You’ve put in character in terms of a victim and an accused and who was the aggressor.
DEFENSE COUNSEL: Yeah; but he’s talking about a character trait of carrying a weapon and I’ve not put anything in there showing he’s a good fellow and not carry any weapon.
PROSECUTOR: He said — he said —
BY THE COURT: Well, I’ll overrule that. I think he can proceed in this manner.
DEFENSE COUNSEL: Okay.
(End of Side-Bar)
PROSECUTOR: Do you know Gary Landrum?
NORMAN: Yes, sir.
PROSECUTOR: How long have you known Gary Landrum?
NORMAN: All through school and everything. We growed up together.
PROSECUTOR: Do you know Gary Landrum’s reputation in the community?
NORMAN: Yes, sir, some of it.
PROSECUTOR: Do you know Gary Landrum’s reputation as to whether or not he carries — he’ll — he’ll often carry a weapon?
DEFENSE COUNSEL: Now, Your Honor, I’m going to have to object for a different reason; and —
(Side-Bar Conference, outside the hearing of the Jury)
DEFENSE COUNSEL: — the reason this time is this is not the same type of material. This is reputation evidence; and hadn’t got anything to do with actually carrying a weapon or rebuttal of whether he carries or not carries.
BY THE COURT: Are you trying to elicit from her that she knows he does carry a weapon of her own personal knowledge?
PROSECUTOR: That’s right; that he carries a weapon all the time.
BY THE COURT: Why don’t you ask her that rather than this other.
DEFENSE COUNSEL: I want the Court to instruct the Jury that those first questions need to be disregarded; that those are improper questions.
BY THE COURT: I sustained your objection.
(End of Side-Bar)
DEFENSE COUNSEL: Okay, but I’m going to ask the Court to admonish the Jury.
BY THE COURT: Well, the question was not proper, and I sustained your objection.
DEFENSE COUNSEL: All right.

The State proceeded to ask for reputation testimony a second time, and defense counsel objected again and was sustained. The trial court admonished the jury. Then the State queried:

PROSECUTOR: Do you have any personal knowledge of this man ever carrying a weapon?
NORMAN: A pocket knife.
PROSECUTOR: Okay. So, you know Gary — Gary Landrum as a person who carries a knife?

Again, there was an objection, and the trial court sustained it and admonished the jury. The prosecutor then called his second rebuttal witness, and this colloquy occurred:

PROSECUTOR: Do you have personal knowledge of Gary Landrum ever carrying a weapon?
STEWART: Uh, huh, seen him with a weapon a couple of times, a knife that he always has in his pocket.

The jury subsequently found Landrum guilty of second degree murder. He was sentenced to 20 years in prison and fined $12,500.

Landrum urges on appeal that the trial court erred in permitting the State to call rebuttal witnesses regarding his character and reputation when he had not placed his character in issue. We initially dispose of one facet of Landrum’s argument. The trial court was assiduous in sustaining defense counsel’s objections to reputation testimony and in admonishing the jury that questions about general reputation would not be allowed. There, accordingly, is no basis for error on the reputation aspect.

We do conclude, however, that the trial court erred in allowing rebuttal testimony on whether Landrum ever carried a pocket knife. Our primary reason for assessing error is found in Ark. R. Evid. 404(a)(1), which reads:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.

It is clear in this case that Landrum did not offer evidence of his good character or of a particular character trait, and we have stated that the defendant must first raise the character issue for any rebuttal by the State to transpire. See Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992), citing McCormick on Evidence, Yol. I § 190, p. 186 (1992). Specifically, Landrum presented no testimony to the effect that he was a good man because he carried a knife sometimes and not all of the time. The fact that he usually did not carry a knife or sometimes did not carry a knife was a fact elicited by the prosecutor on cross-examination. It runs counter to the rule for the prosecutor to extract a comment from the accused and then attempt to disparage that testimony by rebuttal evidence.

We held in a similar case that it was error for the trial court to permit rebuttal evidence that the defendant had previously pulled a knife on someone. See Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983). In Rowdean, even though the State was attempting to rebut the defendant’s assertion that she never carried a knife, we stated that this evidence was impermissible because the defendant’s character was not an essential element of her claim of self-defense. Similarly, in the case before us Landrum’s character had not been placed in issue and a peaceful disposition was not an essential element for his claim of self defense. See West v. State, 265 Ark. 52, 576 S.W.2d 718 (1979). The State, accordingly, was attempting to impeach him by extrinsic evidence on a collateral matter elicited on cross-examination which was clearly improper. Sutton v. State, 311 Ark. 435, 844 S.W.2d 350 (1993); Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987).

Having concluded that there was error, we turn next to the question of whether this error affected Landrum’s substantial rights. See Ark. R. Evid. 103(a). We do not believe that it did. In response to the question of whether Landrum ever carried a weapon, Belinda Faye Norman answered: “A pocket knife.” In response to the same question, Marty Stewart said: “. . . seen him with a weapon a couple of times, a knife that he always has in his pocket.” But Landrum himself had already testified that he sometimes carried a knife and that he had his knife on the night in question and had used it to stab Franklin. The rebuttal testimony, therefore, adds little to what Landrum has previously admitted.

Moreover, testimony by Marty Stewart that Landrum always carried a pocket knife with him appears of little significance and relevancy in this case. Many people carry pocket knives. The knife in question was described by one witness, Beverly Henson, as “[s]mall, like a fishing knife or pocket knife.” A second witness, Michael Rhodes, confirmed that description. Had the rebuttal testimony been more significant, we would feel differently. In West v. State, supra, for example, we held that improper proof from rebuttal witnesses that defendant had shot an individual four years before was reversible error. And, as already referenced, in Rowdean v. State, supra, improper rebuttal testimony that the defendant had previously pulled a knife on someone else was highly prejudicial. Here, though, we are convinced that the testimony by the rebuttal witnesses had minimal impact, if any, in establishing that Landrum suffered from a bad character trait. See Goldsmith v. State, 301 Ark. 107, 782 S.W.2d 361 (1990).

We hold that the rebuttal witnesses’ testimony did not affect the substantial rights of Landrum.

Affirmed.


author: Andree Layton Roaf, Justice.

text:
    Robert R. CORTINEZ v. Brenda K. BRIGHTON
    94-919
    894 S.W.2d 919
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      The Cortinez Law Firm, P.A., by: Robert S. Tschiemer, for appellant.

      Evans Law Office, by: Janie M. Evans, for appellee.'
   Andree Layton Roaf, Justice.

This case is an appeal from the denial of a request for sanctions under Ark. R. Civ. R 11. We take jurisdiction under Ark. Sup. Ct. R. l-2(a)8.

Robert Cortinez, appellant, was appellee Brenda Brighton’s attorney in a divorce action in Garland County. On May 31,1989, Brighton’s husband quitclaimed his interest in two condominiums to Brighton and the parties were divorced June 1, 1989. There remained a dispute over the ownership of two boat slips located near the condominiums. On September 6, 1989, the judge in the divorce proceedings held the boat slips were personal property and that Brenda Brighton was the owner of those slips. As part of her payment for attorney fees to Cortinez, Brighton had conveyed her interest in one of the Hot Springs condominiums to him on May 30, 1989. It is with that transfer that the current case begins.

After the divorce, Brighton attempted to set aside the transfer of the condominium to Cortinez but did not prevail in that attempt. A dispute then arose between Brighton and Cortinez as to the ownership of the boat slip for the condominium conveyed to Cortinez. Brighton asserted it was hers by virtue of the September 1989 order finding it to be personal property, and pointed out that the agreement to sell the condominium to Cortinez included no mention or reference to the boat slip. On November 27, 1990, Cortinez sent a letter to Brighton’s attorney in which he asserted his ownership of the boat dock and threatened Brighton with criminal trespass if she “sets foot on the boat dock.” Brighton moved to Pulaski County in August 1992.

On August 4, 1993, Brighton filed an unlawful detainer action in Garland County against Cortinez, which he moved to dismiss on several grounds, including statute of limitations and res judicata. The trial court denied the motion and ordered Cortinez to file an answer to the complaint. Cortinez filed an answer on November 8, 1993, in which he first raised the issue of improper venue. On January 13, 1994, Cortinez moved to dismiss on the basis that venue was improper because both parties were residents of Pulaski County. On March 8, 1994, the trial court granted the dismissal on the basis of improper venue.

On March 18, 1994, Cortinez filed a motion under Rule 11 for attorney’s fees. He based his request on a claim of “bad faith” on the part of Brighton for filing suit in Garland County when she knew the property involved was personal property and that both the parties were Pulaski County residents. Brighton responded that Cortinez had waived any question of venue under Ark. R. Civ. P. 12(g) by failing to raise this issue in his motion to dismiss. A hearing on Rule 11 sanctions was held on April 25, 1994. The trial court held that if any mistake had been made on the part of Brighton’s attorney, the mistake was made in good faith and therefore the award of any fees to Cortinez would be denied. Cortinez appeals from that order.

Cortinez argues that the trial court misconstrued Rule 11 when it found Brighton had not acted in bad faith with respect to filing in the wrong county. The correct test for Rule 11 he argues, is not whether the error was one of good or bad faith, but whether the error could have been avoided if “reasonable inquiry” were made. Cortinez argues:

The court, by misinterpreting Rule 11, has not grasped the purpose of Rule 11, namely that it is not intended to only discourage intentional and malicious conduct, but also negligent conduct. Here at the minimum, the appellee’s conduct, and that of her attorney, would be classified as failure to reasonably inquire about the facts and the law prior to filing litigation.

Appellant’s general statement of the law on Rule 11, is essentially correct. There is no longer a subjective component to a review of attorney error. The test is an objective one: would the attorney have discovered the mistake of law or fact upon reasonable inquiry? Ward v. Dapper Dan Cleaners, 309 Ark. 192, 828 S.W.2d 833 (1992). “Good faith” enters in to the inquiry only when the law relied on is incorrect. The court then decides whether that reliance can be supported by a “good faith argument for the extension, modification, or reversal of existing law.” Ark. R. Civ. P. 11.

While there is arguably some merit to the point appellant makes on appeal, we do not address the argument as it has not been preserved for appeal. During the Rule 11 hearing, appellant alleged that appellee was well aware of appellant’s residency and the personal property status of the boat slip when she filed the case in Garland County. However, his argument was limited to whether the mistake was one of good or bad faith. The following exchange between the trial court and appellant reveal the limited ground on which appellant argued to the trial court.

Court: Is the defense saying that the argument was not made in good faith? Can there not be a mistake in good faith, thereby avoiding attorney’s fees?
Appellant’s attorney: Your honor, we believe that —
Court: That is a question from the court. I am not baiting you. I am just — lam looking at the rule now.
Appellant’s attorney: We do not believe that the Plaintiff in this case made the argument in good faith. Your honor, the Plaintiff herself has had four or five attorneys. She is well aware of the legal system. She knew she was a Pulaski County, Arkansas resident. She knew Mr. Cortinez was a Pulaski county resident. We do not think it was made in good faith.
* * * *
Court: And let us assume just for the purposes of argument that Ms. Evins made a mistake. Let us assume that, I am not holding that, but as I read the rule, I would have to find that it was not made in good faith, and Ms. Evins was just a tool of the plaintiff to harass and so forth. I am at a loss — I would be at a loss to find that in this case because of this history of it — I had to review — this file almost encompasses the file of a part of the litigation apparently down in Judge Smitherman’s court, and it appears that it has been hard fought on both sides. So the court is going to deny attorney’s fees and costs, and Ms. Evins, you prepare the order.
Ms. Evins: Thank you, your honor.
Court: I just cannot find — again let us assume there was a mistake. I think if it was a mistake, it was not a mistake that was in bad faith. All right. Thank you.

That was the end of the proceedings. No further comments were made by appellant and the order filed pursuant to this hearing stated that the motion for attorney’s fees was denied on the “basis of the court’s ruling ... set out in the transcript of the hearing.”

A review of the above portion of the hearing makes it clear the point argued on appeal was not raised below. On appeal, appellant argues the trial court applied the wrong test — that it is not a question of good or bad faith in making the error, but rather, the question is whether the mistake would have occurred if a reasonable inquiry had been made. Below however, this point and argument were never made to the trial court. In fact, the trial court specifically asked appellant if it would be possible to avoid attorney’s fees if a mistake were made in good faith. Appellant did not disagree with this statement. Rather, appellant impliedly agreed with the trial court by simply continuing his “bad faith” argument.

While the trial court’s test was not the correct test for a Rule 11 question, that is not relevant to the question of preserving an issue for appeal. If the grounds for an objection are changed on appeal, that is, raised for the first time on appeal, the argument is waived. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990); Vasguez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (1986). Even if there has been an error of constitutional proportion, if the objection is not properly preserved, it is waived on appeal. Wilson v. State, 272 Ark. 361, 614 S.W.2d 663 (1981); Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980).

Appellant has waived the argument he now makes on appeal, and we affirm the trial court on that basis.

Affirmed.

Glaze, J., concurs.

      Appellant stated that the proper venue statute was § 16-60-116.


author: Per Curiam.

text:
    Demetrius “Dee Dee” EDWARDS v. STATE of Arkansas
    CR 95-183
    894 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Paul D. Selby, for appellant.
    No response.
   Per Curiam.

Appellant, Demetrius Edwards, by his attorney, Paul Selby, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.

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

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


text:
    Joseph O’NEAL, et al. v. STATE of Arkansas
    CR 95-148
    896 S.W.2d 592
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Joseph P. Mazzanti III, for appellant.
    No response.
   Per Curiam.

Petitioner Joseph O’Neal was convicted of murder in the first degree, robbery and burglary, and he was sentenced to life imprisonment in the Arkansas Department of Correction. The judgment and commitment order was entered on July 19, 1994. A timely notice of appeal was filed, and, on August 5, 1994, the trial court granted petitioner’s motion for extension of time to docket appeal. The order stated the court reporter was to file the transcript within “seven months from the filing of the Notice of Appeal.”

On February 22, 1995, the petitioner filed a partial record with the Clerk and filed this petition for certiorari for complete record. On March 15, 1995, the petitioner tendered the complete record. In this case the record was tendered more than seven months after the entry of the judgment. See Ark. R. App. P. 5(b). It is the attorney’s duty to file the record on time. Franklin v. State, 318 Ark. 324, 885 S.W.2d 23 (1994). When a complete record is not available, a partial record will suffice. If the attorney will concede by affidavit within thirty days from the date of this per curiam that it was his fault that the record was not timely filed, or if other good cause is shown, then the motion will be granted.


text:
    Steve ROBINSON v. Joe O’BRYAN
    95-156
    894 S.W.2d 921
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Richard Quiggle, P.A., for appellant.
    No response.
   Per Curiam.

Appellant, Steve Robinson, by his attorney, has moved for a rule on the clerk. Robinson originally filed his case in Pulaski County Circuit Court. Joe O’Bryan, appellee, moved to dismiss the action arguing improper venue. Robinson replied, requesting a transfer of the case to Lonoke County Circuit Court. On July 28, 1993, the Pulaski County court transferred the case to Lonoke County. Lonoke County assigned the case a number, No. 93-308, and filed it.

The case rested with Lonoke County until February 1994 when O’Bryan attacked its filing there. Lonoke County sent the case back to Pulaski County, refusing to accept the transfer. Robinson then non-suited in Pulaski County and filed his case in Lonoke County. Lonoke County assigned the case a new number, No. 94-270. O’Bryan moved to quash service, and to strike and dismiss the complaint. On November 8, 1994, Lonoke County dismissed No. 94-270, with prejudice.

Appellant states in his motion that he filed a notice of appeal on November 17, 1994, apparently from the November 8, 1994, order. However, through a scrivener’s error, appellant states he used the first case number, 93-308, instead of the new number, 94-270, in the notice of appeal. Appellant noticed the error when getting the record from the Lonoke Clerk and immediately filed a second notice of appeal with the proper number, 94-270, on December 9, 1994.

The clerk in this court refused to accept the record as the December 9, 1994, notice of appeal was one day late. Appellant asks us to grant this motion, arguing that the first notice of appeal was timely filed and contained only an inadvertent error in the substitution of case numbers.

Appellant, however, has only included in the record the untimely notice of appeal from December 9, 1994, and not the timely notice from November 17, 1994. Having failed to supply this court with a sufficient record to make a determination, the motion for rule on the clerk is denied.


text:
    Kenneth K. WATANABE and Jessica L. Watanabe v. Ed H. WEBB and Ellinor Webb; Dixon Realty; John W. Williams; Guaranty Title Company; and Gene Weston
    95-3
    894 S.W.2d 601
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      The Rose Law Firm, A Professional Association, by: David L. Williams, for appellants.

      Anderson & Kilpatrick, by: Mariam T Hopkins, for appellees.
   Per Curiam.

Appellants Kenneth K. and Jessica L. Watanabe seek to appeal from a foreclosure decree entered on August 13, 1994 and order of confirmation on June 2, 1994, by the Garland County Chancery Court. In January and February 1995, appellees filed motions to dismiss, generally contending that the Watanabes’ notice of appeal and record were untimely filed. In support of their motions, appellees rely primarily on the recent cases of Scherz v. Mundaco Inv. Corp., 318 Ark. 595, 886 S.W.2d 631 (1994), and Alberty v. Wideman, 312 Ark. 434, 850 S.W.2d 314 (1993).

On January 31, 1995, the Watanabes responded to appellees’ dismissal motions, stating that appellees’ motions cannot be resolved without reaching the merits of the appeal and that the Scherz and Alberty cases are distinguishable and not controlling on the issue concerning whether the Watanabes’ appeal was timely filed. The Watanabes requested they be entitled to submit a fully developed brief. Based upon the foregoing motions and responses, we believed it would be best to delay ruling on appellees’ dismissal requests until this case was submitted on its merits. On February 3, 1995, the parties were notified of our decision to submit the dismissal motions with the briefs on the merits of this case.

On February 13, 1995, the Watanabes were granted seven additional days to file their brief. Instead of filing a brief, Watanabes’ counsel, Rose Law Firm, have moved for leave to withdraw because the Watanabes have failed to pay Rose Law Firm’s legal bills. The Watanabes, by other counsel engaged only to respond to Rose Law Firm’s motion, request Rose Law Firm’s motion be denied or alternatively, ask this court to decide the pending dismissal motions before they incur further expenses required in preparing and filing a brief.

This court passed on deciding appellees’ dismissal motions because Watanabes’ counsel, Rose Law Firm, asked for the opportunity to file a full brief on the procedural and other issues on appeal. Since Rose Law Firm now seeks to withdraw prior to filing a full brief in this cause, we believe it would be fairer to all parties to rule on the pending dismissal motions before deciding any subsequent or new motions, including Rose Law Firm’s request to withdraw as Watanabes’ counsel. Accordingly, we direct the clerk to place appellees’ motions and Watanabes’ responses on the regular docket so they may be submitted for decision.


text:
    Donald E. ZUCCO v. STATE of Arkansas
    CR 94-46
    894 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995
    No response.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Per Curiam.

The State moves for an order of this court directing Donald E. Zueco to retain counsel forthwith to represent him in his appeal, or, alternatively, to file with this court an Affidavit and Application to proceed informa pauperis. We note where the file of this matter in the Supreme Court Clerk’s office reflects that Michael Knollmeyer is an attorney of record. We granted the motion of Ralph John Blagg to be relieved as counsel for appellant Zueco on February 20, 1995, in part because Michael Knollmeyer was also shown as counsel of record. As appellant Zueco still has retained counsel of record, we deem the State’s motion to be moot.


author: Robert H. Dudley, Justice.

text:
    Ben BRADLEY, Jr. v. STATE of Arkansas
    CR 94-871
    896 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995

      Bryant & Henry, by; Barry A. Bryant, for appellant.

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

Ben Bradley, Jr., appellant, had an affair with Wanda Johnson, aged thirty-four, that lasted until she began dating Grant Perry, Sr., aged seventy-one. Wanda Johnson subsequently moved into Perry’s house. On July 8, 1992, a forlorn Bradley killed Perry. Bradley was convicted of first degree murder and sentenced to life imprisonment. We affirm the judgment of conviction.

Randy Perry, the victim’s son, testified that before the murder he was told that appellant and his father had gotten into an argument over Wanda Johnson and that appellant had pushed his father down. Wanda Johnson testified that about a month before the murder appellant “still wanted me to be his girlfriend” and “tried to get me back,” but that she would not talk to him. Bird-ell Jones testified that the night Grant Perry was murdered appellant tried to talk to Wanda, but Wanda refused to converse with him.

Sarah Thompson testified that the night of the murder she and Wanda went to the Perry home at about 10:30. Wanda used a brown-handled kitchen knife to cut some Spam to make sandwiches. Perry, who had been asleep in the bedroom, got up, ate a sandwich, and went back to the bedroom. Sarah Thompson further testified that, as she was leaving the Perry home about 11:00, she saw appellant outside. He walked her home, and during the walk to her home, expressed anger over Wanda’s relationship with Perry. He called Wanda and Perry sordid names. She went inside her home, went to bed, and was awakened about midnight and told that Grant Perry, Sr. had been murdered.

Wanda Johnson testified that she went to the bedroom and went to sleep after Sarah Thompson left. She heard a noise and awakened just as appellant turned a light on in the bedroom. She clearly saw appellant standing beside the bed brandishing a brown-handled kitchen knife, the same knife she had used earlier to cut the Spam. She testified that Perry grabbed an ax that was beside the bed and turned the light off. She said that appellant knocked Perry down and began “steady stabbing him.” Perry had the ax in his hand, but fell back on the bed. Appellant continued to stab and hit the victim. Wanda testified that she was cut on the leg during the struggle. She testified that the last place she saw the ax was on the floor in the bedroom. She ran from the home.

Ethel May Jones testified that somewhere around 11:00 or 11:30 appellant came to the back of her home. He was bloody and said, “I done killed Grant.” She said, “You’re going to the pen for life,” and he replied that he did not care because Wanda “is the only one [he] ever loved.” His hand was cut.

Robert Gorum, a criminal investigator, who was present when appellant was arrested later that night, said appellant’s hand was bleeding. He testified as follows:

[H]e and another fellow were sharing a lady and had gotten into an argument. The other person, I believe, Mr. Perry had pulled a knife on him. He took the knife away from him, that’s how he got cut. That he stabbed him, and then he and the lady had walked down the road, and then threw the knife in the bushes.

Peter Briggs, a deputy sheriff, testified that appellant told him he threw the knife away, but did not know where it was because it was dark.

Crime scene experts and a forensic pathologist established that the victim had twenty-four stab wounds. The wounds varied in size and shape and were in the left side of the face, the left and right sides of the chest, and the right leg. The fatal wound, eight inches deep, penetrated the left lung. Another cut, a' long cut, went from the lower back to the upper buttock. A forensic pathologist testified that in his opinion the five wounds on Perry’s fingers, hands, and arms were inflicted when he was trying to defend himself. Blood was found in the bedroom only, but for some unexplained reason the ax was found in the bathroom without any blood on it. All of the other physical evidence indicated that the victim never left his bedroom. In sum, the evidence of appellant’s guilt is overwhelming.

We first discuss appellant’s point of appeal involving the prosecutor’s comment on his right not to testify. The trial court instructed the jury:

A defendant has an absolute constitutional right not to testify. The fact that Ben Bradley did not testify is not evidence of guilt or innocence and under no circumstances, shall be considered by you in arriving at your verdict.

AMI Crim. 111.

In closing argument the prosector stated that, under the court’s instruction, even though the defendant’s right not to testify should not be considered evidence of guilt, at the same time, it should not be considered evidence of innocence. Appellant moved for a mistrial, arguing that the prosecutor had commented on his right not to testify by saying that it was not evidence of innocence. The trial court denied the motion on the ground that the State had not gone beyond the bounds of the instruction. Appellant assigns the failure to grant a mistrial as error.

The prosecutor’s comment was improper. In Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965), the trial court instructed the jury that it was the privilege of the defendants to testify or not. Id. at 843, 394 S.W.2d at 605. In closing, the prosecutor said, “You are instructed this is a privilege to them to either testify or not to testify. That is what the court says in that instruction.” Id. In reversing and remanding, we wrote: “Obviously, by arguing this instruction to the jury in that manner, attention was called to the fact that defendants had not taken the stand in their own behalf. This was error.” Id.

Although Griffin v. California, 380 U.S. 609 (1965), extended the protection of the Fifth Amendment to the states, the Arkansas Legislature has provided statutory protection of this right since 1885. See Craig Lambert, Note, Veiled Reference To Failure Of Defendant To Testify Constitutes Reversible Error, 8 U. Ark. Little Rock L.J. 747, 749 (1985-86). Act 82 of 1885, now codified as Ark. Code Ann. § 16-43-501, provides:

On the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors in this state, the person so charged shall, at his own request, but not otherwise, be a competent witness. The failure of any person so charged to make such a request shall not create a presumption against him.

Ark. Code Ann. § 16-43-501 (Repl. 1994). Early on, we held that violation of this statute would be “presumptively prejudicial.” Bridgman v. State, 170 Ark. 709, 710, 280 S.W. 982, 982 (1926). However, in Powell v. State, 251 Ark. 46, 471 S.W.2d 333 (1971), we relied on the state statutory harmless error provision and found that the defendant’s substantial rights were not violated by such an improper comment.

In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court declared that references to a defendant’s failure to testify violate the Fifth Amendment privilege against self-incrimination, but can be harmless error if it is shown beyond a reasonable doubt that the error did not influence the verdict. Id. at 615. Practical application of the Chapman test involves excising the improper remarks and examining the remaining evidence to determine if it can be shown beyond a reasonable doubt that the error did not influence the verdict. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).

Here, both the eyewitness testimony and the physical evidence of appellant’s guilt were overwhelming. Appellant would have been convicted without the prosecutor’s comment. Accordingly, we have no hesitancy in holding that, beyond a reasonable doubt, the error did not influence the verdict. Still, appellant asks us to reverse the case because of the trial court’s failure to grant a mistrial after the prosecutor made the comment. We decline to do so. The granting or denial of a mistrial lies within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse. Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992). Because the improper comment did not influence the verdict we cannot say that the trial court abused its discretion in refusing to grant a mistrial.

Appellant’s next point of appeal involves seating an alternate juror in place of a seated juror. Inez Eason was seated as a juror, but, on the third day of trial and after the State had rested, the trial court received a report that Eason was riding to court each day with a spectator, Josephine Haynes, and that Haynes’s son dated appellant’s mother. Juror Eason had not mentioned this during voir dire. The trial court conducted an extensive hearing and, in order to avoid any appearance of impropriety, seated an alternate juror in her place. Appellant moved for a mistrial. The trial court denied the motion, and appellant assigns the ruling as error.

Appellant argues that “[t]o remove a juror once the state rests for the reason given, primarily because of an appearance of impropriety, is simply an abuse of discretion. Defendant’s motion for mistrial should have been granted.” Appellant cites no authority for his argument, and we are not aware of any. We hold that the trial court did not err in excusing juror Eason and seating the alternate juror in order to avoid an appearance of impropriety. See Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6, cert. denied, 454 U.S. 1093 (1981). Since the trial court did not err in seating the alternate juror, it did not err in refusing to grant a mistrial.

Appellant assigns as error the trial court’s refusal to give his requested instructions on the lesser included offenses of second degree murder and manslaughter. The trial court refused to give instructions on the lesser included offenses on the ground that there was no rational basis to support such instructions. Appellant contends that his statements to the police, which were introduced, constituted some evidence that the victim attacked him with a knife and that he took the knife from the victim before stabbing him. From that factual basis, he argues that the lesser included offense instructions should have been given because we have held that “adequate provocation can occur when the victim is armed or is attempting to commit violence toward the defendant.” Rainey v. State, 310 Ark. 419, 423-24, 837 S.W.2d 453, 455 (1992).

We need not determine if the lesser included instructions should have been given because, even if they should have, the instructions proffered by appellant were incomplete and erroneous. The proffered instruction on second degree murder included only “knowingly” causing the death of another. See AMI Crim. 1503; Ark. Code Ann. § 5-10-103(a)(l) (Repl. 1993). It omitted “purposefully” causing the death of another. A person also commits second degree murder if “[w]ith the purpose of causing serious physical injury to another person, he causes the death of any person.” AMI Crim. 1503; Ark. Code Ann. § 5-10-103(a)(2). The question then becomes whether there was a rational basis to warrant the trial court’s giving an instruction for finding that appellant acted knowingly, but not purposely, in killing Perry. To ask the question is to answer it. Since the victim was stabbed twenty-four times, with one of the wounds being eight inches deep, it is obvious that there was a rational basis for finding that appellant acted purposely, and it would have been error to give an instruction that omitted the purposeful part of the definition.

Similarly, appellant’s proffered instruction on manslaughter omitted that part of AMI Crim. 1504 incorporating Ark. Code Ann. § 5-10-104(a)(l), which provides:

(a) A person commits manslaughter if:
(1) He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is a reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of the person in the defendant’s situation under the circumstances as he believes them to be.

Ark. Code Ann. § 5-10-104(a)(l) (Repl. 1993).

Appellant next argues that the trial court erred in refusing to grant a mistrial after the State used a peremptory chállenge to strike a black person from the jury panel. We do not consider that part of the point involving the failure to grant a mistrial because appellant did not request a mistrial. He only made a challenge to the jury panel under Batson v. Kentucky, 476 U.S. 79 (1986).

Appellant asked that the State provide a racially neutral explanation for striking Allen Morrison, one of four black persons who were potential jurors. The prosecutor replied that there was no systematic exclusion of black people, as two were excused by the court for cause, one was accepted as a juror, and the fourth, Morrison, was excused by the State. In any event, the prosecutor stated that the reason Morrison was excused was that the victim’s family provided the prosecutor with a note before voir dire began which said that Morrison was a friend of appellant’s family. Morrison did not disclose the friendship during voir dire, but subsequently did admit that he knew appellant’s sister.

Under Batson, once the defendant makes a prima facie case of purposeful racial discrimination in juror challenges, the burden of proof shifts to the State to show a racially neutral explanation. The showing of a prima facie case under Batson is threefold. First, the defendant must show that he is a member of a cognizable racial group. Batson, 476 U.S. at 96. Second, he is allowed to rely on the fact that the system of peremptory challenges constitutes a jury selection practice under which it is easy to exercise discrimination if one has a mind to do so. Id. Finally, he must show that the facts raise an inference that the prosecutor intended to discriminate. Id. In ruling on a Batson motion, a trial court shall consider all relevant circumstances, such as a “pattern” of strikes and the prosecutor’s questions and statements. Id. at 96-97.

If the trial court finds that the defendant has made a prima facie showing, the burden shifts to the State to provide a racially neutral explanation. Id. at 97. If the State’s explanation is suspect, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the State. Colbert v. State, 304 Ark. 250, 254-55, 801 S.W.2d 643, 646 (1990).

The standard of review for reversal of a trial court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Id. Appellant’s Batson challenge was based solely on the peremptory challenge of the one black juror. The trial court did not find a systematic exclusion, but still asked the prosecutor to proffer his reason for striking the prospective juror. The prosecutor then provided a racially neutral explanation which was confirmed by the juror. Thus, there was no error.

The facts involving appellant’s final point of appeal are as follows. The State sought to enhance appellant’s punishment under the habitual offender statute, Ark. Code Ann. § 5-4-501, and presented a prior aggravated robbery conviction. The docket sheet of the case bears the handwritten notations that appellant “waives an atty.” and “[w]aives an atty. after full exp,” and the judgment of conviction states that appellant waived an attorney. Appellant correctly argues that a conviction cannot be used to enhance punishment under the recidivist statutes unless the records of prior convictions show that the defendant was represented by counsel or waived counsel. Stewart v. State, 300 Ark. 147, 111 S.W.2d 844 (1989). Appellant contends that the docket sheet and judgment of conviction were insufficient to show that he had knowingly waived his right to counsel. A similar argument was thoroughly addressed and rejected in King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991). In that case, we recognized that while the constitutionally protected right to counsel will not be presumed from a silent record, a record which states that a defendant waived his right to counsel, while not sufficient when arguing violation of the right, is sufficient for a prior sentence to be used for enhancement purposes. Id. at 595, 804 S.W.2d at 362; see also Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988). The record stated that appellant had waived his right to counsel after full explanation and, as such, was sufficient to use the conviction for enhancement purposes.

Pursuant to Rule 4-3 (h) of the Rules of the Supreme Court, we have a duty to examine the record for prejudicial erroneous rulings adverse to appellant that would cause reversal. An examination of the record has been made, and there are no erroneous rulings adverse to appellant that cause reversal.

Affirmed.


author: David Newbern, Justice.

text:
    The ARKANSAS APPRAISER LICENSING AND CERTIFICATION BOARD v. Ralph W. BILES
    94-824
    895 S.W.2d 901
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995

      Winston Bryant, Att’y Gen., by: M. Wade Hodge, Asst. Att’y Gen., for appellant.

      Hobbs, Lewis, Mitchell, Garnett, Naramore & Strause, P.A., by: Ronald G. Naramore, for appellee.
   David Newbern, Justice.

Ralph W. Biles, the appellee, is a general appraiser certified by the Arkansas Appraiser Licensing and Certification Board. The Board placed Mr. Biles on probation for six months because it found an appraisal he had performed was deficient and in violation of its regulations. Mr. Biles appealed to the Garland Circuit Court which overturned the Board’s decision, declaring it to be contrary to law and fact, arbitrary and capricious, an abuse of the Board’s discretion, and not supported by substantial evidence. The Trial Court did not discuss the facts in its order or give reasons for its conclusions. We hold there was substantial evidence in support of the Board’s decision. We reverse the Trial Court’s decision and reinstate that of the Board.

Mr. Biles prepared an appraisal report on a parcel of land consisting of approximately 4.56 acres in Hot Springs. He was hired by the owner of the land to appraise it, apparently because of a purchase interest expressed by the United States Postal Service. The Board received a complaint concerning the appraisal and initiated an investigation. As a result, Mr. Biles was charged with violating the Uniform Standards of Professional Appraisal Practice (the Standards) which are incorporated by reference in the Board’s regulations.

The Board conducted a hearing. Richard Stephens testified as an expert that he found several parts of the appraisal to be in violation of the Standards. Specifically, the appraisal did not comply with the Standards relating to analysis of the highest and best use or the market valuation, and the certification of the appraisal was inadequate. He also testified the appraisal violated the Standards due to the use of 1980 statistics despite availability of 1990 census statistics, and failure to substantiate a $70,000 projected cost for dirt removal. Finally, he found the appraisal so confusing and incomplete that he could not use the appraisal to determine the land’s value.

Mr. Biles also testified at the hearing. When questioned by his attorney about an unexplained figure used in the report to adjust the value on the basis of the time it would take to sell it, he stated, “Well, we could have put two or three or four pages in the appraisal explaining all of this.” Later, during cross-examination, he added “we just didn’t put one [explanation] in this appraisal.”

Also on cross-examination, he was asked why he employed 1980 population statistics when the 1990 statistics were available. He first responded that “those were the things that we were in the process of upgrading,” apparently referring to an information system used in his office. Mr. Biles then stated he did not feel it was relevant to the value of the property because he talked about the increase in traffic flow for twenty years and over the past two years. He concluded by assuring he now includes the 1990 census information in his reports.

Mr. Biles was also asked about the estimate of $70,000 for removal of dirt and rock from the property. He answered that he personally got that estimate from the dirt contractor in writing and that it might have been logical to include such information.

The Board found the reasoning which supported the analysis, opinions, and conclusions in the appraisal was incomplete, that the test for the highest and best use was not addressed, and that the method applied in arriving at value was inadequate. The order concluded that the incompleteness of the appraisal constituted a violation of the Standards.

Any substantial evidence

The violations found by the Board were based on the Board’s adoption in its Regulation 1(0) of the Uniform Standards of Professional Appraisal and on the grounds for disciplinary action found in Regulation I(P). Section I(P)(1) provides that one ground for disciplinary action is the “Violation of any provision of the Arkansas Appraiser Licensing and Certification Act of 1991 or any of these regulations.” Section I(P)(4) lists other grounds which include “Any actions demonstrating un-trustworthiness, incompetence, dishonesty, gross negligence, material misrepresentation, fraud or unethical conduct in any dealings subject to the Act or these regulations.”

The Board made six findings of which the last four, numbered three through six, were specific findings of fact in support of its conclusion that the Standards were violated. The third finding was that “the reasoning that supports the analysis, opinions, and conclusions of the appraisal report is incomplete.” According to Standards rule l-l(b), “In developing a real property appraisal, an appraiser must . . . not commit a substantial error of omission or commission that significantly affects an appraisal.” In response to the allegation about use of the dated population statistics Mr. Biles admitted he was “in the process of upgrading” to the 1990 statistics but also testified to the effect that he had included the 1980 statistics as it was required. Another omission was that of the written estimate from the dirt removal contractor. That omission was a violation of Standard 2-2(h) and was compounded, according to Mr. Stephens, by the failure to list the contractor’s name as a source for the information as required by Standard 4-3(h).

Finding number four was that, while a discussion of the highest and best use was presented in the appraisal report, it did not address the tests for highest and best use. This finding was based on the testimony of Mr. Stephens who stated that the highest and best use was discussed but that the criteria or tests for determining the highest and best use, to the extent they were included, were placed in the report in such a way as to be confusing. Inclusion of the tests is required by Standard l-3(a).

The Board’s fifth finding was that, while the appraisal report stated that the cost approach and the income capitalization approach would not be used, both approaches were discussed in an inconclusive and incomplete manner, resulting in confusion to the reader of the report, thus violating Standard l-l(c).

The sixth finding was that the methodology used in determining valuation was inadequate.

Generally, when reviewing administrative decisions, the Court reviews the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, whether it was arbitrary and capricious, and whether there was an abuse of discretion. In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992); Arkansas ABC Bd. v. King, 275 Ark. 308, 629 S.W.2d 288 (1982).

To determine whether a decision is supported by substantial evidence, the Court reviews the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992); Livingston v. Arkansas State Medical Bd., 288 Ark. 1, 701 S.W.2d 361 (1986); Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d. 23 (1980).

To establish an absence of substantial evidence to support the decision it must be demonstrated that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusions. Beverly Enters. -Ark., Inc. v. Arkansas Health Servs., 308 Ark. 221, 824 S.W.2d 363 (1992). Substantial evidence is valid, legal, and persuasive evidence. Wright v. Arkansas State Plant Bd., supra.

Administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Wright v. Arkansas State Plant Bd., supra; First Nat’l Bank v. Arkansas State Bank Comm'r, 301 Ark. 1, 781 S.W.2d 744 (1989).

In view of the specific testimony of Mr. Stephens and Mr. Biles’ candid admissions that items not explained or included in his report should have been explained or included, we cannot say the Board’s findings and conclusions are not supported by any substantial evidence. Nor have we any reason to hold that the Board’s decision was arbitrary or capricious or contrary to law.

Reversed.