author: Per Curiam.

text:
    Robin K. SCHLESIER v. STATE of Arkansas
    CR 97-399
    957 S.W.2d 186
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998
   Per Curiam.

On December 11, 1997, the Honorable Robert Dudley was appointed the master to conduct the hearing in this contempt proceeding. It is necessary that a substitute master be appointed, and we hereby appoint the Honorable Jack L. Lessenberry to succeed Justice Dudley as the master in this matter. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether Nila J. Keels should be held in contempt.


source: Caselaw Access Project

license: Public Domain

text:
    Odes TOLBERT v. STATE of Arkansas
    CR 97-489
    959 S.W.2d 402
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998

      Appellant, pro se.
    No response.
   Per Curiam.

On October 17, 1996, judgment was entered reflecting that Odes Tolbert had been found guilty by a jury of four counts of possession of a controlled substance with intent to deliver. He was sentenced as a habitual offender to an aggregate sentence of six hundred months’ imprisonment. An appeal of the judgment was lodged in this court on April 29, 1997, by Mr. Tolbert’s retained attorney, Ray E. Hartenstein. On June 9, 1997, Mr. Hartenstein filed a motion to dismiss the appeal which said in pertinent part:

After reviewing the transcript of the trial in this matter, the appellant has determined that he will initially seek relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure rather than by appeal. . .Accordingly, the appellant seeks to dismiss his current appeal without prejudice to filing an appeal from his Rule 37 proceeding if appropriate relief is not obtained thereby.

Hartenstein filed with the motion a letter to our clerk certifying that a copy of the motion had been mailed to Tolbert. On July 7, 1997, we granted the motion to dismiss the appeal. A copy of this court’s order was mailed to Tolbert on that date by our clerk. Four months later on October 7, 1997, Tolbert filed the pro se motion which is now before us, seeking a belated appeal of the original judgment. We will treat the motion as a motion to reinstate the appeal.

Petitioner Tolbert contends that he was unaware that Hartenstein had filed the motion to dismiss the appeal until after the motion was granted by this court. He asserts that counsel’s action placed him in a “helpless and unjust” position and that he is entitled to appellate review of the judgment. Petitioner asks that he be declared indigent and that a writ of certiorari be issued by this court to bring up the record for the appeal of the judgment at public expense. He does not seek appointment of counsel. Whether Ray Hartenstein still represents him is unknown.

Petitioner was represented by retained counsel when the appeal was dismissed. This court was entided to rely on counsel’s representation that petitioner had been provided a copy of the motion to dismiss and that there was good cause to dismiss the appeal. Moreover, even if petitioner had not been aware that the motion had been filed, our clerk mailed a copy of this court’s mandate to the petitioner on the day it was issued. If petitioner did not approve of counsel’s action in obtaining dismissal of the appeal, it was incumbent on him to act promptly. Just as a convicted defendant may waive his right to appeal by failing without good cause to file a timely notice of appeal, a petitioner whose appeal is dismissed may waive his right to have the appeal reinstated by failing without good cause to move promptly for its reinstatement. Petitioner here has not demonstrated that there was a satisfactory reason for the delay of four months in fihng this motion and has otherwise failed to provide good cause to reinstate the appeal.

Motion denied.

       Petitioner does not state whether a Rule 37 proceeding was ever initiated in the trial court.


text:
    Linda STREET v. STATE of Arkansas
    CR 97-1
    957 S.W.2d 187
    Supreme Court of Arkansas
    Opinion delivered January 16, 1998
   Per Curiam.

The procedural background in this matter is set forth in our per curiam opinion delivered on December 18, 1997. Street v. State, 330 Ark. 853, 956 S.W.2d 866 (1997). Attorney A. Wayne Davis, counsel for appellant Linda Street, was cited to appear before this court on January 15, 1998, at 9:00 a.m. to show cause why he should not be held in contempt of this court for his failure to perfect appellant Street’s appeal in a timely manner. Id. Although John Wesley Hall, Jr., appeared on January 15, 1998, in his capacity as counsel for Mr. Davis, Mr. Davis did not appear.

At approximately 7:30 a.m. on January 15, 1998, Mr. Davis tendered to this court by facsimile the following pleadings: Entry of Not Guilty Plea, Motion for Continuance, and Motion for Reconsideration, for Rule on the Clerk and for Reinstatement of Appeal. All of these pleadings were tendered pro se, and none of the averments in the pleadings were made under oath.

Mr. Hall stated to this court that he knew nothing about the pleadings tendered by Mr. Davis, pro se. In fact, Mr. Hall stated that, notwithstanding several recent attempts to contact Mr. Davis, he had not been able to talk to him before the show-cause hearing.

Because Mr. Davis failed to appear before this court on January 15, 1998, as ordered by per curiam order on December 18, 1997, we hereby order the State Police to take immediate custody of Mr. Davis and deliver him forthwith to the Pulaski County Detention Facility, where he shall be held until such time as his appearance can be scheduled before this court.


text:
    Linda STREET and Jesse Dewayne WICKLIFFE v. STATE of Arkansas
    CR 97-1 and CR 96-108
    959 S.W.2d 744
    Supreme Court of Arkansas
    Opinion delivered January 21, 1998
   Per Curiam.

In our order issued January 16, 1998, we issued a bench warrant for the arrest and immediate detention of A. Wayne Davis, counsel for Appellant Linda Street, pursuant to Davis’s failure to appear before this court on January 15, 1998, to show cause why he should not be held in contempt for his failure to perfect Street’s appeal in a timely manner. See Street v. State, 330 Ark. 853, 956 S.W.2d 866 (1997) (per curiam); Street v. State, 331 Ark. 138, 957 S.W.2d 187 (1998) (per curiam).

Similarly, we had previously issued an order requiring Davis, as counsel for Appellant Jesse Dewayne Wickliffe, to appear before this court on October 16, 1997, and show cause why he should not be held in contempt for his failure to perfect Wickliffe’s appeal in a timely manner. See Wickliffe v. State, 330 Ark. 97, 952 S.W.2d 144 (1997).

A hearing was conducted on each of these matters on this date, during which this court granted Davis’s motion to have the issues in each case resolved simultaneously. Davis then entered pleas of guilty for his failure to perfect both appeals. We accepted Davis’s guilty pleas and, pursuant to the request of Davis and his attorney, John Wesley Hall Jr., we have agreed to allow Davis the opportunity to submit to this court affidavits in mitigation for his failure to perfect the appeals, provided that such affidavits are filed with the clerk of this court by 5:00 p.m., January 27, 1998. The matter will be taken under advisement pending the receipt of the affidavits.

Additionally, Davis entered a plea of not guilty to the failure to appear before this court as scheduled at 9:00 a.m. on January 15, 1998, and offered an explanation for his absence. Notwithstanding, we find Davis to be in direct contempt of this court for his failure to appear as scheduled. We wifi, however, permit Davis to submit an affidavit in mitigation (if he so desires) as to the finding of contempt, provided that such affidavit is filed with the clerk of this court by 5:00 p.m., January 27, 1998. We wifi reserve any decision as to the appropriate sanction for the contempt pending the receipt of such affidavit.

We further direct the Sheriff of Pulaski County to release Davis from custody, resulting from our bench order issued on January 16, 1998, subject to any other outstanding detainers or warrants, if any, of which the Sheriff is aware.


author: David Newbern, Justice.

text:
    Howard DEAN v. Hon. John B. PLEGGE
    CR 97-797
    958 S.W.2d 5
    Supreme Court of Arkansas
    Opinion delivered January 22, 1998
    [Petition for rehearing denied February 26, 1998.]

      Montgomery, Adams & Wyatt, PLC, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Petitioner Howard Dean seeks a writ of prohibition to prevent the Perry County Circuit Court from retrying him on a murder charge following a mistrial. Mr. Dean alleges that he filed a motion, pursuant to Ark. R. Crim. P. 28.1(d), to dismiss for lack of speedy trial in the Circuit Court and that the motion was denied. We must deny Mr. Dean’s petition for a writ of prohibition because the record and abstract do not contain the information necessary for us to rule on the issues presented in Mr. Dean’s petition.

A party seeking a writ of prohibition must produce a record that is sufficient for our review. See Ark. R. Sup. Ct. 6-1(a). The record must show the writ is clearly warranted. Sherwood v. Glover, 331 Ark 124, 958 S.W.2d 526 (1998). See also Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994); Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994).

In his statement of the case, Mr. Dean informs us that the mistrial occurred on February 12, 1996, and that his motion to dismiss was made more than a year later. Mr. Dean has, however, failed to include in the record presented to us a transcript of the speedy-trial hearing and the Trial Court’s findings; thus, we cannot know the periods of time that the Trial Court may have found to be excluded in accordance with Ark. R. Crim. P. 28.3. From the record presented, we have no way of knowing whether the Trial Court erred in denying the motion to dismiss. We cannot tell from the record that the writ is clearly warranted. See Dixon v. State, 314 Ark. 378, 863 S.W.2d 282 (1993).

In addition we point out that, in cases such as this one when there is no emergency or need for accelerated proceedings, briefs are required as in other cases. Ark. R. Sup. Ct. 6-1 (e). An abstract is, therefore, required. The petitioner’s abstract is flagrantly deficient as it does not include the motion to dismiss for lack of speedy trial, the hearing on the motion, and the basis of the Trial Court’s ruling. According to Ark. R. Sup. Ct. 4-2(a)(6), the abstract must contain a summary of all the documents necessary for us to obtain an understanding of the questions presented for review. Sherwood v. Glover, supra; Lewis v. State, 330 Ark. 618, 955 S.W.2d 904 (1997); Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996).

In Dixon v. State, supra, we refused to consider whether the Trial Court erred in denying the appellant’s motion to dismiss for lack of speedy trial when the appellant’s abstract did not summarize the proof at the hearing, the findings of fact by the Trial Court, or the written order of the Trial Court. We could not know the periods of time that the Trial Court found to be excluded, and we had no way of knowing whether the Trial Court erred.

Although Mr. Dean’s abstract reflects that the Trial Court denied his motion to dismiss, the abstract presented does not inform us of the basis of the motion or if there were periods of time found to be excludable from the one-year time period provided in Ark. R. Crim. P. 28.1.

As a part of his abstract, Mr. Dean included a stipulation purportedly signed by his counsel and the prosecutor that was filed with the Trial Court apparently subsequent to the speedy-trial proceedings conducted there. There is no indication that the stipulation was accepted, approved, or even seen by the Trial Court. The stipulation sets forth some facts with respect to the speedy trial issue, including dates showing the duration of certain continuances granted by the Trial Court. It then provides that two of the continuances are “the only contested continuances that are in need of review.” It does not, however, address the contents of the motion to dismiss, the speedy-trial hearing, or the basis of the Trial Court’s denial of the motion to dismiss. Even if the stipulation had addressed those crucial matters, we would not accept it as a substitute for a record. See Rodgers v. U. of A. Med. Sciences, 275 Ark. 139, 628 S.W.2d 11 (1982).

Petition denied.


author: Tom Glaze, Justice.

text:
    ARKANSAS HEALTH SERVICES AGENCY and Arkansas Health Services Commission; Arkansas Health Care Association v. DESIDERATA, INC.
    97-259
    958 S.W.2d 7
    Supreme Court of Arkansas
    Opinion delivered January 22, 1998

      Winston Bryant, Att’y Gen., by: Vicki M. Pickering, Asst. Att’y Gen., and Glen Hooks, Asst. Att’y Gen., for appellants.

      Friday, Eldredge & Clark, by: Bill S. Clark, for appellee.

      Meeks & Jernigan, P.A., by: George O. Jernigan, Jr., for intervenor-appellant.
   Tom Glaze, Justice.

In 1994, Desiderata filed an application with the Arkansas Health Services Agency, requesting a permit of approval for a new seventy-bed nursing home to be constructed near Maumelle. Desiderata’s application provided that the proposed home is intended to serve developmentally disabled and mentally retarded elderly persons, as well as those diagnosed with Alzheimers and HIV. Its application also proposed to serve members of what is referred to as the normal segment of the elderly community needing long-term care.

The Agency denied Desiderata’s application, stating that the application failed to meet all of the required criteria under Ark. Code Ann. § 20-8-106(b) (Repl. 1991). Desiderata appealed the Agency decision to the Arkansas Health Services Commission, and after a public hearing on November 28, 1994, the Commission voted to affirm the Agency. Upon petitioning for judicial review, the trial court reversed the Commission’s decision, and in doing so, held the methodology employed by the Agency and Commission was arbitrary and capricious and violated the Equal Protection Clause. The trial court further ruled the Commission’s decision was not supported by substantial evidence. We hold the trial court erred.

We first mention our inability to reach, at least directly, the trial court’s Equal Protection Clause ruling, because that constitutional issue was never raised before the Commission. In this respect, we cite the settled law in Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982), where the court of appeals adopted the rule that, even though the Workers’ Compensation Commission may not have the authority to declare statutes unconstitutional, such constitutional issues should first be raised at the Administrative Law Judge or Commission level because such issues often require an exhaustive analysis that is best accomplished by an adversary proceeding, which can be done only at the hearing level. The Hamilton court concluded that requiring constitutional issues to be considered by the Commission can assure such issues will be thoroughly developed before an appellate court is asked to rule on a statute’s validity. The rule in Hamilton has been consistendy followed by the court of appeals, see Green v. Smith & Scott Logging, 54 Ark. App. 53, 54, 922 S.W.2d 746 (1996), and we believe the rule is a sound one and applicable here.

Desiderata did not raise its Equal Protection Clause argument until its appeal to circuit court; thus, under the Hamilton rule, it is barred from arguing that issue now. However, even if Desiderata had raised equal protection as an argument at the administrative level, this court has held that establishing that different applicants are treated differently does not prove the denial of equal protection. Second Baptist Church v. Little Rock Historic Dist. Comm’n, 293 Ark. 155, 732 S.W.2d 483 (1987). And while Desiderata argues the Health Services Agency and Health Services Commission have failed to give a sufficient reason or rationale for treating established nursing homes more favorably than new ones, we disagree. However, for present-case analysis and decision making, the fundamental issues actually before us to be decided are (1) whether the Commission’s methodology and actions were arbitrary and capricious, and (2) whether its decision is supported by substantial evidence. See Arkansas Dep’t of Human Servs. v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995). In this respect, our review is not directed toward the circuit court but toward the Agency and Commission decisions, recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Id.

In the initial review of Desiderata’s application, the Agency considered the four factors set out in § 20-8-106(b), which read as follows:

(1) Whether the proposed project is needed or projected as necessary to meet the needs of the locale or area in terms of the health care required for the population or geographic region;
(2) Whether the proposed project can be adequately staffed and operated when completed;
(3) Whether the proposed project is economically feasible; and
(4) Whether the project will foster cost containment through improved efficiency and productivity.

As related to factor (1) the Agency determined that its population-based methodology requires a “need” for additional beds and an “occupancy rate” for Pulaski County of at least 94.5% for the previous calendar year. The Agency found that Desiderata had not demonstrated a “need” in the county or shown that the occupancy rate was satisfied. Specifically, it found an excess of fifty-one beds over the county’s need, and the county’s occupancy rate fell short of the required 94.5% rate. Other concerns of the Agency listed under the “need” factor were that, for the calendar year used under its methodology policy, 389 beds were empty on any given day in the county, and that 222 approved but still unlicensed beds existed in the county.

At the Commission hearing, Desiderata did not suggest that the Agency’s methodology policy be changed, but it did contend the Agency’s need and occupancy-rate determinations were erroneous. Although Desiderata argues at length that the Agency Director, Orson Berry, had failed to account for some 94 beds in his calculation of bed needs, it concedes that it must also satisfy the methodology county occupancy rate of 94.5%. As a consequence, even with Desiderata’s suggested corrections in the counting of beds, the Agency occupancy rate remained at 85.04%, or 9.46% below the required occupancy rate. Thus, the crux of Desiderata’s argument turns on its contentions that the Agency and Commission erred in calculating the 85.04% rate figure for Pulaski County.

In its brief, Desiderata points out that the 85.04% Pulaski County occupancy rate was calculated by including private-pay nursing homes and homes with Medicaid and Medicare residents. It argues that private-pay homes should not be included because of their historically low occupancy rates and their ability to manipulate the rate. The trial court agreed with Desiderata’s argument, relying in part upon the testimony of Larry Taylor, a health-planning consultant, who, among other things, said that if a private-pay nursing home wanted to change its method of marketing, that home could change its occupancy rate. However, in relying on this portion of Taylor’s testimony, the trial court and Desiderata ignored other pertinent parts. For example, Taylor related that Medicaid and private-pay beds are licensed by the same authority and have to meet the same standards. He stated private-pay beds have always been counted in health planning in this state and others, and if you fail to do so, the state will immediately have “too many beds because anybody that wants to do private pay can just come in and start building nursing homes.” Taylor disagreed, too, with Desiderata’s speculation that, by counting private-pay homes, Pulaski County could never reach the Agency’s methodology occupancy rate of 94.5%. Also significant, while Desiderata introduced evidence reflecting private-pay facilities in Pulaski County that have low occupancy rates, the same proof shows that five of those homes’ rates had increased substantially over a three- or four-year period, and one of them reported an occupancy rate as high as 93.53%.

Desiderata further questions the accuracy of the Agency’s occupancy-rate calculations, urging that the 85.04% figure was erroneously reached by using unreliable data that the Agency obtained from a telephone survey of the private-pay homes. In other words, while the Agency obtains occupancy-rate information for Medicaid-certified nursing homes from the Department of Human Services Office of Long-Term Care, it acquires such occupancy data from private-pay facilities by telephone survey. This telephone data, Desiderata contends, is unreliable and therefore fails to support the Agency’s rate calculations. Desiderata and the trial court are wrong.

In Arkansas Health Planning & Development Agency v. Hot Spring County Memorial Hospital, 291 Ark. 186, 723 S.W.2d 363 (1987), this court held that telephone survey information, and other like data, can constitute substantial evidence in an administrative hearing. And while such occupancy-rate data might be obtained in another manner, Taylor testified that the use of a telephone survey is the only objective way for the Agency to obtain such data from private-pay facilities. Other than Desiderata’s attorney’s opening statement before the Commission, Desiderata presented no evidence that questioned the accuracy of the Agency’s data.

From the foregoing, we conclude substantial evidence was more than ample to uphold the Commission’s occupancy-rate calculation of 85.04% and its finding that the required 94.5% county occupancy rate was not shown. And while Desiderata does not appear to challenge the Agency’s findings that Desiderata’s proposed project was not economically feasible and did not foster cost containment as required under § 20-8-106(b)(3) and (4), we believe the record sufficiently supports those findings as well.

In addressing the “economically feasible” consideration, the Agency found Desiderata’s profit estimates appeared unrealistically optimistic for several reasons. For instance, Trudy James, the Executive Director of the Regional AIDS Interfaith Network, RAIN-Arkansas, testified that it has been difficult to find nursing homes that would accept AIDS patients due to the fear of mixing AIDS patients with other patients. However, Dr. Carl Johnson, a member of the Commission and a physician who has worked with just such a mix, stated that a problem does exist when mixing or interacting AIDS patients with demented ones because of potential health and legal concerns if there ever was an interaction between the two. The Agency questioned whether a facility could attract private-pay patients who are financially able to pay more than Medicaid patients. Taylor further pointed out that Desiderata had not identified special staff personnel that would focus on the combined groups to be served, and that, in serving special groups, Desiderata had not shown a sufficient population in any of those groups to justify the existence or financial feasibility of a seventy-bed nursing home. And finally, the Agency found that, because there presendy existed 222 approved but unlicensed beds that have not, as yet, entered the market place, the Agency doubts the financial feasibility of a new nursing home.

The final consideration was the Agency’s finding that Desiderata’s proposed facility failed to promote cost containment or improve efficiency or productivity. Desiderata offered no evidence showing cost containment would result from its proposed project. Taylor, however, testified Desiderata’s land site was in an unincorporated area located three miles from Maumelle, and municipal services such as for water, sanitation, fire protection, and ambulance needs are not readily available. The Agency also opined that a county with low occupancy and 222 beds yet to enter the market place could not improve the efficiency or productivity of existing services.

In conclusion, we address Desiderata’s charge that the Agency’s methodology is arbitrary because an “established” nursing home that has an occupancy rate of 96% for the year can obtain up to 10% of their licensed capacity or an additional ten beds (whichever is greater) even though the county occupancy rate of 94.5% or a need is not shown. In short, Desiderata submits if no county need can be shown under the Agency’s population- and-utilization-based methodology, then all applicant requests for new beds should be denied. As a part of the same argument, Desiderata also claims the Agency’s methodology arbitrarily favors established nursing homes by ranking nursing home apphcants as follows:

1. Applicants whose facility had a 96% occupancy rate or greater for the previous calendar year. These applicants would be eligible for 10% increase in their licensed capacity or 10 beds whichever is greater.
2. Applicants who propose to replace older facilities. These applicants would be eligible for a 20% increase in their licensed capacity.
3. Applicants who have a facility proposing to expand to 70heds would be eligible to expand to 70 beds. Applicant facilities with less than 70 beds and more than 60 licensed beds would be eligible for a 10 bed increase.
Applicants qualifying under [1] who also propose to add more than 10% or 10 beds will have a preference (for up to 35 beds) over applicants proposing a new facility.

The Agency and Commission counter Desiderata’s arguments, stating that there are valid reasons for providing a preference to established nursing homes. They offer, once again, Taylor’s testimony to support their position. Taylor explained that there are counties in the state where there are only two nursing homes. He said that you may have one operator who provides excellent services and maintains a 96% occupancy, but the second one may offer very poor quality care, and have only a 60% occupancy rate. As a consequence, the county occupancy rate could never meet the established 94.5%. The Agency decided that, if a facility maintained a 96% occupancy rate for a year, it would enable that facility to expand in order to allow patients a choice of a better facility. Taylor added that the Agency had not acted arbitrarily in utilizing the 96% rule, since he knew of only one nursing home in Pulaski County whose application had been approved under the rule.

The Agency and Commission further justify the preference extended to existing facilities because the methodology fosters cost containment and aids in the control of spiralling health-care costs. They cite the case of Statewide Health Coordinating Council v. General Hospitals of Humana, Inc., 280 Ark. 443, 660 S.W.2d 906 (1983), a case involving prior law governing certificates of need to hospitals, where the court discussed the economic reasons for regulating the health industry. There the court noted that the policy of restricting hospital construction stems from the belief that competition among hospitals, unlike competition in the market place, does not reduce the cost of in-patient hospital services to the consuming public. Id. Based on this reasoning, the Agency and Commission maintain that the State’s permit of approval requirement for the construction or expansion of nursing home facilities is based on the State’s interest in controlling healthcare costs and that the overbuilding of facilities can be responsible for high costs of medical services.

Although the trial court in its order expressly stated that it considered much of Taylor’s testimony improper and the “need” evidence suspect and unreliable, we are unable to say the evidence set out and discussed hereinabove was not substantial or failed to support the Commission’s decision. We are reminded that the rule is well settled that this court must affirm an agency’s decision if there is substantial evidence to support it, and in reviewing the record, the evidence is given its strongest probative force in favor of the agency’s ruling. Files v. Arkansas State Highway & Transp. Dep’t, 325 Ark. 291, 925 S.W.2d 404 (1996); Arkansas Dept. of Human Servs. v. Kistler, supra. Here, the trial court, we believe, wrongly discounted, and at times altogether dismissed the consideration of, proper evidence presented to the Commission, and erred in substituting its own judgment for that of the Agency and Commission. See Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988). Consequently, we reverse and remand the trial court’s decision.

       The Commission without a hearing had adopted the Agency’s ruling earlier on May 24, 1994, but the Commission reconsidered its decision upon Desiderata’s request.

       This court later held the court of appeals was obliged to decide the constitutional issues after the issues had been argued and briefed before the Commission and court of appeals. Hamilton v. Jeffrey Stone Co., 293 Ark. 499, 739 S.W.2d 161 (1987).

       The Agency and Commission did not question Desiderata’s ability to staff and operate its proposed facility, so only three of the four factors are in issue.

       These additional findings were made since the Agency is not limited only to the four considerations named in § 20-8-106(b).


text:
    Anthony Leon KIMBLE v. STATE of Arkansas
    CR 97-909
    959 S.W.2d 43
    Supreme Court of Arkansas
    Opinion delivered January 22, 1998

      Darrel Blount, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Leon A. Kimble was convicted of aggravated robbery and sentenced to life imprisonment. He raises three points for reversal; all lack merit, so we affirm.

Kimble first challenges the trial court’s refusal to suppress the testimony of the victim, Bob Wilhite, concerning a pretrial photographic hneup which Kimble claimed was unduly suggestive and tainted Wilhite’s in-court identification of him.

Wilhite owned a restaurant in Mt. Ida where he was robbed and shot twice on September 16, 1996. After the crime (and later at trial), he described his assailant to the police as a clean-shaven, short-haired black male who had a light complexion, thin lips, and a thin, narrow nose. The perpetrator carried a weapon Wilhite believed to be a blue steel .32 automatic. Based on this description, the police uncovered two separate suspects, Kimble and a L. A. Fugate. The police initially placed Fugate’s picture along with five other black males in a photo hneup and showed the lineup to Wilhite, who could not identify any one of the men as the one who shot him. After obtaining Kimble’s picture, a second lineup was shown to Wilhite. This time, the hneup contained the same photos as appeared in the first lineup, but differed only by the substitution of Kimble’s picture for Fugate’s. Wilhite quickly identified Kimble as his assailant.

In a pretrial motion, Kimble requested that the results of the lineups be suppressed because the manner in which the police handled the photographs was unduly suggestive. After the trial court took Kimble’s motion under advisement, it ultimately ruled that, although one could very seriously argue the second photo lineup was suggestive, the totality of the circumstances were such that the trial court found Wilhite’s identification was sufficiently reliable for the matter to be submitted to the jury. The trial court applied applicable case law correctly.

Our court has held that, even when the identification procedure is impermissibly suggestive, the trial court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be submitted to the jury, and then it is for the jury to decide the weight the identification testimony should be given. Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996). In determining reliability, the following factors are considered:

(1) the prior opportunity of the witness to observe the alleged act;
(2) the accuracy of the prior description of the accused;
(3) any identification of another person prior to the pretrial identification procedure;
(4) the level of certainty demonstrated at the confrontation;
(5) the failure of the witness to identify the defendant on a prior occasion; and
(6) the lapse of time between the alleged act and the pretrial identification procedure. Id.

Here, Wilhite related that he could see Kimble “very well” when the robbery was committed. He said that he remembered the perpetrator was a black male with thin facial features and light complexion, and that his features were “pronounced and well lit.” Wilhite never identified any other person as the perpetrator and added that the robber’s slim facial features were easy to recognize. When shown the photo lineup with Kimble’s picture, Wilhite said he was convinced Kimble was the robber. Wilhite never failed on a prior occasion to identify Kimble and only a few days had elapsed between the time of the robbery and when Wilhite selected Kimble from the lineup. Thus, Wilhite’s identification and the circumstances surrounding it were refiable. Based on this evidence, we cannot say the trial court was clearly erroneous in rejecting Kimble’s suppression motion.

Kimble next challenges the trial court’s denial of his motion for mistrial which he made due to a statement from one of the State’s witnesses concerning Kimble’s prior imprisonment.

Stacy Robinson testified that, as a neighbor of Kimble’s girlfriend, Katherine Lupinek, she had had a conversation with the couple in her home. When questioned by the State about the subject of that conversation, Robinson began, “. . . he told me that he had gotten out of prison about a year and a half ago. . . .” Kimble immediately objected arguing that the State was intentionally attempting to elicit testimony about prior convictions, and that a mistrial was in order because the jury had been tainted by the testimony. The State responded that it was not trying to elicit testimony regarding Kimble’s prior conviction, but, rather, was trying to get to the essence of the conversation between Robinson and Kimble, which would show that Kimble tried to buy a gun from Robinson, but she declined because Kimble said that he had just gotten out of prison. Also, the State revealed that Robinson’s entire statement, including her reference to Kimble’s prior prison record, had been disclosed during discovery proceedings. The court denied Kimble’s request for relief.

Any reference to a defendant’s prior conviction during the guilt phase of a criminal trial results in some prejudice to the defendant. Heard v. State, 322 Ark. 553, 560, 910 S.W.2d 663 (1995). Declaring a mistrial, however, is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Id.; see also Furlough v. State, 314 Ark. 146, 150, 861 S.W.2d 297 (1993). Here, although some prejudice resulted from Robinson’s testimony, it was not so injurious as to warrant a mistrial, especially in light of the fact that no further testimony was elicited regarding Kimble’s prison stay. The trial court is in a better position to determine the effect of the remark on the jury and here the court concluded the reference was insufficient to warrant a mistrial. Heard, 322 Ark. 553, 560, 910 S.W.2d 663, 667.

Furthermore, an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Id. This court has concluded that an admonition is sufficient to cure a reference a witness made to a defendant’s “previous record.” Id. Here, such an admonition would have been sufficient to cure any prejudice in the instant case, but Kimble never requested one. It was clearly Kimble’s obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal. See Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993).

As for Kimble’s final argument, he persists that it was error for the trial court to allow testimony concerning evidence seized during an alleged illegal warrantless search of a motel room rented to his girlfriend Lupinek.

The testimony regarding the warrantless search and the items seized were as follows. Upon information that a suspect fitting the perpetrator’s description was accompanying a guest at a local motel, Deputy May, along with his Captain and Investigator Butch Godwin, entered the motel room without a warrant with the permission of the motel’s manager. Once inside, the officers noticed the room key on the nightstand. The continuation of the search revealed a bloody towel, and, in the wastebasket, an envelope with Lupinek’s address on it. Further information uncovered at the address on the envelope led to a second residence, where the nickname and possible whereabouts of Kimble were discovered. Kimble and Lupinek were then traced to Kimble’s parents’ home in Florida, where the two were arrested and waived extradition to Arkansas.

As a preliminary matter, the State asserts that the argument is not preserved for our review, because Kimble failed to file a motion to suppress the evidence at least ten days in advance of the trial date, as is mandated by A.R.Cr.P. 16.2(b). Rule 16.2 does not mandate the denial of every motion which is untimely, and in the absence of a timely objection by the State during trial, we cannot conclude that the motion to suppress was not properly before the trial court or that the trial court’s ruling on it was not properly preserved for review. See Butler v. State, 309 Ark. 211, 214, 829 S.W.2d 412 (1992).

In reaching the merits of Kimble’s argument, we nevertheless hold that Kimble lacks standing to object to the search on Fourth Amendment grounds. The registration card adduced at trial showed Lupinek had rented the motel room. The card showed that two people were to occupy the room, but nowhere was Kimble’s name shown. The manager of the motel testified that, sometime between 5:00 p.m. and 7:00 p.m., Lupinek filled out the registration card, paid $40.00 in cash, and later that evening the couple left the motel together in Lupinek’s car.

In Rockett v. State, 318 Ark. 83, 883 S.W.2d 478 (1994) (Rockett I), we acknowledged that one registered at a motel as a guest is protected against unreasonable searches and seizures. See Stoner v. California, 376 U.S. 483 (1964). However, in the companion case to Rockett I, Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995) (Rockett II), we further concluded that Rockett’s accomplice, Nooner, had never proved an expectation of privacy in the motel room in question, because the room had been registered only in Rockett’s name, and because Nooner had failed to present any evidence that he spent anything other than a brief period of time in the room.

It is clear that a proponent of a motion to suppress has the burden of establishing that Fourth Amendment rights have been violated. See Rakas v. Illinois, 439 U.S.128 (1978). Those rights are personal in nature. Id.; Rockett II, supra. In the present case, as in Rockett II, more was needed to establish a privacy interest in the room. Kimble has failed to present sufficient proof to support his standing to raise the issue of an unreasonable search and seizure. In sum, the trial court properly allowed the testimony concerning the seized items.

Affirmed.

       The State contends that, because Kimble failed to reproduce the lineup photographs and include them in the abstract as required under Rule 4-2(a)(6) of the Rules of the Supreme Court, the court should not consider the point of error. See per curiam at Appendix at 329 Ark. _ (June 30, 1997), where court redesignated Arkansas Supreme Court Rule 4-2(a)(5) to be (a)(6). Because Rule 4-3(h) requires us to review all rulings adverse to appellant evidencing prejudicial error in life cases, we address Kimble’s argument. We note that this court mistakenly failed to perform a 4-3 (h) review in a similar case. See Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995).


author: Donald L. Corbin, Justice. Newbern, J., Tom Glaze, Justice,

text:
    Michele EDGIN and Tracy Edgin v. ENTERGY OPERATIONS, INC.
    97-264
    961 S.W.2d 724
    Supreme Court of Arkansas
    Opinion delivered January 22, 1998

      Dunham & Faught, P.A., by: James Dunham, for appellants.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Julia L. Bus-field, for appeEee.
   Donald L. Corbin, Justice.

Appellants Michele and Tracy Edgin filed a negligence action against AppeEee Entergy Operations, Inc., for injuries that Michele Edgin sustained while working at Entergy’s nuclear plant in London as a security guard. During the time she was working at the nuclear plant, Michele Edgin was employed by the Wackenhut Corporation. AppeEants appeal the order of the Pope County Circuit Court granting Entergy’s motion for summary judgment. AppeEants argue that the trial court erred in granting summary judgment on the basis of an agreement contained in Michele Edgin’s employment application, which forecloses any action by Edgin against Wackenhut’s clients for injuries sustained by her that are compensable under the Workers’ Compensation Act. This question is one of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(17)(i). We find no error and affirm.

The amended complaint reveals the foEowing facts. On or about April 15, 1995, AppeEant Michele Edgin was employed by Wackenhut as a security officer. Wackenhut had been employed by Entergy to provide security services at its nuclear plant in London. Edgin had been assigned to work at Entergy’s nuclear plant and was to perform security checks on the doors inside the plant. She was trained to go through the door, make sure that the door was secured, make her presence known, and then move on to the next door to be checked. Each door to be checked was pressurized by creating a vacuum from the inside. On the date in question, Edgin was making a routine check of one of the doors when, upon trying to open the door, she found that the pressure was too high and that the door could not be pulled open. While attempting to open the door a second time, the vacuum on the other side of the door slammed the door shut, causing Edgin to lose her grip and her body to slam against an iron object behind her. As a result, Edgin suffered physical injuries.

Edgin alleged in her complaint that Entergy had sole and exclusive control on the amount of pressure to be placed inside each door. She alleged further that the door she was trying to open when she was injured had been “written up” on at least two previous occasions as being difficult to open or for having caused false alarms for one reason or another. Edgin alleged that Entergy had a duty to keep the pressure adjusted so that routine security checks could be made by employees of Wackenhut, and that the breach of this duty was the proximate cause of her injuries. Edgin alleged damages for injuries to her lower back in excess of $9,000, a loss of earnings and earning capacity in excess of $100,000, and expenses for pain and suffering in excess of $50,000. Tracy Edgin claimed that as a result of the injuries to his wife, he had sustained a loss of consortium entitling him to damages in excess of $50,000.

Entergy filed a motion for summary judgment, arguing that Michele Edgin was an employee of Wackenhut at the time of the accident and that she had already received workers’ compensation benefits for her injuries. Entergy contended that the claim was barred because Edgin had signed an agreement in consideration of her employment in which she specifically waived and forever released any right that she might have had in the future to make claims or bring suit against any client of Wackenhut for damages based upon injuries covered under workers’ compensation laws. Exhibit “A” attached to the motion for summary judgment was a photocopy of the agreement, contained on the last page ofEdgin’s employment application, which provides in pertinent part:

(2) in recognition of the fact that any work related injuries which might be sustained by me are covered by state Workers’ Compensation statutes, and to avoid the circumvention of such state statutes which may result from suits against the customers or clients of Wackenhut based on the same injury or injuries, and to the extent permitted by law, I HEREBY WAIVE AND FOREVER RELEASE ANY RIGHTS I MIGHT HAVE to make claims or bring suit against any client or customer of Wackenhut for damages based upon injuries which are covered under such Workers’ Compensation statutes.

Entergy also argued that Tracy Edgin’s claim of loss of consortium was derivative of and extinguished by the release and waiver signed by Michele Edgin. The trial court granted Entergy’s motion, and this appeal followed.

The standard for appellate review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. R.J. Jones Excavating Contr., Inc. v. Firemen’s Ins. Co., 324 Ark. 282, 920 S.W.2d 483 (1996). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.

The sole issue on appeal is whether the agreement signed by Michele Edgin is enforceable by Entergy. It is a well-settled principle of law that a contract made for the benefit of a third party is actionable by such third party. See, e.g., Howell v. Worth James Constr. Co., 259 Ark. 627, 535 S.W.2d 826 (1976); Cate v. Irvin, 44 Ark. App. 39, 866 S.W.2d 423 (1993). It is not disputed that Entergy was a third-party beneficiary of the agreement signed by Edgin, despite the fact that Entergy was not specifically identified in the agreement by name. Entergy would no doubt benefit from such an agreement, whereby Wackenhut intended to shield its clients from being held liable for injuries to Wackenhut employees assigned to perform jobs for such clients, provided that the injuries were covered by this state’s workers’ compensation laws. Thus, the question here is not whether the agreement may be enforced by Entergy, but rather, whether the agreement is capable of being enforced against Edgin.

The common law pertaining to master and servant has long recognized that an employer or master may not, by contract in advance, absolve itself from liability for injuries sustained by its employee or servant that are caused by the employer’s or master’s own negligence. See, e.g., Pittsburgh, C., C. & St. L. Ry. Co. v. Kinney, 115 N.E. 505 (Ohio 1916); Pugmire v. Oregon Short Line R.R. Co., 92 P. 762 (Utah 1907). Such agreements were considered to be void as against public policy. Id. The agreement at issue in this case does not, however, purport to absolve the employer of any and all liability. Instead, it provides that in exchange for employment, the employee relinquishes any additional claims for work-related injuries, which are covered by workers’ compensation benefits, against the employer’s clients or customers. Accordingly, the agreement is not by virtue of its contents per se void as being against public policy.

The issue then is whether the language of the agreement clearly identifies that which the employee is relinquishing in exchange for employment. The parties agree on the general principle that contracts that exempt a party from liability for future negligence are not favored by the law and are strictly construed against the party relying on them. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990). In Farmers Bank, the issue on appeal was the admissibility of an exculpatory clause in the bank’s rental agreement for a safety deposit box signed by the appellees, which provided that the “undersigned customer holds the Farmers Bank harmless for loss of currency or coin left in this box.” Id. at 550, 787 S.W.2d at 646. In holding that the trial court was correct in excluding the signature card from the jury, this court stated that it “has never upheld an agreement purporting to release a party from liability for his own negligence before it occurred.” Id. This court went on to state:

The rationale behind the numerous decision [sic] invalidating so-called releases given before liability arises is based upon the strong public policy of encouraging the exercise of care. When construing such release contracts, this court has said that it is not impossible to avoid liability for negligence through contract; however, to avoid such liability, the contract must at least clearly set out what negligent liability is to be avoided.

Id. at 550-51, 787 S.W.2d at 646-47 (citations omitted) (emphasis added). This court concluded that the language of the exculpatory clause on the signature card did not expressly exempt the bank from liability for its own negligence, as it did not clearly set out what negligent liability was to be avoided.

Similarly, in Firstbank of Arkansas v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993), this court declined to reverse the trial court’s ruling that the contract between Firstbank and the insurance company did not release the bank from any liability for its fraud or deceit. This court stated that there was no authority to support the bank’s argument that an agreement may effectively exonerate one from liability for fraudulent conduct in inducing another to enter into a contract. This court stated that the reason for disfavoring such agreements is based upon the public policy of encouraging the exercise of reasonable care. “While it is not impossible for such an agreement to be enforceable, the clause must clearly set out the negligence for which liability is to be avoided.” Id. at 445, 850 S.W.2d at 313 (citing Farmers, 301 Ark. 547, 787 S.W.2d 645).

Appellants argue that the agreement in this case does not specifically set out what negligent liability is to be avoided. We disagree. We are persuaded by Appellee’s argument that the agreement is clear and unambiguous and only releases the clients of Wackenhut from liability for work-related injuries sustained by a Wackenhut employee that are covered by the workers’ compensation statutes. By signing the employment application, an employee is not forfeiting his or her right to receive any compensation for work-related injuries; rather, the employee is merely agreeing to waive an additional remedy against a client of Wackenhut in exchange for employment with Wackenhut. In this respect, we cannot say that the agreement violates public policy by discouraging the employer or its clients from exercising reasonable care. Nor can we say that the language of the agreement did not clearly identify what the employee was giving up in exchange for employment. The employer is not attempting to escape liability entirely, but is, instead, attempting to shield its clients from separate tort liability for those injuries that are covered by workers’ compensation, unlike the agreements at issue in Farmers Bank and Firstbank.

Furthermore, our interpretation of this agreement is not inconsistent with the sound public policy considerations that form the basis of our workers’ compensation laws. Nor is it inconsistent with this court’s previous holdings in Daniels v. Riley’s Health & Fitness Ctrs., 310 Ark. 756, 840 S.W.2d 177 (1992), and National Union Fire Ins. v. Tri-State Iron & Metal, 323 Ark. 258, 914 S.W.2d 301 (1996), which involved the application of the dual-employment doctrine. In both of those cases, this court held that the workers, who were employed by temporary employment agencies and were injured while working their assigned jobs for a special employer, were not entitled to bring suit against those special employers, as such claims were barred by the exclusive-remedy provision of our Workers’ Compensation Act.

Appellants additionally argue that the agreement contains factually inaccurate information, in that it states that any work-related injury is covered by workers’ compensation. We are not persuaded by this argument. When the agreement is read in toto, it is clear that the employee agrees to waive any rights she might have to bring suit against a client of Wackenhut only if the injuries sustained by the employee are in fact covered by workers’ compensation. Here, there is no dispute that Michele Edgin received workers’ compensation benefits for the injuries in question. Accordingly, under the terms of the agreement, she is precluded from bringing suit against Entergy for those same injuries, as Entergy is a client of Wackenhut.

Lastly, Appellants contend that the trial court’s ruling must be reversed because Entergy failed to demonstrate the authenticity of the agreement, which was attached as an exhibit to its motion for summary judgment. During oral argument before this court, Appellants argued that it was error for the trial court to grant summary judgment on the basis of an unauthenticated document. We do not reach the merits of this argument, because Appellants failed to make this specific objection below. An appellant must make a specific objection that apprises the trial court of his or her current argument and may not change the argument on appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). Absent such a specific objection informing the trial court of the nature of the error alleged on appeal, this court will not reverse. Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996).

Here, the only time that the authentication of the document was even remotely discussed was through two ambiguous references made by Appellants in their brief filed in response to Entergy’s motion for summary judgment. Appellants did not raise the issue as a separate point in the response itself, nor did they support the references made in their brief with any argument or authority, such that the trial court would have perceived that they were specifically challenging the authenticity of the exhibit. Clearly, such an argument could have been directly made if it was in fact a disputed issue.

Affirmed.

Newbern, Glaze, and Imber, JJ., dissent.

Newbern, J.,

dissents because the agreement at issue violates the policy of encouraging the exercise of reasonable care.

Tom Glaze, Justice,

dissenting. I respectfully disagree with the majority opinion. In my view, the opinion contravenes statutory law, public policy, and case law. In short, the opinion adopts a rule which will be coercively applied against employees, whereby employers can compel employees, in exchange for hiring them, to waive any right of redress for any injury sustained resulting from a negligent act of the employers’ clients or customers. If employees refuse to waive their rights, they simply will not be hired, or if already employed, will lose their jobs.

Initially, Entergy’s argument is beguiling. It says Michelle Edgin, when applying for a job with her employer Wackenhut Corporation, agreed to waive her claim for any job-related injury she may sustain resulting from the negligence of one of Wackenhut’s customers, because Edgin would already be receiving Workers’ Compensation benefits for the injury. The waiver, however, makes no mention that the Workers’ Compensation law specifically provides that her making a claim for Workers’ Compensation benefits shall not affect her right as an employee to sue any third party who may have negligently caused her injury. See Ark. Code Ann. § 11-9-410 (Repl. 1996). (Emphasis added.)

Indisputedly, any agreement whereby an employee waives his right to compensation benefits is invalid. Ark. Code Ann. § 11 — 9— 108(a) (Repl. 1996). Section 11-9-108(a) also provides that no contract shall operate to relieve the employer or carrier, in whole or in part, from liability under Chapter 9 of the Workers’ Compensation law. This statutory provision is designed to protect employees against the practice of unscrupulous employers to avoid compensation liability by having employees sign a contract waiving all their rights to compensation in consideration of being employed. Bryan v. Ford, Bacon & Davis, 246 Ark. 327, 438 S.W.2d 472 (1969).

While in the present case, Michelle was not asked by Wackenhut to waive her compensation benefits in exchange for an opportunity to work, she was requested, before hiring her, to release any legitimate negligence action she would have against Wackenhut’s customers. Wackenhut, by law, must furnish its employees Workers’ Compensation coverage and that law in no way authorizes it, as an employer, to protect its customers against liability those customers may have under § 11-9-410(a). Surely employer Wackenhut should not be able to entice business customers by assuring them immunity from suit that might arise under § 11-9-410(a). Wackenhut should not be able to force an employee to waive in futurity his or her statutory right against a third-party tortfeasor in exchange for Wackenhut giving a job to the employee. Arkansas statutory law establishes public policy, see Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), and here that law and policy gives an employee the right to maintain an injury action in court against any third party, and Wackenhut, or any employer, has no authority to divest its employees of that right.

Even if Wackenhut’s waiver provision was not void as against public policy, another reason requires the trial court’s reversal. I would add that this court has never upheld an agreement purporting to release a party from liability for his own negligence before it occurred. Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993). The reason for disfavoring such clauses is based upon the public policy of encouraging the exercise of reasonable care. Id. at 445. While it is not impossible to avoid liability through contract, the contract must at least clearly set out what negligent liability is to be avoided. Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972). Contracts which exempt a party from liability for negligence are not favored by the law, and they are strictly construed against the party relying on them. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990); Gulf Compress Company v. Harrington, 90 Ark. 258, 119 S.W. 249 (1909).

In her application for employment with Wackenhut, Michelle Edgin signed the following release or waiver which reads in pertinent part:

In recognition of the fact that any work-related injuries which might be sustained by me are covered by state Workers’ Compensation statutes, and to avoid the circumvention of such state statutes which may result from suits against the customers or clients of Wackenhut based on the same injury or injuries, and to the extent permitted by law, I HEREBY WAIVE AND FOREVER RELEASE ANY RIGHTS I MIGHT HAVE to make claims or bring suit against any client or customer of Wackenhut for damages based upon injuries which are covered under such Workers’ Compensation statutes.

Entergy argues that the release is clear and unambiguous and therefore valid. However, the clause stating that “any work related injuries which might be sustained by me are covered by state Workers’ Compensation statutes” is erroneous and misleading. Not all work-related injuries are covered by workers’ compensation. Further, the clause does not clearly set out what negligent liability is to be avoided. Taken literally, this language could release Entergy for even intentional torts. Again, such an interpretation would be against public policy.

Imber, J., joins this opinion.


author: Donald L. Corbin, Justice.

text:
    Mishon WRIGHT v. STATE of Arkansas
    97-1042
    959 S.W.2d 50
    Supreme Court of Arkansas
    Opinion delivered January 22, 1998

      Stephen E. Morley, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Mishon Wright appeals the order of the Pulaski County Circuit Court denying his motion to transfer the charges against him to juvenile court. We have jurisdiction of this interlocutory appeal. Ark. Sup. Ct. R. 1-2(a)(11); Ark. Code Ann. § 9-27-318(h) (Supp. 1997). We cannot say the trial court’s decision to retain jurisdiction of the case was clearly erroneous, and therefore we affirm.

Pursuant to section 9-27-318(b)(l), Appellant was charged in circuit court, by two separate informations, with three counts of aggravated robbery, two counts of theft of property (one felony, one misdemeanor), and one count of committing a terroristic act. Appellant filed a motion to transfer the charges to juvenile court, asserting that his prior juvenile history does not indicate that he is incapable of being rehabilitated. Appellant asserted further that he was not of sufficient emotional maturity to appreciate the seriousness of the offenses for which he was charged. After a hearing on the motion to transfer, the circuit court decided to retain jurisdiction of the case, based upon Appellant’s extensive juvenile record. Appellant was seventeen years old when the hearing was held on his transfer motion. Appellant now asserts that the trial court erred in refusing to transfer his charges to juvenile court. We find no merit to his assertion of error and affirm the circuit court’s decision to retain jurisdiction.

During the transfer hearing conducted on July 10, 1996, Appellant presented the testimony of one witness, his mother Brenda Wright. Mrs. Wright stated that Appellant had a juvenile record, beginning in 1990, but that he had never been offered any type of counseling or rehabilitation program from the juvenile system. Instead, she stated, Appellant had only been punished by the juvenile system. She stated that the only violent offense for which Appellant had been involved was a third-degree battery that occurred in 1991, and that he had not been violent at home. She stated that during the time that Appellant was involved in the juvenile system, they were never offered family counseling or any kind of counseling at all. She stated that she could not recall whether Appellant had ever been evaluated for counseling purposes. Her position was that Appellant had always been placed in the training school and that his emotional needs had been ignored by the juvenile system. She indicated that Appellant was currently in the training school, but that he was in a different program (“JUMP”) than before and was doing well. She stated that Appellant was currently working on obtaining his high school equivalency diploma.

On cross-examination, however, Mrs. Wright admitted that when Appellant was placed on probation by the juvenile court, he was ordered to participate in various programs, including Stepping Stone Special Reintegration, Changing Directions, and Diversion programs. She also admitted that when Appellant was in the custody of the Offices of Youth Services (OYS), he received treatment, but she denied that the programs were actually treatment programs. She maintained that although Appellant may have been ordered to participate in such programs, no one followed through to make sure he actually participated.

The prosecution did not put on any testimony; instead, the prosecutor chose only to describe the basis of the current charges and to introduce into evidence the court records of Appellant’s prior juvenile history. As to the charges listed in the first information, case number CR 96-1079, the prosecutor stated that on November 29, 1995, Appellant and several males approached Charles Williams, as he was walking down the street, and asked Williams what was up with his jacket, a Starter jacket. Appellant and the other males eventually jumped out of their car and attacked Williams and stole his jacket. One of the males had a gun and hit Williams with it. Williams later viewed a photographic lineup and identified Appellant as one of the persons who assaulted him and stole his jacket. Appellant was subsequently charged with aggravated robbery and theft of property.

As for the offenses charged in the second information, case number CR 96-1080, the prosecutor stated that Don Forrest and his son were sitting in their car at a railroad crossing, waiting for a train to pass, when a black male approached them and told them to get out of the car. Almost simultaneously, the guardrail at the crossing came up and the train passed. Forrest then sped off in his car and the male fired three or four shots at the car, one of which entered the car and barely missed Forrest’s son. Later that same date, at a nearby Fina station, Appellant approached Aletha Cannon, who was on the telephone, and demanded at gunpoint that she give him her car. Cannon complied. As a result of these two incidents, Appellant was charged with two counts of aggravated robbery, one count of theft of property, and one count of committing a terroristic act.

The prosecutor then offered as evidence Appellant’s prior records as a juvenile offender, which demonstrated that he was found delinquent of the following offenses:

October 10, 1990 Theft of Property; Appellant placed on probation for three months, ordered to attend school regularly, and to write a letter of apology to the victim.
March 25, 1992 Third-Degree Battery; Appellant placed on indefinite probation, ordered to pay restitution to the victim in the amount of $1,006 and to complete the Diversion program.
March 11, 1993 Fleeing; Appellant continued on probation and ordered to enter and complete the Stepping Stone Special Reintegration program, Diversion program, and to participate in the Changing Directions program over the summer.
August 16, 1993 Theft by Receiving (of an automobile) and Fleeing; Appellant committed to OYS and ordered to pay restitution to the victim in the amount of $457.
December 15, 1993 Obstructing Governmental Operations; Appellant was ordered detained and his probation officer was instructed to pursue placement for him at Watershed; Appellant was subsequendy released to his mother for twenty-four-hour supervision and was ordered to attend Watershed on a daily basis.
November 22, 1994 Breaking and Entering; Appellant committed to OYS.
May 6, 1996 Minor in Possession of a Handgun on School Property and Obstructing Governmental Operations; Appellant committed to OYS until the age of eighteen, with a recommendation that he be placed in the serious offender program and that he receive counseling and educational programs.

The records further reflect that during the time that Appellant was engaging in the above offenses, from 1990 through 1996, his probation was revoked several times by the juvenile court. Additionally, Appellant failed to appear for various hearings, requiring the juvenile court to issue “pick up” orders for his return. Similarly, during this time period, both his mother and his father failed to appear for various hearings, resulting in the court’s issuance of show cause orders for them, with his mother being held in contempt of court on one occasion. After hearing the testimony and receiving the evidence, the trial court made the decision to retain jurisdiction of the current charges in circuit court on the basis of Appellant’s extensive juvenile record.

A defendant seeking a transfer from circuit court to juvenile court has the burden of proving that a transfer is warranted under section 9-27-318(e). McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). A circuit court’s decision to retain jurisdiction of criminal charges against a juvenile must be supported by clear and convincing evidence. Section 9-27-318(f); McClure, 328 Ark. 35, 942 S.W.2d 243. Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Id. When reviewing the denial of a motion to transfer to juvenile court, we view the evidence in the light most favorable to the State. Id. We do not reverse a circuit court’s decision to retain jurisdiction unless the decision is clearly erroneous. Id.

When deciding whether to retain jurisdiction of or to transfer a case to juvenile court, the factors for the circuit court to consider are: (1) the seriousness of the offense and whether the juvenile used violence in committing the offense; (2) whether the offense is part of a repetitive pattern of adjudicated offenses leading to the conclusion that the juvenile is beyond rehabilitation in the juvenile system; and (3) the juvenile’s prior history, character traits, mental maturity, or any other factor reflecting upon the juvenile’s prospects for rehabilitation. Section 9-27-318(e). A circuit court does not have to give equal weight to each factor, nor does evidence have to be presented as to each factor. McClure, 328 Ark. 35, 942 S.W.2d 243; Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996).

Appellant does not dispute the seriousness of the offenses with which he is currently charged. In fact, he concedes that the charges against him contain violence. Notwithstanding that concession, he argues that when the evidence is considered as a whole, the trial court’s decision was erroneous because the testimony given by Mrs. Wright establishes that he is not beyond rehabilitation and that he should be dealt with by the juvenile system, rather than the adult penal system. We disagree.

The trial court was clearly justified in denying the transfer of the current charges to juvenile court based solely on the fact that Appellant’s prior juvenile court record indicates that he is beyond rehabilitation by the juvenile system. Mrs. Wright’s testimony that Appellant was never offered any treatment or rehabilitation programs by the juvenile court system was directly contradicted by the juvenile records presented by the prosecution. Appellant’s prior juvenile record is not only extensive, but also demonstrates a pattern of offenses that have escalated in seriousness, with the last offense involving Appellant’s possession of a handgun at school. Moreover, the current offenses charged in circuit court appear to be part of a repetitive pattern of offenses, especially those charged in the second information. Where, as in the present case, there is evidence that the current felony charges were part of a repetitive pattern of offenses, that past efforts at rehabilitation in the juvenile court system have not been successful, and that the pattern of offenses has become increasingly more serious, these factors alone prevent us from holding that the trial court’s ruling on the transfer motion was clearly erroneous. Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994).

Additionally, the fact that Appellant is now nineteen years old is relevant to his prospects for rehabilitation in the juvenile court system and is a factor that this court has considered important in reviewing the denial of a transfer motion. Jensen v. State, 328 Ark. 349, 944 S.W.2d 820 (1997). We agree with the State’s argument that Appellant cannot be committed to a juvenile facility for rehabilitation based upon the current charges unless he is currently committed to such a facility. Appellant argues that because he was in the custody of the Office of Youth Services at the time of the transfer hearing, “he might well be a candidate to stay there.” Appellant’s argument is unpersuasive. This court has repeatedly stated that although Ark. Code Ann. § 9-28-208(d) (Supp. 1997) provides for an extension of the commitment time for juveniles beyond age eighteen under certain circumstances, “it presupposes that the youth was committed upon reaching eighteen and that the commitment will continue.” Id; see also Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996). Thus, because the record in this case is devoid of any evidence that Appellant is currently committed to the Office of Youth Services, it is not apparent that Appellant’s commitment could be extended pursuant to section 9-28-208(d).

Accordingly, given that Appellant’s current age may prevent him from being committed to a juvenile facility, that his prior juvenile record demonstrates a lengthy and escalating pattern of offenses, and that he concedes that the current charges involve violence, we hold that the trial court’s decision to retain jurisdiction of the current charges was not clearly erroneous. We note, however, as the State has pointed out, that the one count of misdemeanor theft of property must be filed in juvenile court, as the prosecutor has no discretion to file that charge in circuit court. See section 9-27-318 (a) (3). We therefore affirm the decision of the trial court, with the modification that the misdemeanor theft charge be transferred to the jurisdiction of the juvenile court.

Affirmed as modified.


author: Robert L. Brown, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES, St. Francis Division of Children and Family Services v. Richard THOMPSON
    97-269
    959 S.W.2d 46
    Supreme Court of Arkansas
    Opinion delivered January 22, 1998

      Candice B. Dickson, for appellant.

      Rieves & Mayton, by: Eric Newkirk, for appellee.
   Robert L. Brown, Justice.

Appellant Arkansas Department of Human Services, St. Francis Division of Children and Family Services (DCFS) appeals the circuit court’s order reversing the final order of the Appeals and Hearings Office of the Department of Human Services (DHS) and directing that the name of appellee Richard Thompson be removed from the central registry for the collection of records of cases involving allegations of child maltreatment. Because we conclude that there is substantial evidence to support the final order of DHS, we affirm the agency order and reverse the order of the circuit court.

On August 9, 1995, DCFS received a report that Richard Thompson had sexually abused his fourteen-year-old stepdaughter, JS. An investigation was conducted by DCFS, and on August 28, 1995, the investigative report concluded that there was some credible evidence of child maltreatment.

Thompson requested a hearing to review the determination by DCFS, and a hearing was held before a DHS hearing officer, Sue Tolzer. At the hearing, DCFS presented testimony from its investigating caseworker, Brenda Lewis, and the victim, JS. Brenda Lewis testified that JS told her that for the past three years Thompson had touched her sexually. The incidents included Thompson fondling and sucking her breasts, and once exposing his penis to her and taking her hand and trying to make her touch his penis. More recently, the abuse had escalated to his fondling her and inserting his finger in her vagina. On occasion, he would touch her sexually while “popping” her back or wrestling with her.

JS gave a very similar account at the hearing but with more detail. She explained that the encounters usually occurred in the middle of the night or early in the morning when Thompson would enter her room to wake her up for school. The abuse recently was occurring one to three times a week. Brenda Lewis and JS both testified that Charlene Thompson, JS’s mother, had once become suspicious of Thompson when she entered her daughter’s room and found Thompson rubbing JS’s upper torso. Charlene Thompson could not see whether he was rubbing JS’s front or back because she was not wearing her glasses.

Thompson’s counsel contended that JS fabricated the allegations because she was angry with him for Hmiting her activity with her new boyfriend. Charlene Thompson, JS’s half-brother, Craig Yarbrough, and Thompson himself all testified in his behalf. Charlene Thompson admitted that initially she believed her daughter about the sexual abuse and was suspicious about Thompson’s actions in JS’s room on that one particular occasion. But she added that her daughter had never complained to her about Thompson’s actions in any way. She also testified that JS had a serious problem with lying. She further stated that she had never noticed any unusual behavior by JS or Thompson after he left her bedroom. She concluded that her daughter was not telling the truth about what Thompson had done to her. Craig Yarbrough, JS’s half-brother, testified that JS had never told him about any problem she had with Thompson. Thompson testified that he had been cooperative with everyone investigating the matter and again denied the charges.

The DHS hearing officer issued a final order in which she concluded that there was credible evidence to support the allegations that Thompson had sexually abused JS. Thompson then filed a petition for judicial review in the circuit court under the Administrative Procedure Act. See Ark. Code Ann. § 25-15-212 (Repl. 1996). The circuit court heard oral arguments from counsel and entered an order finding that there was no credible evidence to support the allegations of sexual abuse by Thompson. The court ordered DHS to remove Thompson’s name from the central registry.

On appeal to this court, DCFS’s first point concerns the standard of review. The agency argues that we must review the orders of the circuit court and state agency to determine if there was some credible evidence to support the agency’s decision and then decide whether the circuit court abused its discretion. Thompson responds that the only question on review is whether there was some credible evidence to support placing Thompson’s name in the central registry. Both parties direct this court’s attention to Crawford/Sebastian County SCAN v. Kelly, 300 Ark. 206, 778 S.W.2d 219 (1989).

Review of administrative agency decisions, both by the circuit court and by appellate courts, is limited in scope. Thomas v. Arkansas Dep’t of Human Serv., 319 Ark. 782, 894 S.W.2d 584 (1995); Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994). The review by appellate courts is directed not to the decision of the circuit court but to the decision of the administrative agency. Hankins v. Department of Finance & Admin., 330 Ark. 492, 954 S.W.2d 259 (1997); Thomas v. Arkansas Dep’t of Human Serv., supra. As with all appeals from administrative decisions under the Administrative Procedure Act, the circuit court or appellate court may reverse the agency decision if it concludes:

(h) [T]he substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.

Ark. Code Ann. 25-15-212(h) (Repl. 1996). See also Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992). For purposes of judicial review, we have described the considerable deference to be given to an agency decision:

We have recognized that 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, 311 Ark. at 130, 842 S.W.2d at 45.

Turning to the instant case, DCFS argues that DHS’s decision was supported by credible evidence and that the decision was not arbitrary, capricious, or characterized by an abuse of discretion. We observe that the sole basis for the circuit court’s reversal of that decision was the court’s de novo review of the record and its finding that there was no credible evidence to support sexual abuse by Thompson. Thus, we initially must decide whether the circuit court invoked the correct standard of review.

In Crawford/Sebastian County SCAN v. Kelly, supra, we used the statutory standard of “some credible evidence” to affirm the state agency’s decision. At the time Kelly was decided, the applicable statute was Ark. Code Ann. § 12-12-516(a) (1987), and it read in pertinent part:

[ujnless an investigation of a report conducted pursuant to this subchapter determines that there is some credible evidence of alleged abuse, sexual abuse, or neglect, all information identifying the subject of the report shall be expunged from the central registry forthwith. [Emphasis added.]

We concluded in Kelly as follows:

Under Ark. Code Ann. § 12-12-516, the apposite question is whether there is some credible evidence of alleged child abuse to support the maintenance of appellee’s name in the State Central Registry, not whether there is substantial evidence of such abuse.

Kelly, 300 Ark. at 209, 778 S.W.2d at 221.

Since the Kelly decision in 1989, the applicable section of the Child Abuse Reporting Code dealing with child maltreatment investigations and the requirement that some credible evidence exist for the inclusion of a perpetrator’s name in the central registry has been amended several times. See Act 1334 of 1997; Act 1341 of 1995; Act 809 of 1995; Act 1126 of 1993; Act 1208 of 1991, now codified at Ark. Code Ann. § 12-12-512 (Repl. 1995, Supp. 1997). Throughout these amendments, the test has remained the same that entry of a name of one who engages in child maltreatment will be entered on the central registry when some credible evidence supports the agency decision.

We are now confronted with the question of whether our reasoning in Kelly was correct on the proper standard to use in our review. We conclude that it was not. The Administrative Procedure Act makes it perfectly clear that the circuit courts and appellate courts review state agency decisions to determine whether they pass muster under the six criteria set out in § 25-15-212(h). Thus, under the APA it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record to determine whether some credible evidence of child maltreatment exists. Rather, we review the case to ascertain whether there is substantial evidence to support the agency decision or whether the agency decision runs afoul of one of the other criteria set out in § 25-15-212(h). This court was simply incorrect when we said in Crawford/Sebastian County SCAN v. Kelly, 300 Ark. 206, 778 S.W.2d 219 (1989), that we review a decision to determine whether there is some credible evidence of child abuse. We overrule the Kelly case on this point.

Using the proper standard of review, we hold that substantial evidence does exist to support the agency’s decision. JS testified in detail about Thompson’s sexual abuse over the course of three years. Her mother, Charlene Thompson, even admitted to her own suspicions on one occasion, though she later recanted and testified that she believed her daughter was not telling the truth about Thompson’s abuse. This proof easily qualifies as substantial evidence supporting the state agency’s final order. In a similar vein, we have held repeatedly that the testimony of a rape victim, standing alone, meets the substantial evidence criterion. See, e.g., Puckette v. State, 324 Ark. 81, 918 S.W.2d 707 (1996); Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994).

The order of the circuit court is reversed and the decision of DHS is reinstated.

       JS testified that recently it was occurring two to three times a week, but the findings of the hearing officer included one to three times a week.


text:
    Abram PEEBLES v. STATE of Arkansas
    CR 96-944
    958 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered January 22, 1998

      Craig Lambert, for appellant.

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

In 1990, appellant Abram Peebles was convicted of the rape of his three-year-old nephew, M.C., and sentenced to forty years in prison. His conviction was affirmed on appeal. See Peebles v. State, 305 Ark. 338, 808 S.W.2d 331 (1991). In 1995, the federal district court granted Peebles habeas corpus relief conditioned on the State’s awarding him a hearing on a new-trial motion under Ark. R. Crim. P. 36.4. After the hearing, the Pulaski County Circuit Court denied Peebles’s motion. He now appeals from that order and raises numerous assignments of error for why his representation at trial was ineffective and failed to satisfy Sixth Amendment requirements.

Prior to the underlying trial, the trial court held a hearing to decide whether M.C.’s statements about the charged abuse could be relayed to the jury by his mother under the child-hearsay exception, Ark. R. Evid. 803(25). The court made no ruling on M.C.’s competency but did rule that the mother could so testify.

At the underlying trial, Peebles’s three-year-old nephew, M.C., did not testify. The State’s case consisted of two witnesses. Virginia Ghere, M.C.’s mother and Peebles’s sister, testified that on the day in question, she allowed her son to watch television in Peebles’s trailer in the trailer park in North Little Rock. Later that day, she returned to Peeble’s trailer and saw him pulling up her son’s shorts. Peebles, according to Virginia Ghere, was naked and his penis was erect. She testified that her son told her about Peebles after they left the trailer: “He bit my dingdong. I bite his dingdong.” M.C. added, according to Virginia Ghere: “And we fight dingdongs,” and “I got some milk from his dingdong.” She said she took the boy to Arkansas Children’s Hospital for an examination.

The second witness at trial was Dr. Jim Mark Ingram, who at the time was a resident at Children’s Hospital in Little Rock. He examined M.C. for the possibility of sexual assault and testified that he used a Wood’s lamp to discover whether there was any sperm or semen on the boy’s body. Dr. Ingram explained that through the use of the Wood’s lamp, he found a fluorescent substance consistent with sperm present on the boy’s mouth, chin, abdomen, torso, and left hand.

The State rested, and Peebles’s counsel moved for a directed verdict based on lack of proof of penetration under Ark. Code Ann. § 5-14-101 (1)(A) (1987). The trial court denied the motion. The defense counsel then put on a case which consisted of testimony from the State Crime Lab’s chief serologist who stated that there was no evidence of semen on oral swabs and rectal swabs taken from M.C. or on a blue washcloth taken from the trailer. Defense counsel also called Peebles’s youngest sister and his mother, both of whom related that M.C. had a tick bite on his penis, the implication being that this was the bite he referred to in his conversation with Virginia Ghere. The youngest sister, Melanie Layne, testified that Peebles and Virginia Ghere were “always fighting” and that M.C. told Layne that he asked Peebles for milk and Peebles got him milk and cookies. Another witness, Delena Davis, testified, but the State’s objection was sustained regarding alleged statements made by Virginia Ghere to her about Ghere’s hatred toward Peebles. The basis for the sustained objection was that the statements were too remote in time.

At the Rule 36.4 hearing before the Pulaski County Circuit Court following the federal district court’s order of conditional habeas corpus, Peebles raised the same points for ineffective counsel that he raises in this appeal. The circuit court denied the petition, but we conclude that one of the grounds has merit. As a consequence, we reverse the order of the circuit court and remand the matter for a new trial.

We recently stated the law relative to ineffective counsel and the prejudice required for the granting of a new trial:

To prevail on any claim of ineffective assistance of counsel, the petitioner must first show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). Second, the petitioner must show that the deficient performance prejudiced the defense as to deprive the petitioner of a fair trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.
Further, when reviewing ineffective-counsel claims, a court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable assistance. Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

Hall v. State, 326 Ark. 318, 321, 933 S.W.2d 363, 365 (1996), reh’g denied, 326 Ark. 823, 933 S.W.2d 363 (1996) (per curiam). See also Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). This court does not reverse a trial court’s denial of postconviction relief unless the ruling was clearly erroneous. Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997); Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994).

It is in connection with defense counsel’s failure to present the jury with M.C.’s inconsistent statements that we conclude his performance was deficient. During the pretrial hearing to determine whether the statements of M.C. could be related to the jury by his mother under Ark. R. Evid. 803(25) (the child-hearsay exception), M.C. was asked numerous questions by the deputy prosecutor and the court. The following colloquy occurred:

THE COURT: Did Abram do something to you several months ago, sometime back?
M.C.: (moves head)
THE COURT: He didn’t? Did you tell your mother he did? Speak up. Is that yes or no?
M.C.: No.
THE COURT: He didn’t do anything to you and you didn’t tell your mother?
M.C.: No.
THE COURT: No?
M.C.: No.
THE COURT: Okay. Did that man over there ever do anything to you?
M.C.: No.
THE COURT: He didn’t? Okay. Anything else?

The young boy, thus, told the trial court five consecutive times that Peebles had not done anything to him several months earlier. This inconsistent colloquy should have been made available to the jury.

Rule 806 of the Arkansas Rules of Evidence provides:

If a hearsay statement, or a statement defined in Rule 801[d](2)(iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.

Ark. R. Evid. 806.

We note initially that Ark. R. Evid. 806 and Fed. R. Evid. 806 are substantially similar. One commentator on Federal Rule 806 has explained the rule as follows:

If a hearsay statement is introduced into evidence because it qualifies as an exception to the hearsay rule, it is being introduced for its truth. This makes the credibility of the hearsay declarant important. Thus, Rule 806 provides that the credibility of the hearsay declarant can be attacked and supported just as if the declarant is on the stand testifying. In other words, the ways in which a witness can be impeached and rehabilitated are also the ways in which a hearsay declarant can be impeached and rehabilitated.

3 Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual 1674 (6th ed. 1994).

An example of the application of Rule 806 is found in State v. Kline, 464 N.E.2d 159 (Ohio App. 1983). In Kline, the defendant was convicted of felonious assault and of carrying a concealed weapon. At trial, one Kelly Taylor testified that she witnessed the defendant draw a pistol and point it at her boyfriend, Doug Emmons. She testified that Emmons took the gun immediately and stated: “She tried to kill me -— call the cops.” State v. Kline, 464 N.E.2d at 162. Counsel for the defendant next tried to impeach the credibility of Emmons, who was unavailable although under subpoena at the time. Counsel sought to introduce into evidence a written statement given by Emmons to members of the Norwalk Police Department, which provided: “Gloria Cline [sir] [the defendant] pulled a gun on me, I took it away, and the cops came. I lost my hat.” Id. at 163. The trial court excluded the writing on the ground that it was hearsay.

On appeal, the Court of Appeals of Ohio reversed and, in doing so, stated:

[T]hese statements were clearly not hearsay. The writing was offered not as substantive evidence, but rather to impeach the credibility and veracity of a hearsay declarant (Emmons). Consequently, the writing was not offered to prove the truth of the statements contained therein. Evid. R. 801(C). Extrajudicial statements offered for impeachment purposes are not hearsay since they are not offered for the truth of what they state.

Id. (citations omitted). See also United States v. Wuagneux, 683 F.2d 1343 (11th Cir. 1982), cert. denied, 464 U.S. 814 (1983) (allowing an IRS agent to testify during the government’s rebuttal as to a prior inconsistent statement made by the appellant’s accountant, who was unavailable to testify, after the appellant introduced a contrary statement through Fed. R. Evid. 804(b)(3) as a statement against interest). See generally Lewis v. Gubanski, 50 Ark. App. 255, 905 S.W.2d 847 (1995) (discussing Ark. R. Evid. 806 in detail).

The Supreme Court of Oregon has addressed the issue of impeaching the testimony of a four-year-old child declarant who was unavailable to testify “due to fear or similar reasons.” See State v. Phillips, 840 P.2d 666 (Or. 1992). There, statements of the child declarant were admitted into evidence under hearsay exceptions through other witnesses. Those witnesses related the child’s declarations about the defendant, who was the child’s stepfather, and his sexual abuse of the child. The defense sought to impeach the statements of the child declarant by having the mother testify that the child told her that the natural father of the child had told the child to say “bad things” about the defendant. The trial court granted the state’s objection and struck the impeachment testimony.

The Oregon Supreme Court reversed, citing Rule 806, and noted that the commentary to this rule made it clear that in fairness the declarant’s credibility ought to be subject to impeachment. The court went on to say that the excluded impeachment evidence was not offered for the truth of the matter asserted and, thus, was not hearsay but was admissible to cast doubt on the credibility of the unavailable child declarant. See also State v. Evans, 187 Wis. 2d 66, 522 N.W.2d 554 (1994) (child hearsay declarant’s credibility was open to attack just as if the child had testified; trial court affirmed on other grounds); John E.B. Myers, Child Witness Law and Practice § 4.65, at 257 (1987).

In the instant case, defense counsel made no attempt to offer M.C.’s inconsistent statements into evidence though this information would have been invaluable to the jury. The State’s response to this is that offering into evidence the transcript of the pretrial hearing to impeach M.C. would be impermissible because M.C.’s testimony was not given under oath and subject to the penalty of pegury. That is incorrect. It is clear that the transcript of M.C.’s contrary statements at the pretrial hearing would not be offered as substantive evidence but merely for impeachment purposes. Thus, testimony under oath is not required, and we agree with the holdings of the Court of Appeals in this regard. Lewis v. State, 41 Ark. App. 89, 848 S.W.2d 955 (1993); Harris v. State, 36 Ark. App. 120, 819 S.W.2d 30 (1991). For purposes of the instant case, we conclude that the fact that M.C.’s answers at the pretrial hearing were not under oath does not foreclose their use under Rule 806 for credibility purposes.

The State also cites Owens v. State, 318 Ark. 61, 883 S.W.2d 471 (1994), which stands for the proposition that a witness may only relate information acquired through his or her own observation. Thus, if the mother was not present at the pretrial hearing when M.C. answered the trial court’s questions, according to the State, she cannot testify about what the boy said at that time. We disagree. The State’s argument ignores Rule 806, which allows for the admission of relevant inconsistent statements of the declarant. This impeachment can take place irrespective of whether the mother was present when the inconsistent statements were made. In the instant case, the mother was merely the mouthpiece or conduit for M.C.’s statements, and it is the declarant’s statements that are being impeached, not the mother’s. See Lewis v. Gubanski, supra.

Nor do we perceive the procedure for introducing M.C.’s previous answers at the pretrial hearing as a stumbling block for their use by defense counsel. As in State v. Kline, supra, counsel need only have introduced a transcript of the relevant portion of the pretrial colloquy between M.C. and the trial court. This could have been done as part of the cross-examination of Virginia Ghere. It would have been a simple matter to have read the colloquy from the pretrial hearing to the jury.

Because the jury was not informed that the three-year-old boy, who was the critical witness against Peebles, had recanted his story at a pretrial hearing, we conclude that Peebles did not receive a fair trial. While a plausible explanation is that M.C. “froze” at the hearing when surrounded by adults or changed his story out of fear when faced with Peebles, this was still crucial information that should have been imparted to the jury.

We hold that the Strickland test was met and that defense counsel’s performance was not only deficient but that there is a reasonable probability that the absent information, had it been known to the jury, would have affected the outcome of the trial.

Reversed and remanded.

       Ark. R. Crim. P. 36.4 was the rule in effect in 1990, which set forth the procedure for post-conviction relief for ineffective assistance of counsel. It was replaced effective January 1, 1991, by Ark. R. Crim. P. 37.