text:
    Marilyn FLORENCE, Age 9; Vernice Price, Age 8; and Robert Matthews, Age 6, By Their Mother Elsie Matthews and Elsie Matthews, Individually v. Captoria TAYLOR
    95-1170
    928 S.W.2d 333
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Heather Patrice Hogrobrooks, for appellant.
   PER CURIAM.

On September 23, 1996, Heather Patrice Hogrobrooks appeared before this court pursuant to an order to show cause why she should not be held in contempt for failing to appear at oral argument in this matter on September 3, 1996. Ms. Hogrobrooks arrived several minutes late at the show-cause hearing and pled guilty to contempt of court. In mitigation of her contempt, she offered her misconceived notion that her failure to attend oral argument, which she had requested as appellants’ counsel, would simply result in an affirmance of the trial court’s decision. She further admitted that she had not notified this court that she was not coming to oral argument. She stated that she now understands this was wrong.

When asked by this court about the disservice that a failure to appear would do to her clients, she responded that she generally cared for her clients, but she offered no reason for why she abandoned the appellants’ interests in this appeal. As it happened, this court heard and decided the appeal in Florence v. Taylor, No. 95-1170, despite Ms. Hogrobrooks’s absence at oral argument. See Florence v. Taylor, 325 Ark. 445, 928 S.W.2d 330 (1996). Ironically, that appeal also concerned Ms. Hogrobrooks’s failure to attend trial on two occasions and the dismissal of her case by the trial court. We affirmed that dismissal.

We view Ms. Hogrobrooks’s failure to appear at oral argument in this court, coupled with her rationale that she anticipated that this court would simply affirm the trial court’s decision due to her absence, as matters of the utmost seriousness. We order Ms. Hogrobrooks to pay $500 forthwith for her contempt of court.

Moreover, in light of her pattern in failing to attend judicial proceedings both at the trial-court level and this level, we are sending this matter to the Committee on Professional Conduct for review and for any additional action that may be appropriate. We direct the Committee’s attention to our decision in Florence v. Taylor, 325 Ark. 445, 928 S.W.2d 330 (1996), and to the transcript of the show-cause hearing before this court, which will be furnished both to the Committee and to Ms. Hogrobrooks.


source: Caselaw Access Project

author: Per Curiam. Tom GLAZE, Justice,

license: Public Domain

text:
    Jack Gordon GREENE v. STATE of Arkansas
    CR 96-362
    929 S.W.2d 157
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      William Pearson, for petitioner.
   Per Curiam.

The petitioner, Jack Gordon Greene, has filed two pro se motions with the Court, and his attorney, William Pearson, has filed a third motion seeking direction on how to proceed in view of Mr. Greene’s motions. Mr. Greene’s first motion is to withdraw his appeal from his death sentence. His second motion is styled, “Motion Supplement of Record.” We deny Mr. Greene’s motions. Mr. Pearson’s question will be answered in the course of the opinion that follows.

The three motions have arisen from criminal proceedings in Johnson County Circuit Court. On July 26, 1991, Mr. Greene was arrested in Norman, Oklahoma, for his role in the July 23, 1991 slaying of Sidney Burnett in Arkansas. Mr. Greene was returned to Arkansas to stand trial for capital murder in Johnson County.

Apparently, after his return to Arkansas, but before the Johnson County trial commenced, Mr. Greene was transported to North Carolina to stand trial in an unrelated capital murder case. The appellate decision which arose from the North Carolina trial suggests Mr. Greene was convicted of first-degree murder during 1992. The North Carolina Supreme Court reversed the conviction and ordered a new trial on January 28, 1994. State v. Greene, 438 S.E.2d 743 (N.C. 1994).

After his conviction in North Carolina, Mr. Greene was extradited to Arkansas pursuant an executive agreement signed by the governors of Arkansas and North Carolina on April 21, 1992. It appears extradition had been requested as early as August 22, 1991. In any event, Mr. Greene stood trial in Johnson County and was convicted of capital murder and sentenced to death.

Mr. Greene appealed to this Court, which, on June 20, 1994, affirmed the conviction but held the exclusion of evidence of mitigating circumstances was reversible error. Another ground stated for vacating the death sentence was that Mr. Greene’s North Carolina murder conviction, which the State had introduced as a “prior violent felony,” was subsequently reversed in State v. Greene, supra. We remanded the case to the Johnson County Circuit Court for resentencing. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).

Mr. Greene remained on death row in Arkansas from the time of this Court’s decision to his resentencing. On February 27, 1996, a jury again imposed the death sentence. Execution date was set for April 9, 1996. Greene’s court-appointed counsel, Mr. Pearson, filed a notice of appeal on March 11, 1996, and he filed a motion for stay of execution and a partial record on March 22. We granted the motion for stay on April 1. The entire record in the case has now been lodged in this Court.

Mr. Greene’s first motion, filed on June 28, 1996, seeks to withdraw his appeal from the death sentence imposed on February 27, 1996, and waive any further appeal. In it he states he is being held in Arkansas in violation of the extradition agreement, and he claims he has remained on death row in violation of his right to due process.

Mr. Greene’s second motion seems to modify the request for waiver of appeal presented in the first motion. This time, Mr. Greene asks us to reverse the death sentence and order his extradition to North Carolina. He claims this course of action is required because (1) the State, during resentencing, again introduced the North Carolina conviction as a “prior violent felony”; and (2) the State has violated his rights, and the extradition agreement, by refusing to return him to North Carolina after his death sentence was vacated. In the event the Court denies this first request, Greene seeks to waive his appeal and asks the Court to order his immediate execution.

We note that the style of Mr. Greene’s second motion suggests it concerns supplementation of the record. Prior to the submission of the motion, Mr. Greene tendered some 100 pages of materials to this Court. The motion which followed does not, however, mention those materials or give any reason for their inclusion in the record.

Mr. Pearson, who is Mr. Greene’s court-appointed counsel, filed a motion on August 13, 1996, asking for direction on how to proceed in view of Mr. Greene’s requests. Mr. Pearson suggests we should remand this case so that the Trial Court can determine, in a competency hearing, whether Mr. Greene has knowingly and voluntarily waived his right to appeal. Mr. Pearson also states that Mr. Greene has moved the Trial Court to relieve him as counsel but that he will continue to represent Mr. Greene until the court directs otherwise. Finally, he repeats Mr. Greene’s arguments in support of reversing the death sentence. He asks the Court to “consider” and “address” the arguments that the North Carolina conviction was improperly raised in the resentencing hearing and that Greene is being held in violation of the extradition agreement.

In previous cases we have recognized that an appeal, even when a death sentence is involved, may be withdrawn if done by a competent appellant. Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988); Remeta v. State, 294 Ark. 206, 740 S.W.2d 928 (1987). In those instances we prescribed the procedure to be followed to assure that the appellant was sufficiently competent to take such a serious step.

In this case, we decline to grant the motion to withdraw the appeal because, unlike the requests in the Franz and Remeta cases, it is not an unequivocal request. While we recognize the difficulties Mr. Pearson may face in representing Mr. Greene in the circumstances presented, we consider Mr. Pearson’s statement that he will continue to represent Mr. Greene until relieved by a court to be entirely proper.

Motion to withdraw appeal denied.

Glaze, J., concurs.

Tom GLAZE, Justice,

concurring. I concur only for the purpose of pointing out that the State is not in violation of the “Executive Agreement” signed by Arkansas and North Carolina. The prosecution of Mr. Greene has never ended in Arkansas, and in fact, he was retried, convicted, and sentenced to death. Mr. Greene has appealed that conviction and death penalty to this court. Arkansas is only obliged to return Mr. Greene to North Carolina if the prosecution in this State is terminated in any manner other than by the imposition of a judgment and death sentence.


author: BRADLEY D. Jesson, Chief Justice. ANDREE LAYTON Roaf, Justice,

text:
    Richard BURRADELL v. STATE of Arkansas
    CR 96-602
    931 S.W.2d 100
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   BRADLEY D. Jesson, Chief Justice.

The issue in this case is whether we will prevent a trial judge from exercising his or her contempt authority when a defendant appears in court under the influence of alcohol. The appellant, Richard Burradell, appeared in Rogers Municipal Court for a plea hearing. He had been drinking to such an extent that he smelled of alcohol and registered .13 on a portable breathalyzer test. Municipal Judge R. Douglas Schrantz cited Burradell for contempt and sentenced him to two days in jail. Burradell appealed to Benton County Circuit Court and, after a de novo bench trial, was again adjudged guilty of contempt. We affirm, and hold that it was within the inherent authority of the municipal judge to punish Burradell for contempt.

The facts, in greater detail, are as follows. On March 3, 1995, Burradell appeared in Rogers Municipal Court for a pretrial hearing. He had been charged with DWI 1. The purpose of his appearance was to enter a guilty plea, pursuant to an agreement with the prosecutor. Before entering the courtroom, Burradell was “screened” by a representative of the Ozark Guidance Center. The representative noticed that Burradell smelled of alcohol. A police officer was summoned to administer a portable breathalyzer test and Burradell registered a .13 blood alcohol level. Burradefl’s attorney learned what had transpired and he informed Judge Schrantz. The judge summarily found Burradell in contempt and sentenced him to two days in jail.

The contempt finding was appealed to circuit court. Burradell contended that, in the absence of any disruptive behavior on his part, he could not be held in contempt for simply appearing in court under the influence of alcohol. The State conceded that, other than smelling of alcohol and registering a .13 on the breath test, Burradell displayed no outward signs of intoxication. After a hearing, the circuit judge found that Burradell’s condition displayed a lack of regard for the court, eroded the solemnity of the proceedings, potentially impaired the proceedings, and demonstrated disrespect. Burradell was found guilty of contempt and sentenced to twelve hours time served. This appeal followed.

First, we address Burradell’s argument that the municipal court had no power under Ark. Code Ann. § 16-10-108(a) (Repl. 1994) to hold him in contempt. That statute reads as follows:

Every court of record shall have the power to punish, as for criminal contempt, persons guilty of the following acts, and no others:
(1) Disorderly, contemptuous, or insolent behavior committed during the court’s sitting, in its immediate view and presence, and direcdy tending to interrupt its proceedings or to impair the respect due to its authority;
(2) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings;
(3) Willful disobedience of any process or order lawfully issued or made by it;
(4) Resistance, willfully offered, by any person to the lawful order or process of the court; and
(5) The contumacious and unlawful refusal of any person to be sworn as a witness and, when so sworn, a similar refusal to answer any legal and proper interrogatory.

Burradell claims that the Rogers Municipal Court is not a “court of record” as required by the statute. That argument is presented for the first time on appeal, so we will not consider it. See Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). He also contends that his behavior did not fall within any of the five categories listed in § 16-10-108(a). It is not necessary for us to address that contention. A court has inherent power to punish contemptuous behavior committed in its presence, without regard to the restrictions imposed by § 16-10-108(a). Summary punishment for contempt committed in the presence of the court is an inherent power reserved to the judiciary, and cannot be abridged by legislation. See Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).

The power to punish for contempt is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings. James v. James, 237 Ark. 764, 375 S.W.2d 793 (1964). It is inevitable that, if a defendant is allowed to appear at a court proceeding in a state of intoxication, the authority and dignity of the court will suffer. Such behavior is, standing alone, a mark of disrespect to the court and the legal process.

An act is contemptuous if it interferes with the order of the court’s business or proceedings or reflects upon the court’s integrity. Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995). The power of contempt is available to uphold public confidence in the majesty of the law, Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993), and to preserve the power and dignity of the court. Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984). These interests are offended by a defendant who shows up for a plea hearing under the influence of alcohol. Public confidence in the majesty of the law would be sorely tried were a court to turn a blind eye to a defendant who appeared in court smelling of alcohol and intoxicated to the extent we have in this case. Further, the validity of the proceedings themselves could be called into question by the participation of an intoxicated defendant. Finally, we have recognized that one of the values of a court’s exercise of its criminal contempt power is its deterrent effect on others. Ward v. Ward, 273 Ark. 198, 617 S.W.2d 364 (1981). A contempt citation such as the one issued against Burradell lets others know that such behavior will not be tolerated by the court.

The appellant claims that he intended no disrespect by his actions. His argument is stated best on page twenty-three of his brief:

The worst that the defendant did in the instant case is take a few snorts of booze to calm his nerves before court. This was bad judgment to say the least, especially in light of the underlying offense of DWI, but it certainly did not amount to a defendant showing contempt or disrespect to the judge or the court.

The appellant cites three Arkansas cases in support of his argument. Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991); Kennedy v. State, 255 Ark. 163, 499 S.W.2d 842 (1973); Meekins v. State, 34 Ark. App. 67, 806 S.W.2d 9 (1991). However, those cases are not applicable because they involve the effect of intoxication on a defendant’s competence or the voluntariness of his actions. Likewise, the cases cited by the appellant from other jurisdictions are distinguishable, although they involve similar fact situations. In Cameron v. State, 102 Md. App. 600, 650 A.2d 1376 (1994), it could not be conclusively determined that the appellant had been under the influence of alcohol while in the court’s presence. In Commonwealth v. DiGiacinto, 324 Pa. Super. 200, 471 A.2d 533 (1984), Pennsylvania law required “misbehavior...obstructing the administration of justice” before a contempt citation could be issued. In Bethard v. District of Columbia, 650 A.2d 651 (D.C. 1994), a charge of contempt could only be supported by a finding of a willful attempt to show disrespect.

We have empowered our judges with greater authority to preserve and protect the dignity of their courtrooms. This is evidenced by the fact that we have affirmed contempt citations even where the appellants argued that they did not intend by their actions to show contempt or disrespect. In Ward v. Ward, supra, the appellant was jailed for contempt for refusing to pay child support as ordered. We recognized that his refusal to pay was based on a misunderstanding of the law rather than a contemptuous attitude. Nevertheless, we upheld the contempt citation, although we took the appellant’s lack of contemptuous intent into consideration and modified his sentence. In Garner v. Amsler, 238 Ark. 34, 377 S.W.2d 872 (1964), two attorneys represented to the trial court that the jury was “stacked” against them. When the claim turned out to be groundless, the attorneys were held in contempt of court. We recognized that a sentence for contempt is not intended primarily as a means for punishing carelessness or bad judgment, but we did not absolve the appellants of contempt. Instead, we reduced the sentences imposed on them. The Ward case and the Amsler case embody the principle that criminal contempt is punished to protect the dignity, integrity, and authority of the courts, regardless of the actor’s subjective intent.

Affirmed.

Dudley, Newbern, and Roaf, JJ., dissent.

ANDREE LAYTON Roaf, Justice,

dissenting. I agree with the proposition that a trial court has inherent power to punish contemptuous behavior committed in its presence. However, although this power is broad, it is not without limit. See, e.g., Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393 (1971). Moreover, we have admonished that “[t]he contempt power should never be exercised except where the necessity is plain and unavoidable if the authority of the court is to continue.” Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984).

In this case, the facts are not in dispute. Burradell was punished only because the smell of alcohol on his breath led to the administration of a portable breath test and a reading of a .13 blood-alcohol content. The abstract reflects that he was summarily found in contempt without any further discussion when the municipal judge was advised about the portable breath-test results. It is also undisputed that Burradell displayed no outward signs of intoxication.

Burradell has appealed from his circuit court conviction for contempt after a de novo review in which the conditions that led to the original contempt conviction fortunately were not duplicated. The circuit court found that Burradell was “under the influence” rather than intoxicated. However, he expressed concern about the proceedings in municipal court:

The Court: Now, the one element here that I think that’s different, there’s one element not involved here that’s —and I’m not trying to second guess the [municipal] judge at all. The one element, at least I think, that would — I’ve always required, at least in my own observation of this — and believe me, I’ve locked up more than one for showing up in court drunk, and will continue to — or under the influence. To me to come in here — I mean, it’s one thing to have a drink. It’s another thing to have two drinks. But to come in here and blow a thirteen, that’s not just a drink or two for dinner. But there is one element that’s lacking here that I usually have, at least in a personal sense have always required, and that is that the Court make some personal observation that would indicate the person’s under the influence, and I don’t have that with what you all have presented so far.
Prosecutor: It’s because there was none, your Honor. It would be the State’s stipulation that other than the blood alcohol and the smell of intoxicants that he displayed no outward signs of being intoxicated.
The Court: Well, as bad as I hate to do it, I think I’ll take this under advisement for about two weeks.

(Emphasis added.)

The circuit court also reduced Burradell’s sentence from two days to the time he had already served, twelve hours, upon the recommendation of the prosecution. Burradell further had the opportunity to address the court at his de novo hearing, a consideration he did not receive in municipal court. He apologized for his conduct, explained to the court that there was no disrespect intended, that he was nervous and afraid of appearing in court, and that he “made the wrong judgment on a sedative.” There is an element of truth in this comment, because had he taken Valium or some other medication, or perhaps even used a good mouthwash, he would have been judged as he should have, solely on his conduct “in the presence of the court.”

Indeed, this court has previously commented on the importance of the attitude of a person facing a charge of criminal contempt:

Perhaps there is no case in which the [trial] court’s observation of the parties, and their demeanor and conduct, including their manner of speaking and tone of voice, their facial expressions and body movements, can be more important than on a charge of contempt, particularly criminal contempt, of which attitudes of the alleged contemnor can be such an integral part.

Rowell v. State, 278 Ark. 217, 644 S.W.2d 596 (1983). (Emphasis added.)

Finally, a trial court may punish for contempt committed in its presence without comporting with the due process standards attendant in other criminal contempt proceedings. See, e.g Fitzhugh v. State, 296 Ark. 137, 664 S.W.2d 596 (1988). This is all the more reason that the municipal judge should have ensured that the necessity of exercising this considerable power was “plain and unavoidable if the authority of the court is to continue.” Edwards v. Johnson, supra.

I would reverse.

Dudley and Newbern, JJ., join in this dissent.

       Apparently this screening is customary in Rogers Municipal Court when DWI defendants are to appear before the judge. The record does not reveal what form this screening takes. It seems the defendants are, at least, closely observed.


author: BRADLEY D. Jesson, Chief Justice.

text:
    STATE of Arkansas v. John L. JOHNSON, Jr.
    CR 95-1119
    931 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellant.

      Appellee, pro se.
   BRADLEY D. Jesson, Chief Justice.

The appellee, John L. Johnson Jr., was charged by misdemeanor information in circuit court with driving while intoxicated, first offense, operating a motor vehicle without a driver’s license, making an illegal turn, disorderly conduct, and no proof of liability insurance. At trial, the State elected to proceed only on the DWI charge. The case never reached the jury because, at the close of the State’s case, the trial court directed a verdict in appellee’s favor. The State has filed this appeal, asserting that the trial court erred in granting the directed verdict and in disallowing its proof of appellee’s intoxication by ingestion of a controlled substance.

We must first decide whether this appeal is properly before us. The State claims that the correction of the trial court’s error in this case is essential to the administration of the criminal law. See Ark. R. App. P. — Crim. 3(c). Because we conclude that the trial court erroneously weighed the credibility of the State’s evidence instead of determining the sufficiency of the evidence and refused to consider intoxication under Ark. Code Ann. § 5-65-103(a) (Repl. 1993), we hold that the State is permitted to appeal this case. See State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992); State v. Taylor, 180 Ark. 588, 22 S.W.2d 34 (1929).

The State’s case against appellee included the following evidence. At approximately midnight on August 25, 1994, appellee was stopped by Russellville Police Patrolman William Ridenhour for failing to activate his turn signal when making a right turn. Ridenhour approached appellee’s vehicle and observed that he was eating a taco from Taco Bell. When appellee finished the taco and began talking, Ridenhour noticed that his speech was slurred. The officer told appellee that he thought he had been drinking, to which appellee replied that he had been on the lake and had “had a few.” Ridenhour further observed that appellee’s eyes were extremely red and glossy. Officer Stewart Condley, who was riding with Ridenhour, also noticed appellee’s slurred speech and glassy red eyes.

Ridenhour asked appellee to exit the vehicle for purposes of conducting field sobriety tests. Appellee, a local attorney, explained that he was taking his passenger and legal secretary, Terri Nail, to her apartment. As appellee became argumentative, Ridenhour smelled an odor of an intoxicant on his person. He began conducting the horizontal gaze and nystagmus test, but appellee refused to cooperate. The officer placed appellee under arrest and transported him to a local hospital, where he submitted to a blood test. While the result of the test indicated the presence of .06 percent of alcohol in appellee’s blood, both officers testified that there was “no doubt” in their minds that appellee was intoxicated.

In granting appellee’s motion for directed verdict at the close of the State’s case, the trial court commented that appellee’s .06 percent blood-alcohol content was “terribly low” and observed that there were no field sobriety tests given at the time of the stop. While the trial court made mention of the “subjective” observations of the officers, it concluded that the low blood-alcohol level and the absence of “objective” tests mandated granting a directed verdict in appellee’s favor.

We have reviewed the distinction between the credibility and sufficiency of the evidence as follows:

[A] conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. A reversal based on the weight of the evidence, on the other hand, draws the appellate court into questions of credibility. The “weight of the evidence” refers to “a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.”

State v. Long, 311 Ark. at 250-251, 844 S.W.2d at 304; citing Tibbs v. Florida, 457 U.S. 31, 37-38 (1982) (quoting Tibbs v. State, 397 So.2d 1120 (1981)). Stated another way, a directed verdict is given in cases only where no issue of fact exists. Smith v. State, 302 Ark. 459, 790 S.W.2d 432 (1990).

Officers Ridenhour and Condley both testified there was no doubt in their minds that appellee was intoxicated. Opinion testimony regarding intoxication is admissible. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). The officers further observed appellee’s slurred speech and red and glassy eyes. Particularly, Officer Ridenhour smelled an odor of an intoxicant on appellee, who admitted to him that he had “had a few.” These observations constitute competent evidence supporting the DWI charge. Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992). While the trial court emphasized that the officers’ observations were “subjective” evidence, it was the province of the jury to determine the weight and credibility of this evidence. State v. Long, supra; Jones v. State, 305 Ark. 95, 805 S.W.2d 642 (1991).

The trial court was also concerned with the fact that appellee’s blood-alcohol content was .06 percent. However, we have said that a DWI conviction is not dependent upon evidence of blood-alcohol content in view of sufficient other evidence of intoxication. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996). This is so because our legislature has provided that there are two different ways of proving a DWI violation. See Ark. Code Ann. § 5-65-103 (a) and (b). A person can be found guilty of the offense if he or she (1) operates a motor vehicle while intoxicated; or (2) operates a motor vehicle while having a blood-alcohol content of .10 percent or more. Tauber v. State, supra. Moreover, Ark. Code Ann. § 5-65-206(a)(2) (Repl. 1993) provides that if there was at the time in excess of one-twentieth of one percent (.05%) but less than one-tenth of one-percent (.10%) by weight of alcohol in the defendant’s blood, this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. In describing appellee’s .06 percent blood-alcohol content as “terribly low,” the trial court again invaded the jury’s province, as the jury should have been permitted to consider this evidence. In light of this competent evidence and the testimony of the officers, we cannot agree that there was no issue of fact for the jury to decide. Under these circumstances, we hold that the trial court erred in directing a verdict in appellee’s favor.

The State’s remaining assignment of error pertains to the trial court’s pretrial ruling that the State would not be allowed to offer evidence that appellee’s intoxication occurred as a result of his ingesting a controlled substance. Citing A.R.E. 103 (a)(2), the appellee maintains that this issue is not preserved because the State failed to proffer the evidence it claims was erroneously excluded. However, we have held that A.R.E. 103(a)(2) does not apply to hearings limited to the construction of statutes as a matter of law. State v. Gray, 322 Ark. 301, 908 S.W.2d 642 (1995). Because the trial court ruled as a matter of law that evidence of a controlled substance could not be admitted to prove DWI unless the information specifically alleged intoxication by a controlled substance, we conclude that no proffer was required.

In this case, the information charged appellee with DWI by specifying the statute number, Ark. Code Ann. § 5-65-103, and stating as follows:

The defendant on or about the 25TH day of August 1994 in the City of Russellville, Arkansas, did
I.
knowingly, willingly and unlawfully, operate a motor vehicle while intoxicated and/or operate a motor vehicle when there was 0.10% or more by weight of alcohol in his blood as determined by a chemical test on his blood, urine, breath or other bodily substance in the second offense, the same constituting a misdemeanor offense, against the peace and dignity of the State of Arkansas.

An information is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). Though the information in appellee’s case did not specify whether he was charged under subsection (a) or (b) of § 5-65-103, we have held that a charge of “DWI one” is sufficient for a conviction under either subsection, even though the evidentiary requirements of the subsections are different. Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985). The term “intoxicated” as used in the DWI offense includes being “influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof.” See Ark. Code Ann. § 5-65-102 (l)(Repl. 1994). See also Thornton v. State, 317 Ark. 626, 883 S.W.2d 453 (1994) (“A person of ordinary intelligence knows that the use of a substance tending to put him or her in the condition described in § 5-65-102(1) constitutes use of an ‘intoxicant’ and that being in control of a motor vehicle shortly thereafter may violate the law.”). Moreover, appellee did not request a bill of particulars. Because we conclude that the allegations in the information were sufficient to apprise appellee of the crime with which he was charged, we hold that the trial court erred in ruling as a matter of law that the State could not produce evidence of intoxication by ingestion of a controlled substance unless the information specifically alleged this method of intoxication.

The State asks that we declare error of the trial court, thus acknowledging that, due to the trial court’s directing a verdict in appellee’s favor, his double-jeopardy rights prevent a retrial. See State v. Long, supra.

Error declared.

NEWBERN, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Thomas James LOVELADY v. STATE of Arkansas
    CR 96-259
    931 S.W.2d 430
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      Ed Webb, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The State charged that Thomas James Lovelady committed the crime of rape against his seven-year-old stepdaughter. The victim testified that Lovelady digitally penetrated her vagina and made her perform oral sex. Her testimony was corroborated. Lovelady testified that the prosecutrix had oral sex on him while he was asleep and that he stopped her as soon as he woke up. A jury found Lovelady guilty, and the trial court entered the judgment of conviction. We affirm that judgment.

Lovelady contends the evidence was not sufficient to sustain the conviction; however, he did not preserve the issue for appellate review. In his motion at the end of the State’s case-in-chief, his attorney said, “[T]he defense would move that the charges against the defendant be dismissed on the basis that the State has failed to meet its burden of proof.” Rule 36.21 of the Arkansas Rules of Criminal Procedure sets out the requirements for motions for directed verdict. In Houston v. State, 319 Ark. 498, 892 S.W.2d 274 (1995), we explained that to preserve a sufficiency argument for appeal, a party must “specifically state the element of the crime . . . which was the basis for his sufficiency motion.” Id. at 500, 892 S.W.2d at 274. We have made it clear that the proof of the element of the crime that is alleged to be missing must be specifically identified in a motion for a directed verdict. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). “The reason underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.” Id. at 109, 883 S.W.2d 831 at 832 (quoting Brown v. State, 316 Ark. 724, 726, 875 S.W.2d 828, 830 (1994)). Here, Lovelady did not specify the proof alleged to be insufficient; consequently, the issue was not preserved for appellate review.

Lovelady next contends that the trial court erred in refusing to exclude the testimony of a witness. The point came about as follows. Lovelady was timely given a list of the State’s witnesses. Then, two days before the trial was scheduled to start, the State added the name of Kathy Burns. Lovelady filed an objection to the State calling her. At a hearing on the objection, the prosecutor told the trial court that he had just been told about the witness and that she would not testify about any new facts. The prosecutor stated that the witness would testify she was the victim’s second-grade teacher, that the victim told her about the crimes, and that she was the one who informed the Department of Human Services. The prosecutor stated that the testimony would be offered for the purpose of showing how the Department of Human Services became involved in the case. Lovelady’s attorney argued that he would not have time to interview Ms. Burns. The trial court ruled that a two-day period remained for interviewing her and that two days was sufficient since the witness’s testimony did not present any new evidence and was mostly cumulative to the testimony of other witnesses.

Under Rule 17.1(a) of the Arkansas Rules of Criminal Procedure, the prosecution is required to disclose to defense counsel the names and addresses of persons whom it intends to call as witnesses, as soon as it comes within its “possession, control, and knowledge.” Ark. R. Crim. P. 17.1(a)(i). Sanctions for noncompliance with Rule 17.1 are provided by Ark. R. Crim. P. 19.7 and include excluding the evidence, ordering discovery, granting a continuance, or entering any other appropriate order under the circumstances. Here, the name of the witness came to the State’s attention two days before trial, and it was immediately disclosed. Before making its ruling, the trial court weighed the point of the witness’s testimony, whether it would seriously affect the accused’s preparation for trial, and the time remaining before trial. The remedy for noncompliance, if any, was within the discretion of the trial court. Ark. R. Crim. P. 19.7. Under the facts of this case, we cannot say the trial court abused its discretion in refusing to exclude the testimony.

Lovelady’s next point for reversal is procedurally barred. It arose as follows. Lisa Lovelady, appellant’s wife at the time of trial, was called to the stand by the prosecutor and asked if she had a conversation with her daughter. Lovelady objected on the ground of spousal privilege, and the trial court sustained the objection. Lovelady argues that the trial court erred because it should have granted a mistrial on its own motion. Initially, we note that Love-lady received all the relief he requested. His objection was sustained. Ordinarily one cannot appeal from a1 ruling in his favor. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). Even so, Lovelady argues that the inference arising from the prosecutor’s calling Lovelady’s wife to the stand was so prejudicial that the trial court had a duty to order a mistrial on its own motion.

We have held that a motion for a mistrial should be granted when there is a “conscious and flagrant” attempt by the State to build its case out of inferences arising from the assertion of a privilege, Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), but we have never held that a trial court has a duty to declare a mistrial on its own motion when a prosecutor calls a witness in violation of a privilege and decline to so hold in this case. In Arkansas, we do not follow the “plain error” rule, under which plain errors affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Smith v. State, 268 Ark. 282, 595 S.W.2d 671 (1980). We did not adopt the plain-error rule by the adoption of A.R.E. Rule 103(d). Wicks v. State, 270 Ark.781, 606 S.W.2d 366 (1980). The exceptions to our practice of requiring an objection were listed in Wicks v. State, and this case does not come within one of the exceptions. The prosecutor’s calling Lovelady’s spouse to the stand as a witness did not have such a substantial impact that justice could not be served by continuing the trial. See Free v. State, 292 Ark. 65, 732 S.W.2d 452 (1987).

Lovelady’s final point for reversal involves a ruling excluding evidence. During cross-examination of the victim, defense counsel asked if Lovelady was the only person who had improperly touched her. She replied affirmatively. When asked if she remembered what her mother had done to her she said, “My mother never did anything to me.” The State objected, and the court directed counsel to rephrase the question. Counsel asked, “Do you remember just before going to the hospital your mother hitting you in the face?” The prosecutrix replied, “My mother never hit me in the face. I was jumping on the bed and hit my head on the headboard thing.” The State objected, and the trial court sustained the objection on the ground that it was a collateral matter and not probative of truthfulness. Lovelady proffered the testimony of Jennifer Baker from the Department of Human Services that she saw the prosecu-trix when she was bruised and did not think she hit her face on a headboard; she thought the child’s mother hit her. Lovelady’s attorney also proffered the court file showing that the child’s mother pleaded guilty to the offense.

Whether the victim’s mother struck the prosecutrix was plainly a collateral matter, in the accepted sense that Lovelady would not have been entitled to make such proof in his defense. See Barnes v. State, 287 Ark. 297, 698 S.W.2d 504 (1985). Since the matter was collateral, Lovelady was bound by the prosecutrix’s answer. Id. at 299, 698 S.W.2d at 506. Even so, Lovelady argues that he had a right to cross-examine on specific incidences of character that go to truthfulness. It is correct that a witness may be impeached by questions on cross-examination of specific incidences of conduct that refer to character for truthfulness, Ark. R. Evid. 608(b), but specific incidences of conduct may not be proved by extrinsic evidence. Ark. R. Evid. 613; Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Thus, the trial court correcdy ruled that the matter was collateral and not probative of truthfulness.

Affirmed.


author: DAVID Newbern, Justice. R.OAF, J.,

text:
    Derelle BROOKS v. STATE of Arkansas
    CR 96-296
    929 S.W.2d 160
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      Cross, Kearney & McKissic, by: Jesse L. Kearney, for appellant.

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

Derelle Brooks, a seventeen year old, was charged with rape in Jefferson Circuit Court on August 7, 1995. He moved to transfer the case to the juvenile division of chancery court. The motion was denied. The Trial Court’s statement on the matter emphasized the seriousness of, and violence involved in, the offense. We affirm the decision.

A “criminal charge sheet” found in the record states that Mr. Brooks placed his finger in the vagina of the two-year-old victim, causing her to bleed. Evidence presented by Mr. Brooks in support of the transfer motion showed that he and the infant victim were foster children in the same foster home.

Mr. Brooks was charged with statutory rape. Ark. Code Ann. § 5-14-103(a)(3) (Repl. 1993). It was alleged that Mr. Brooks committed the offense by engaging in sexual intercourse or deviate sexual activity with another person less than fourteen years of age.

Mr. Brooks’s motion contended he was seventeen and had no prior felony convictions or delinquency adjudications. He contends his motion to transfer should have been granted because he has not previously been adjudicated as a delinquent, and because there have been no past efforts to rehabilitate him.

Section 9-27-318 (Supp. 1995) provides in part:

(b) A circuit court and a juvenile court have concurrent jurisdiction and a prosecuting attorney may charge a juvenile in either court when a case involves a juvenile:
(1) At least sixteen (16) years old when he engages in conduct that, if committed by an adult, would be any felony;
* * *
(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

The Trial Court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). The serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993).

The information, in this case charging a class Y felony, is sufficient evidence of the serious and violent nature of the crime to support an order denying the motion to transfer. See Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996); Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996). No element of violence beyond that required to commit the crime is necessary. Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995); Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992).

It is undisputed that statutory rape is a serious offense. See Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996). Mr. Brooks contends, however, that the Trial Court erroneously considered that violence was allegedly employed in its commission. He argues that the statute does not require violence to commit rape, and further, that no evidence of violence was produced by the State. The State submits that rape is inherently violent and notes the allegation that the two-year-old victim suffered severe bleeding. Given the allegations in this case we cannot say the Trial Court erred in its conclusion that the offense charged involved violence. We need not consider whether statutory rape is an inherendy violent offense.

The second statutory factor involves prior adjudicated offenses. The only evidence of a prior adjudicated offense committed by Mr. Brooks consisted of a reference to probation in his “Social History” report. That document, generated by the Department of Human Services, contained the following statement: “However, the record does indicate that Derelle was placed on probation for the threat to kill his foster brother in West Memphis, Arkansas.”

The third factor involves a determination of the probability that the juvenile will be rehabilitated. The statute allows the Trial Court to consider the prior history, character traits, mental maturity, or any other factor which reflects upon the juvenile’s prospects for rehabilitation. The Trial Court noted evidence showing Mr. Brooks had been relocated in the foster home system some forty-seven times, largely because of his conduct. The Trial Court noted specific instances of prior conduct and failure, despite admission to counseling centers, to respond to rehabilition efforts. The incidents included fighting at school, attacking a counselor, attacking a foster parent with a knife, attempting to strangle a dog, molesting a three-year-old girl, and masturbating over an eighteen-month-old girl. Finally, the Trial Court pointed to the fact that Mr. Brooks was only four months away from his eighteenth birthday. Mr. Brooks turned eighteen on April 29, 1996.

A person who has reached his eighteenth birthday cannot be committed to a youth-services center. Ark. Code Ann. 9-27-331(a)(1) (Supp. 1995). Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992); Bright v. State, 307 Ark. 250, 252, 819 S.W.2d 7 (1991). The chance for rehabilitation within the Division of Youth Services is nonexistent when a commitment cannot be had for a young person older than 18. Hansen v. State, supra. See, e.g., Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996); Sims v. State, supra; Myers v. State, 317 Ark. 70, 876 S.W.2d 246 (1994); Hogan v. State, supra. Although Ark. Code Ann. § 9-28-208(d) (Supp. 1995) extended 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. Hansen v. State, supra.

The decision that a juvenile is to be tried in circuit court as an adult must be supported by clear and convincing evidence. Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995); Williams v. State, supra. We will not reverse the Trial Court’s decision unless we determine the decision was clearly erroneous. Ring v. State, supra; Vickers v. State, 307 Ark. 928, 819 S.W.2d 13 (1991). We can reach no such conclusion in this case.

Affirmed.

R.OAF, J.,

dissents. See dissenting opinion of Justice Roaf in Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996).


author: DAVID Newbern, Justice.

text:
    Donnie WHITNEY v. STATE of Arkansas
    CR 96-577
    930 S.W.2d 343
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      Honey & Honey, PA., for appellant.

      Winston Bryant, Att’y Gen., by: Brad Neuman, Asst. Att’y Gen., for appellee.
   DAVID Newbern, Justice.

Donnie Whitney, the appellant, was charged by information in Lafayette Circuit Court as an habitual offender with three counts of Delivery of a Controlled Substance (i.e., cocaine). Ark. Code Ann. § 5-64-401(a) (Supp. 1995). He was tried, and convicted, on Count I of the information and sentenced to a prison term of eighty years and a fine of $50,000. Ark. Code Ann. §§ 5-64-401 (a)(1)® (Supp. 1995) and 5-64-408(a)(Repl. 1993).

Mr. Whitney maintains his conviction should be reversed because (i) the prosecutor, during the closing argument at the penalty phase of trial, commented on Mr. Whitney’s failure to testify during the guilt-innocence phase; (ii) the prosecutor made other improper remarks during the closing argument at the guilt-innocence phase; (iii) the sentence is excessive; and (iv) the evidence was insufficient to support the conviction. We affirm the conviction and sentence on those points as none of them has been preserved for appeal. We also reject Mr. Whitney’s argument that the Trial Court improperly limited the testimony of mitigation witnesses presented by Mr. Whitney in the sentencing phase of the trial.

1. Sufficiency of the evidence

Testimony revealed that an undercover state police officer and an informant were approached by Mr. Whitney as they sat in a vehicle and that they purchased cocaine from Mr. Whitney for $1000. At the close of the State’s case, counsel moved for a directed verdict, stating only that the evidence was “not sufficient ... to sustain a conviction of a violation of a controlled substance, namely cocaine.” After the defense rested, the motion was renewed, using the same general terminology. A general directed-verdict motion stating only that the evidence is insufficient does not preserve a sufficiency-of-the-evidence issue for appeal. Ark. R. Crim. P. 33.1; Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

2. Prosecutor’s remarks

During the closing argument in the guilt-innocence phase of the trial, the prosecutor discussed the impact of drug-related crimes on society. The prosecutor linked rising taxes and insurance premiums to drug-related criminal activity, and he told the jury that it would be affected by the nation’s drug problem “sooner or later” and that Mr. Whitney’s trial was an “opportunity today to do something about this problem in Lafayette County.” Mr. Whitney argues those remarks were improper because they accused him of crimes and other conduct not charged, blamed him for the ills of society, and personalized the argument with the jury. There was neither an objection nor a motion for a mistrial.

Mr. Whitney also asks us to reverse his conviction because the Prosecutor, during closing argument in the sentencing phase, drew attention to the fact that Mr. Whitney did not call witnesses or produce evidence during the guilt-innocence phase of the trial, thus calling attention to the fact that he did not testify. There was, again, no objection or motion for mistrial.

For an allegation of error to be sustained as the result of a trial error, there must have been a timely and accurate objection. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987); Jones v. State, 248 Ark. 694, 453 S.W.2d 403 (1970); Wallace v. State, 53 Ark. App. 199, 202, 920 S.W.2d 864, 866 (1996). See also Floyd v. State, 278 Ark. 86, 89, 643 S.W.2d 555 (1982) (stating defendant “cannot complain for lack of a mistrial on appeal when none was requested”).

Mr. Whitney concedes he did not move for mistrial in response to the Prosecutor’s comments. He argues, however, that we should view defense counsel’s inaction as ineffective assistance of counsel and reverse on that basis. He asks us to remand the case so that the Trial Court may consider whether his counsel was ineffective. As authority for his request that we remand the case, Mr. Whitney cites Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). In that case the appeal was from a trial court’s denial of postconviction relief, not a direct appeal of the conviction.

Mr. Whitney is free to move for postconviction relief under Ark. R. Crim. Pro. 37 after his direct appeal to this Court is resolved. He may not raise his ineffective-assistance-of-counsel argument in this direct appeal because it was not an issue considered by the Trial Court. See Reed v. State, 323 Ark. 28, 29, 912 S.W.2d 929 (1996); Sumlin v. State, 319 Ark. 312, 313, 891 S.W.2d 375 (1995).

3. The sentence

Mr. Whitney urges that his sentence was so cruel and unusual as to be in violation of the Arkansas Constitution. We note that the sentence was within the limits placed by the statutes cited at the outset of this opinion, and we decline to consider the point further because no objection to the sentence was made before the Trial Court. Reece v. State, 325 Ark. 465, 928 S.W.2d 334 (1996). See Fellows v. State, 309 Ark. 545, 828 S.W.2d 847 (1992); Williams v. State, 303 Ark. 193, 194, 794 S.W.2d 618 (1990).

An additional argument with respect to the sentence is that the Trial Court improperly limited the testimony of a witness offered in mitigation. The argument concerns the testimony of Mr. Whitney’s sixth penalty-phase witness, Ms. Foots. The State argued that some of Ms. Foots’s testimony was irrelevant, and the objection was sustained. She had begun to speak of another criminal defendant who, she said, had not been permitted to defend himself in court. Defense Counsel concluded his examination of Ms. Foots and called a seventh witness, Mr. Pierce, after the Trial Court admonished against eliciting testimony bearing on Whitney’s guilt or innocence which had been concluded earlier.

Mr. Whitney argues the Trial Court should have given him wider “latitude in which to properly present all relevant mitigating circumstances.” The Trial Court did not err in sustaining the objection to Ms. Foots’s testimony, which had no bearing upon the sentence to be received by Mr. Whitney.

Affirmed.


author: Donald L. Corbin, Justice.

text:
    Dinzel Earl NORMAN v. STATE of Arkansas
    CR 95-361
    931 S.W.2d 96
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      The Law Offices of Greenhaw & Greenhaw, by: John E Greenhaw, for appellant.

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

Appellant, Dinzel Earl Norman, was convicted by a jury of conspiracy to manufacture methamphetamine and conspiracy to manufacture marijuana and was sentenced by the Newton County Circuit Court to a combined term of forty years in the Arkansas Department of Correction. Norman appeals the circuit court’s judgment of conviction, and this court has jurisdiction of the appeal pursuant to Ark. Sup. Ct. R. 1-2(a)(2). The sole issue on appeal is whether the trial court erred in denying Norman’s motion to suppress physical evidence recovered from his residence pursuant to a search warrant. We find no error and affirm.

In June 1993, Chesley Gordon, a confidential informant, contacted Investigator Lance King, of the Arkansas State Police. Gordon stated that he had made an arrangement with Norman to cook methamphetamine on Norman’s property in Newton County, Arkansas. Subsequently, officers of the Arkansas State Police and the Drug Enforcement Agency directed Gordon to go to Norman’s residence and begin the process of cooking the methamphetamine and notify them after the process had begun so that a search warrant could be obtained for Norman’s property. On June 25, 1993, Special Agent Steve Lowry of the Drug Enforcement Agency prepared an affidavit for search warrant on Norman’s property and presented it to the circuit judge who found that reasonable cause existed and issued a search warrant. After the search warrant had been issued, Gordon notified the officers that Norman would be arriving back at his residence that night. As a result of that information, Special Agent Lowry went back to the same circuit judge and obtained a new search warrant containing a nighttime search provision. The search warrant was executed on Norman’s property that night with the assistance of various local law enforcement officers. Officers seized numerous items of contraband including a clandestine methamphetamine lab found in a small camper trailer and sixty-five marijuana plants found growing on Norman’s property.

Norman moved to suppress the admission of the methamphetamine lab and marijuana plants. During the suppression hearing, Norman’s counsel argued that the trial court could not look beyond the face of the warrant itself to determine whether the officers’ search exceeded the scope provided by the warrant. Counsel further asserted that because the warrant only authorized a search of the premises of the residence, evidence of the methamphetamine lab found in the small camper trailer should be excluded. With respect to the marijuana plants, counsel challenged the use of the evidence against him on the grounds that the land on which the plants were growing was not specifically described in the warrant. Alternatively, counsel argued that there was no evidence to show that the property on which they were located belonged to him. On that issue, the trial court ruled that if it was Norman’s position that the land did not belong to him, then such search and resulting seizure of the items was not in violation of the Fourth Amendment based on the “open fields” doctrine.

On appeal, Norman argues that the evidence found in the small camper trailer as well as the marijuana plants should have been suppressed by the trial court because the scope of the search exceeded that provided for on the face of the search warrant. In support of his argument, Norman relies on Rule 13.3(c) of the Arkansas Rules of Criminal Procedure which provides in part that, “[t]he scope of search shall be only such as is authorized by the warrant and is reasonably necessary to discover the persons or things specified therein.”

The face of the search warrant identified the place to be searched as:

the person of Dinzel Norman and premises known and described as
A 20’ x 24’ Airstream trailer, silver in color, with the axle out from under it. Airstream has the tongue intact. There is a 10’ addition facing the tongue on the left, with a window on each end. The residence near Wayton, Arkansas.

Norman submits that the description of the property on the face of the search warrant was specific as to the scope of the search authorized and that, because the warrant did not particularly describe the small camper trailer, the shed, or the grounds of the property as places to be searched, any evidence found in those locations should have been suppressed. The State argues that any failure to list those places on the face of the search warrant was cured by their being described in the accompanying affidavit, which requests a search warrant for “the property, as well as all buildings, trailers, outbuildings and vehicles.” In the alternative, the State argues that the areas of the shed and camper trailer were encompassed within the definition of “premises” as used on the face of the search warrant. The State relies on definitions found in legal dictionaries and treatises.

The State is correct in its assertion that the definition of the term “premises” includes both the land of the property and the buildings and structures thereon. Professor LaFave stated in his treatise on the Fourth Amendment:

A search made under authority of a search warrant may extend to the entire area covered by the warrant’s description. For example, if the warrant authorizes search of a ranch, the entire acreage of the specified ranch may be searched. Similarly, if the warrant authorizes a search of “premises” at a certain described geographical location, buildings standing on that land may be searched. This means that if the place to be searched is identified by street number, the search is not limited to the dwelling house, but may also extend to the garage and other structures deemed to be within the curtilage and the yard within the curtilage.

Wayne R. LaFave, Search and Seizure § 4.10(a) (3d ed. 1996) (footnotes omitted).

Webster defines “premises” as “a specified piece or tract of land with the structures on it[.]” Webster’s Third New International Dictionary 1789 (1981). Additionally, the term “premises,” as used in search warrants, “includes land, buildings, and appurtenances thereto.” Black’s Law Dictionary 1181 (6th ed. 1990).

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, and we reverse only if the rufing is clearly against the preponderance of the evidence. State v. Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993) (citing Illinois v. Gates, 462 U.S. 213 (1983), and State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991)). We view the evidence in the fight most favorable to the appellee, and we reverse only if the rufing is clearly against the preponderance of the evidence. Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995); Mosley, 313 Ark. 616, 856 S.W.2d 623.

Requirements for the contents of search warrants are found in Rule 13.2(b) of the Arkansas Rules of Criminal Procedure, which provides in part that, “[t]he warrant shall state, or describe with particularity . . . the location and designation of the places to be searched[.]” Rule 16.2(e) provides in part that, “[a] motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state.”

This court has previously held that highly technical attacks on search warrants are not favored, as such attacks would only serve to discourage police officers from obtaining them. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987). In Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981), this court concluded that, “[s]uch documents are normally drafted by nonlawyers in the haste of a criminal investigation and are to be tested in a commonsense and realistic fashion, not with a grudging or negative attitude.” Id. at 143, 612 S.W.2d at 315 (citing Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977)).

In support of our holding in Watson, we quoted the United States Supreme Court’s language in United States v. Ventresca, 380 U.S. 102, 108 (1965):

These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

Id. at 367-68, 724 S.W.2d at 483.

This court has previously had occasion to pass upon cases similar to this one. In Baxter, 262 Ark. 303, 556 S.W.2d 428, this court upheld the validity of a search in spite of Baxter’s argument that the property to be searched was not described with particularity on the face of the warrant. The' search warrant described the place to be searched as “the house occupied by Faron Baxter.” This court concluded that even though the language in the search warrant was vague, the affidavit attached to the warrant described the location with particularity, and thus, the search of Baxter’s home was proper.

In Beshears, 320 Ark. 573, 898 S.W.2d 49, a case more factually similar to the one at hand, the appellant argued that because the search warrant obtained by the officers was limited to a search of his residence, the search of his business property was unlawful. The warrant itself only authorized officers to search Beshears’s residence, although the affidavit used to obtain the warrant included “ ‘all offices, shop buildings, grain bins, control rooms” and “other equipment on property known as the Beshears’s property.’ ” Id. at 579, 898 S.W.2d at 52. Beshears argued that because these areas were omitted from the face of the search warrant, the search exceeded the authority granted by the warrant. This court affirmed the trial court’s ruhng, concluding that:

We point out that the requirement of particularity of describing the location and place to be searched is to avoid the risk of the wrong property being searched or seized. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987). This court stated that the test for determining the adequacy of the description of the place to be searched under a warrant is whether it enables the executing officer to locate and identify the premises with reasonable effort and whether there is any likelihood that another place might be mistakenly searched. Costner v. State, 318 Ark. 806, 887 S.W.2d 533 (1994). The risk of misidentification is minimized when the same law enforcement officer who applies for the warrant executes it. Id. And in determining whether a particular description is sufficient under this test, courts must use common sense and not subject the description to hypercritical review. Watson, 291 Ark. 358, 724 S.W.2d 478.

Id. at 579-80, 898 S.W.2d at 52.

In the case at hand, Special Agent Lowry testified that he prepared both the affidavit and the search warrant and that he, along with other law enforcement officers, served the warrant and conducted the search of Norman’s property. Lowry stated that the reason he did not include the language of “all buildings, trailers, outbuildings and vehicles,” found in the affidavit, in the body of the search warrant was that he believed the affidavit was incorporated into the warrant. Lowry stated that the affidavit was submitted to the issuing judge along with the search warrant for the judge’s consideration. Additionally, Lowry stated that although he prepared both the search warrant and the accompanying affidavit, he merely dictated the search warrant and an unknown employee of the Arkansas State Police typed it from the dictation.

We conclude that Lowry’s explanation of the discrepancy between the search warrant and the affidavit was reasonable and that the search did not exceed that authorized by the circuit judge who based his issuance of the warrant on the affidavit submitted by the agent. We are also persuaded by the fact that the face of the warrant did include the “premises” of Norman’s property, and that a common interpretation of that term combined with the language found in the affidavit was sufficient to authorize the search of the outbuildings and the land itself. We affirm the judgment of conviction.


author: ROBERT L. Brown, Justice.

text:
    NUCOR HOLDING CORPORATION and Yamato Holding Corporation d/b/a Nucor-Yamato Steel Company, Limited Partnership v. Rickey L. RINKINES and Gloria Rinkines
    95-1200
    931 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      Reid, Burge, Prevallet & Coleman, by: Robert L. Coleman, for appellants.

      Banks, Dobson & Spades, by: Charles A. Banks, for appellees.
   ROBERT L. Brown, Justice.

This matter combines an appeal from a denial of a motion for summary judgment and a petition for a writ of prohibition. Appellee Rickey L. Rinkines worked for Alexander Mills Services (AMS), which had a contract to recycle scrap steel for Nucor-Yamato Steel (Nucor). Nucor is in the business of manufacturing structural steel beams from scrap metal. Part of Rinkines’s duties required him to cut rejected beam blanks into suitable sizes so that they could be remelted and remolded.

On August 5, 1993, Rinkines suffered an injury on the job. At the time of the injury, AMS employees performed their duties on the Nucor premises. According to Rinkines’s complaint, he had cut about six inches into a beam with a torch when the beam “exploded.” The 24-ton beam moved approximately four feet, pinning Rinkines against another beam and crushing his legs. This resulted in the amputation of both legs. Rinkines sought and received workers’ compensation benefits from AMS. He then sued Nucor under theories of negligence and products liability and specifically alleged that the beam blank that exploded was defective and unreasonably dangerous due to residual stress in the beam. He also asserted that Nucor had been negligent in permitting the beam to acquire residual stress and in failing to inspect the beam properly, to warn employees of potential dangers, and to instruct employees on the beam’s safe use.

On August 8, 1994, Nucor answered and moved to dismiss. It denied that the beam blank was distributed to AMS as a product because it was not finished material but only scrap that needed to be remelted. Nucor further contended as an affirmative defense that the circuit court had no subject matter jurisdiction because Rinkines’s exclusive remedy was under the Workers’ Compensation Act. More specifically, Nucor asserted that as a prime contractor, it was the statutory employer of Rinkines and, thus, was immune from tort liability under Act 796 of 1993, now codified at Ark. Code Ann. § ll-9-105(a) (Repl. 1996). The affidavit of John Alexander, the president of AMS, was attached to Nucor’s answer and motion to dismiss. In it, Alexander stated that his company was a subcontractor of Nucor and that he considered Nucor to be a prime contractor. In his response to the motion to dismiss, Rinkines asserted that he was not a “statutory employee” of Nucor and further claimed that the Workers’ Compensation Act did not act as a bar to claims against third parties.

On April 17, 1995, Nucor filed a motion for summary judgment. It maintained in that motion that there was no genuine issue of material fact and further asserted (1) that Rinkines’s complaint was barred because AMS was an independent contractor with exclusive control over the workplace, and (2) that it was immune from suit under the Workers’ Compensation Act because Nucor was the “prime contractor of the employer” of Rinkines. Nucor also advanced the theory that there was no proximate causation under the obvious-danger rule. On April 27, 1995, Rinkines responded that his suit lay outside the jurisdiction of the Workers’ Compensation Act because it was not a suit about standard negligence against a subcontractor’s employee. Rather, the suit concerned Nucor’s “defective product either in negligence or strict liability.” Rinkines further stated that “[t]he purpose of the exclusive remedy of workers' compensation is not to protect manufacturers of unreasonably dangerous products.”

On July 25, 1995, the trial court denied the motion for summary judgment and stated in part in its letter opinion:

Defendant furthermore contends that it is entided to summary judgment because “NYS is immuned (sic) from suit and plaintiff’s tort claim against it is barred based on the exclusive remedy provisions codified at A.C.A. section 11-9-105(a) because NYS was the prime contractor of the employer of Mr. Rinkines at the time of the accident.
The defendant is trying to have it’s [sic] cake and eat it too. In its second contention, it stated that the plaintiff was employed by an independent contractor. Now it wants to say that plaintiff was not employed by an independent contractor but by a sub-contractor.
The employer of an independent contractor is simply a third party to the relationship between the independent contractor and his employees. The worker compensation Act (sic) was not intended to extend to an employer for an injury to an employee’s cause of action against a third party. . . .

I. Appeal From Denial of Motion for Summary Judgment

The general rule is that the denial of a motion for summary judgment is neither reviewable nor appealable. Amalgamated Clothing v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994). Nevertheless, Nucor asserts that this court must review the summary judgment denial in this case because to do otherwise will deny Nucor its immunity defense under the exclusive-remedy language of the Workers’ Compensation Act. Nucor bases this argument on Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987), and Virden v. Roper, 302 Ark. 125, 788 S.W.2d 470 (1990).

In Robinson v. Beaumont, the defendants-appellants were a sheriff and deputy who appealed the denial of a motion for summary judgment based on the immunity issue. This court held:

The refusal to grant the motion amounted to a denial of appellants’ claimed defense which would have, if allowed, discontinued the action. The qualified immunity claim is a claim of right which is separable from, and collateral to, rights asserted in the complaint. . . . The refusal to grant this summary judgment motion had the effect of determining that the appellants were not entitled to immunity from suit. The right of qualified immunity from suit is effectively lost if a case is permitted to go to trial.

Robinson v. Beaumont, 291 Ark. at 482-83, 725 S.W.2d at 842. In Virden v. Roper, supra, the defendants-appellants were members of the Pine Bluff Civil Service Commission and the Chief of the Pine Bluff Police Department who were sued in their individual capacities. They appealed from the denial of a motion for summary judgment on the premise that forcing them to trial would eviscerate their immunity defense and, thus, was an appropriate subject for appellate review. In addressing our jurisdiction on appeal, we cited Robinson v. Beaumont, supra, and stated: “The appealability of a denial of summary judgment based on qualified immunity from suit is clearly established.” Virden v. Roper, 302 Ark. at 128, 788 S.W.2d at 472.

This court has never squarely addressed whether an appeal is appropriate from a denial of a summary judgment motion when the issue raised is the exclusivity of the remedy under the Workers’ Compensation Act. In Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), we cited Robinson v. Beaumont, supra, and indicated in dictum that the immunity analysis in that case was valid when considering a petition for writ of prohibition. We held in Fore that prohibition would lie to prevent a trial where the exclusive remedy for the injured employee was under the Workers’ Compensation Act.

Fore, however, was a prohibition case and not an appeal from a denial of summary judgment. This court has repeatedly refused to address arguments where the effect of doing so is tantamount to reviewing the denial of a motion for summary judgment. See, e.g., Nucor-Yamato Steel Co. v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994); Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993), reh’g denied, 315 Ark. 336A, 869 S.W.2d 8 (1994). We have also made it clear that the denial of a motion to dismiss an appeal is not an appealable order and that a disputed ruling on the subject matter jurisdiction of the trial court does not automatically render the order appealable. See West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994); Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988), reh’g granted, 294 Ark. 506A, 746 S.W.2d 558 (1988). In Wise Co. v. Clay Circuit, supra, we emphasized once more that we will not treat a petition for prohibition as an appeal from a summary judgment denial and consider matters outside of the pleadings. In our supplemental opinion in Wise Co., we specifically overruled Fore v. Circuit Court of Izard County, supra, to the extent that it sanctioned writs of prohibition based on information outside of the pleadings.

In short, this court has voiced a decided preference against accepting appeals from denials of motions for summary judgment and has never held that an employer’s immunity defense obliged this court to favor accepting such an appeal in workers’ compensation cases. We, therefore, dismiss the appeal for lack of finality. See Rick’s Pro Dive ‘N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991). We note in this regard that Nucor’s immunity argument is grounded on the exclusive-remedy provision of Ark. Code Ann. § 11-9-105 (a) (Repl. 1996). We view this as an issue of subject matter jurisdiction, which Nucor has raised in its petition for writ of prohibition and which we will consider next.

II. Writ of Prohibition

This court has routinely considered the propriety of a writ of prohibition when a trial court has been reluctant to dismiss a case under the exclusive-remedy provision of the Workers’ Compensation Act. See, e.g., Nucor-Yamato Steel Co. v. Circuit Court, supra; Wise Co. v. Clay Circuit, supra; Fore v. Circuit Court of Izard County, supra. See also West Memphis Sch. Dist. No. 4 v. Circuit Court, supra.

Our standards for review have been often repeated. A writ of prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. West Memphis Sch. Dist. No. 4 v. Circuit Court, supra. In deciding whether the writ will lie, we confine our review to the pleadings. Wise Co. v. Clay Circuit, supra. The writ will be granted where the encroachment on workers’ compensation jurisdiction is clear. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993); Fore v. Circuit Court of Izard County, supra. But when facts are in dispute, a writ of prohibition is not appropriate. Nucor-Yamato Steel Co. v. Circuit Court, supra. Prohibition will not lie where the remedy may be afforded by appeal. Nucor-Yamato Steel Co. v. Circuit Court, supra; Village Creek Improvement Dist. of Lawrence County v. Story, 287 Ark. 200, 697 S.W.2d 886 (1985).

The essence of Nucor’s argument in favor of prohibition is that it is a prime contractor and the General Assembly, through Act 796 of 1993, established that the “prime contractor of the employer” of the injured employee is protected from suit by the exclusive-remedy provision of the Workers’ Compensation Act. Ark. Code Ann. § 11-9-105 (a) (Repl. 1996). Nucor calls on this court to find that it is the “prime contractor of the employer” in this case. The parties agree that AMS is an independent contractor. They also concede that no specific third party had contracted with Nucor for the steel product that would result from AMS’s recycling work at the time of the injury.

In Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982), the Court of Appeals observed that there is a considerable distinction between a subcontractor and an independent contractor. The Bailey court observed that in order for there to be a subcontractor relationship, the person sought to be charged as prime contractor must have been contractually obligated to a third party for the work being done at the time of the injury. Cf. Little Rock Wastewater Utility v. Larry Moyer Trucking, Inc., 321 Ark. 303, 902 S.W.2d 760 (1995); Brothers v. Dierks Lumber & Coal Co., 217 Ark. 632, 232 S.W.2d 646 (1950). The Bailey court defined a subcontractor as a person who agrees to perform part of a contract for a person who has already agreed to perform the contract for a third party. The Court of Appeals concluded that there cannot be a prime contractor without a contract to do the work for a third party. See also Lofton v. Bryan, 237 Ark. 376, 373 S.W.2d 145 (1963).

Whether the General Assembly intended to define the term “prime contractor” in § 11-9-105 (a) narrowly or broadly cannot be determined from the language of Act 796 of 1993. Because we have no guidance from the General Assembly in this regard, we look to our cases for a definition. Following the rationale of Bailey v. Simmons, supra, it is clear to us that the status of prime contractor presupposes work to be done for a third party. Here, the parties agree that was not the case because there was no obligation to a third party to purchase the steel scrap refabricated by AMS at the time of the injury. Without the existence of that essential factor, we must conclude that Nucor did not occupy the status of prime contractor as defined by our caselaw.

By denying the petition for writ of prohibition, we are not endorsing the apparent finding by the trial court that an independent contractor cannot occupy the status of subcontractor. The status of independent contractor does differ from that of subcontractor. See Hollingsworth & Rockwood Ins. Co. v. Evans, 255 Ark. 387, 500 S.W.2d 382 (1973). At the same time, a subcontractor may also qualify as an independent contractor that has entered into an agreement with a prime contractor. See, e.g., Hale v. Mansfield Lumber Co., 237 Ark. 854, 376 S.W.2d 670 (1964).

Appeal dismissed. Petition denied.


author: Andree Layton Roaf, Justice.

text:
    Ginger Wyre HOWARD v. OZARK GUIDANCE CENTER
    96-175
    930 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      Brenda Horn Austin, for appellant.

      Davis, Cox & Wright, by: Walter B. Cox and Tim E. Howell, for appellee.
   Andree Layton Roaf, Justice.

Appellant, Ginger Howard, was a patient of the appellee, Ozark Guidance Center (“OGC”). Howard sued OGC, claiming that it negligently allowed an affair to continue between its receptionist and Howard’s husband. The trial judge granted OGC’s motion for summary judgment because the three-year statute of limitations for negligence actions had expired. On appeal, Howard claims that the trial court erred in not applying the continuous-treatment doctrine to toll the statute of limitations. We agree that the continuous-treatment doctrine does not apply to Howard’s cause of action, and affirm.

In June of 1986, Ginger Howard began receiving counseling services at Ozark Guidance Center, Inc. During this time, Howard became romantically involved with Lee Wyre, another OGC patient and the two were married on May 20, 1989. After their marriage, both Howard and Wyre continued their individual therapy sessions and also began marriage counseling with OGC.

In February 1990, Howard began to suspect that OGC’s receptionist, Stephanie VanBrunt, was having an affair with her husband. About this time, Howard and Wyre separated. After confirming her suspicions, Howard reported the affair to her therapist who in turn relayed this information to VanBrunt’s immediate supervisor. On March 15, 1990, the supervisor gave VanBrunt a “verbal reprimand” that her behavior “violated the professional ethics outlined” for OGC employees and directed VanBrunt to “refrain from having contact with the designated client while at work.” Despite this warning, VanBrunt continued her adulterous relationship with Wyre. On March 27, 1990, the supervisor gave VanBrunt a written warning which said:

your continued contact with this client is unacceptable and is affecting the effectiveness and reputation of Ozark Guidance Center. ... In the event that it is determined that you are continuing to associate with this client, Ozark Guidance Center will terminate your employment.

On June 12, 1990, Howard notified OGC that VanBrunt was continuing her sexual relationship with Wyre in violation of OGC’s verbal warning and written reprimand. Instead of firing her as threatened, OGC suspended VanBrunt with pay for six days, transferred her to another OGC location, and again instructed her to end her relationship with Wyre.

Howard and Wyre were divorced on October 18, 1990. It is not apparent when the relationship between Wyre and VanBrunt ended. However, on June 29, 1992 VanBrunt informed OGC that her relationship with Mr. Wyre would no longer be a problem because she had recently accepted a marriage proposal from Wyre’s brother. It is also unclear when, if ever, Howard ceased attending her therapy sessions at OGC. According to her complaint, Howard continued her therapy until June 12, 1991. However, in her answers to OGC’s interrogatories, Howard declared that as of December 3, 1993, she was “still under treatment of a case manager there at Ozark Guidance Center, whom I see once a week.”

On June 7, 1993, Howard filed a complaint in the Washington County Circuit Court alleging that OGC was negligent because it failed to take adequate measures to end the affair, declined to terminate VanBrunt, and did not implement a company policy addressing romantic relationships between clients and nonprofessional staff members. Howard’s complaint did not specifically allege “medical malpractice” or refer to the medical malpractice statute.

OGC filed a motion for summary judgment in which it alleged that the action was barred by the three-year statute of limitations for negligence actions. Howard responded by asserting that her action was one for medical malpractice, not negligence, and thus the continuous-treatment doctrine was applicable to toll the limitations period. The trial court found that Howard’s lawsuit was barred by the three-year statute of limitations for negligence actions and dismissed the case with prejudice.

Howard’s sole argument on appeal is that the continuous-treatment doctrine applies to her case, and thus her action was improperly dismissed by the trial judge. In 1988, this court first recognized the “continuous-treatment doctrine,” which tolls the two-year statute of limitations for medical malpractice actions until the medical treatment is discontinued. Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). However, before we can reach the issue of the applicability of the continuous-treatment doctrine, we must first decide whether Howard’s cause of action is one for negligence or medical malpractice.

All negligent acts that occur at a doctor’s office do not give rise to an action for medical malpractice. For example, a person who slips and falls in a doctor’s office might have a cause of action based on premises liability, not medical malpractice. In order for the medical-malpractice act to apply, the negligent act must cause a “medical injury” which is defined as:

any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services....

Ark. Code Ann. § 16-114-201(3) (1987) (emphasis supplied). Thus, the initial question to be answered in this case is whether Howard suffered a “medical injury” as defined by the statute.

This court has addressed on several occasions the question of what constitutes a medical injury under the malpractice act. In Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991), a nursing home patient left the facility unnoticed in his wheelchair and was subsequently struck and killed by a car. We found that the patient’s death was an issue of negligent supervision, and not “the result of a doctor’s treatment or order,” and that the case was thus one of negligence, not malpractice. Id.

Likewise in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), this court reviewed a case of alleged negligent supervision of a patient. In Broum, a patient at a alcohol treatment center walked out of an unlocked door onto the roof of the center and jumped or fell to his death. Id. Although we held that the failure by the treatment center to provide a safe environment for its patients constituted a “medical injury” under the statute, we reconsidered this holding in Bailey, supra, and overruled the Broum decision, stating that:

On reexamination, we conclude that the facts set out in

Brown did not fall within the definition of medical injury. ...[T]he circumstances in Brown did not involve a PROFESSIONAL SERVICE but instead raised only the question of whether a patient was properly supervised by the health center’s staff.

Bailey, 307 Ark. at 19, 817 S.W.2d at 414.

Three years later, this court again considered the definition of medical injury under the malpractice statute. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). In Wyatt, a hospital nurse told a relative that Wyatt was being tested for AIDS. Id. Wyatt sued the nurse and the hospital for malpractice for the failure “to maintain medical confidentiality.” Id. This court found that “revealing confidential information” did not “fall within our expressed view of what constitutes a medical injury.” Id. Quoting a New York Supreme Court decision, we explained that:

The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve A MATTER OF MEDICAL SCIENCE OR ART REQUIRING SPECIAL SKILLS not ordinarily possessed by lay persons....

Id., 315 Ark. at 554, 868 S.W.2d at 509. (quoting Bonillo v. Beekman Downtown Hospital, 537 N.Y.S.2d 219 (N.Y. Sup. Ct. 1989)) (emphasis supplied). Thus, we determined that a breach of the patient-doctor confidentiality was an action in negligence, not malpractice. Id.

In sum, it is clear from our décisions that in order to be a “medical injury” the injury must be the result of a “professional service,” “a doctor’s treatment or order,” or “a matter of medical science.” Bailey, supra; Wyatt, supra. Howard’s complaint alleges that OGC was negligent in its handling of an employee’s relationship with a client. How a medical office supervises its staff is not a matter of “medical science” or the rendition of a “professional service”; consequendy, it is not a medical injury as required by the malpractice statute. The trial court therefore correctly applied the three-year statute of limitations for negligence actions in this instance.

Affirmed.