author: Darrell Hickman, Justice.

text:
    OTTER CREEK MALL and Otter Creek Mall Company v. QUINN COMPANIES, INC., et al.
    88-114
    759 S.W.2d 810
    Supreme Court of Arkansas
    Opinion delivered November 21, 1988

      House, Wallace & Jewell, P.A., for appellant.

      Kaplan, Brewer & Miller, P.A., for appellee.
   Darrell Hickman, Justice.

This is an appeal from a dismissal of the appellants’ interpleader action. We hold it is not a final order and dismiss the appeal under ARCP Rule 54(b).

There was an existing lawsuit between the appellee Luke Quinn and two entities called Otter Creek Park and Otter Creek Park Company. The appellants, not parties to that lawsuit, owed Quinn $37,337.68 on a note.

Proceeding more like intervenors, the appellants filed a motion for interpleader in the existing lawsuit alleging the money was claimed not only by Quinn but by Otter Creek Park.

A special judge signed an ex parte order granting the motion. Upon learning of this, Quinn immediately asked that the interpleader be dismissed saying there were no competing claims to the money. The regular trial judge set aside the ex parte order and dismissed the appellants from the suit.

The interpleader was not filed as an original, independent action. The appellants injected themselves into an existing lawsuit. As a result the order dismissing them left other claims and parties remaining in the case and was not a final order. ARCP Rule 54(b).

Appeal dismissed.

Purtle, J., not participating.


source: Caselaw Access Project

author: John I. Purtle, Justice. Tom Glaze, Justice, Steele Hays, Justice,

license: Public Domain

text:
    MISSOURI PACIFIC RAILROAD COMPANY and Union Pacific Railroad Company v. Betty L. MACKEY, Executrix of the Estate of Cleo Franklin Mackey, Deceased
    88-90
    760 S.W.2d 59
    Supreme Court of Arkansas
    Opinion delivered November 21, 1988
    [Rehearing denied December 19, 1988.]

      Herschel H. Friday, Michael G. Thompson, and Elizabeth J. Robben, for appellant.

      Walters Law Firm, P.A., by: Bill Walters, for appellee.
   John I. Purtle, Justice.

This is an appeal from a jury verdict and judgment in a wrongful death case. The death resulted from a pickup truck and train collision at a railroad and highway intersection. The verdict and judgment in favor of the appellee totaled $550,000.00. The appellant argues seven points for reversal: (1) the trial court erred in refusing to direct a verdict in favor of the defendants on the issue of causation; (2) the trial court erred in submitting the whistle and bell issue to the jury; (3) the trial court erred in submitting the issue of conscious pain and suffering to the jury; (4) the trial court erred in submitting the issue of punitive damages to the jury; (5) the Arkansas vegetation statute is preempted by federal law and the trial court erred in instructing the jury on the statute; (6) the trial court erred in its evidentiary rulings; and (7) Union Pacific railroad company should have been dismissed as a defendant. Although the case is reversed and remanded, it is necessary to discuss all of the points raised to provide guidance at the second trial.

Cleo Mackey was driving his pickup truck south on Highway 41 in Franklin County, Arkansas, about 1:50 p.m., on July 27, 1984, when it collided with an eastbound Missouri Pacific train. Mackey died shortly thereafter as a result of injuries received in the collision. There was testimony to the effect that the truck was traveling south at a speed between 20 and 40 miles per hour immediately prior to the collision. The uncontradicted testimony was that the engineer blew the whistle and sounded the bell when the train was somewhere between 250 and 1500 feet west of the intersection of the railroad and Highway 41.

The pickup left 38 feet of skid marks prior to stopping, with the front end of the truck in the center of the railroad tracks. Expert testimony indicated that the pickup was driving between 20 and 30 miles per hour when the brakes were applied. Also, expert testimony indicated that the truck would have stopped prior to reaching the track if it had not been for loose gravel on the highway. The highway had been treated with hot asphalt and loose gravel on the date of the collision.

Evidence reveals that the railroad had allowed trees and underbrush to grow on the railroad right-of-way near this highway and railroad crossing. The exact distance at which a train could be observed from the highway was not established. Of course, as a vehicle approached the track, the driver could see farther down the tracks and the converse is true as it relates to the engineer operating the train.

A model built at the appellee’s request and introduced at the trial portrayed the railroad right-of-way as being heavily overgrown with shrubs and trees. Also, ground level and area photographs of the scene were introduced into evidence. An eyewitness to the occurrence observed the vehicle approaching from the north several hundred feet before it reached the intersection. At the same time, he heard the train whistle and observed the train some 250 feet west of the intersection. He was the first person to the scene and observed the decedent as he was immediately after the occurrence. He was at the vehicle within seconds after the collision and observed the decedent lying partly in the floorboard and partly in the seat of the truck. He could not see the injured party’s eyes but his arms were jumping and he was shaking a little bit. He was making a noise when he breathed through his mouth and when he breathed through his nose. The witness stated: “He could not get enough air one way and would try another because he would make two different sounds.” The vital signs of the decedent apparently stopped on the way to the hospital, and he was resuscitated. The emergency room doctor, who pronounced him dead in the emergency room, stated that it was “most unlikely” that the decedent experienced any conscious pain and suffering.

I. THE TRIAL COURT ERRED IN REFUSING TO DIRECT A VERDICT IN FAVOR OF THE DEFENDANTS ON THE ISSUE OF CAUSATION.

The appellant argues that the “sole proximate cause of the accident” was the presence of the loose gravel on the highway. There was strong evidence, both expert and otherwise, that the vehicle would have stopped prior to the collision had it not been for the loose gravel. However, the fact that he did not apply his brakes sooner, thereby being able to stop in spite of the loose gravel, may have been the result of an obstructed view caused by the growth on the railroad right-of-way. There was evidence from which the jury may well have found that the undergrowth prevented the decedent from observing the train at an earlier time and place. The burden of proving an independent intervening factor is with the party asserting it. Kelley v. Wiggins, 291 Ark. 280, 724 S.W.2d 443 (1987). Intervening negligence which bars recovery of the original wrongdoer has been discussed by this court in Bashlin v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), and Gatlin v. Cooper Tire and Rubber Company, 252 Ark. 839, 481 S.W.2d 338 (1972). We held in Bashlin that an intervening act of negligence is no defense unless it is the sole proximate cause of the injury or damages and that a party may recover from the original actor if the negligence of the original actor was still a contributing factor. An independent intervening cause has been held to bar recovery from the original tortfeasor in the case of Cowart, Adm’x. v. Jones, 250 Ark. 881, 467 S.W.2d 710 (1971). See also, Larson Machines, Inc. v. Wallace, 260 Ark. 192, 600 S.W.2d 1 (1980). The growth on the railroad right-of-way was substantial evidence to allow the jury to find that it was a proximate cause of this occurrence. Whether both or either the negligence of the railroad or the highway department were proximate causes of the damage and injuries in this case were matters to be decided by the jury. Hergeth v. Green, 293 Ark. 119, 733 S.W.2d 409 (1987). When reviewing the denial of a directed verdict, we view the evidence in light most favorable to the appellee. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). The trial court did not err in refusing to grant a directed verdict on causation.

II. THE TRIAL COURT ERRED IN SUBMITTING THE WHISTLE AND BELL ISSUE TO THE JURY.

The engineer testified that he started sounding the whistle and bell when he was some fourteen to fifteen hundred feet from the intersection. He stated that he knew that he did so for at least thirteen hundred and twenty feet, which he knew was a quarter of a mile. Two independent witnesses testified that they heard the train whistle sounding before the occurrence. One of these witnesses never saw the train but the other witness witnessed the actual impact. This witness said the train whistle sounded while he was watching the pickup and when he looked toward the train it was about two hundred and fifty feet from the intersection. There was no testimony or evidence introduced to indicate that the whistle or bell did not sound. We recently decided a similar case in Missouri Pacific Railroad Company v. Biddle, 293 Ark. 148-A, 737 S.W.2d 625 (1987) (Opinion on rehearing). In Biddle we held that in the absence of any evidence that the bell was not sounded the matter should not have been presented to the jury. Since the trial court presented the issue to the jury, we reversed and dismissed because there was no other issue remaining. The testimony of the engineer and the witnesses in the present case was not contradicted. Therefore, it was error to present this matter to the jury. We held it was error to give an inapplicable instruction in Hunter v. McDaniel, 274 Ark. 178, 623 S.W.2d 196 (1981), and CRT, Inc. v. Dunn, 248 Ark. 197, 451 S.W.2d 215 (1970). Since the jury may have found that the train did not ring the bell or sound the whistle, thereby establishing proximate cause, we find prejudicial error.

III. THE TRIAL COURT ERRED IN SUBMITTING THE ISSUE OF CONSCIOUS PAIN AND SUFFERING TO THE JURY.

Witness Gerald Clayton observed the accident and immediately went to the scene. Although he could not see the driver’s eyes, he did see him making twisting and jerking movements and heard him making different noises through his mouth and nose. He indicated that when it would become more difficult for the victim to breathe through the mouth, he would change to the nose and when that became difficult, he switched back to breathing through his mouth. There is some evidence, from the witness’s observation, that the deceased was conscious. The emergency room doctor testified that it would have been “most unlikely” that Mr. Mackey experienced any conscious pain and suffering. The doctor’s statement does not rule out the possibility that the decedent actually suffered conscious pain. Therefore, viewing the evidence in the light most favorable to the appellee, we cannot say that there was no substantial evidence supporting this instruction and that it should not have been presented to the jury. This is one of those issues which may not develop exactly the same at a second trial. Although the evidence in the matter was “very meager,” we think it rose to the level of that found in the case of Ashcraft v. Jerome Hardwood Lumber Company, 173 Ark. 135, 292 S.W. 386 (1927). Our cases have dealt with the facts and circumstances of each case and relied heavily on the nature and extent of the injuries when determining whether conscious pain and suffering are recoverable. A question for the jury was established in this case.

IV. THE TRIAL COURT ERRED IN SUBMITTING THE ISSUE OF PUNITIVE DAMAGES TO THE JURY.

There is no question that there was evidence that the railroad was negligent in not properly maintaining its right-of-way. However, the evidence does not rise to the level of allowing punitive damages as we found in the somewhat similar case of Missouri Pacific Railroad Company v. Arkansas Sheriff's Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983). In the Boys'Ranch case there was evidence that corporate representatives had stated it was cheaper to settle a claim than to maintain the right-of-ways. Here the evidence most favorable to the appellee in this regard was the testimony of a former employee of Missouri Pacific Railroad that he had requested that the right-of-ways in this area be cleared of undergrowth. This same witness testified that usually when he made a request it was followed up, albeit slowly. He did not specifically request that the undergrowth at this particular intersection be cleared. There was no evidence that this was a hazardous crossing nor was there other evidence indicating the dangers had been presented to the railroad company. There is no direct evidence that the railroad company intentionally or wantonly disregarded any warnings relating to the danger of this situation: Punitive damages are only justified when the defendant acts wantonly or with such conscious indifference to the consequences of his acts that malice may be inferred. National By-Products, Inc. v. Searcy House Moving Company, 292 Ark. 491, 731 S.W.2d 194 (1987). In National By-Products, we quoted from Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983), with approval, as follows:

In other words, in order to superadd this element of damages by way of punishment, it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences, from which malice may be inferred.

In National By-Products we stated there was proof of gross negligence but that gross negligence is not sufficient to justify punitive damages. We have further stated that negligence, however gross, will not justify an award for punitive damages. Freeman v. Anderson, supra. Therefore, it was prejudicial error on this point for the trial court to submit the issue of punitive damages to the jury.

V. THE ARKANSAS VEGETATION STATUTE IS PREEMPTED BY FEDERAL LAW AND THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE STATUTE.

Several witnesses testified that the vegetation growth on the railroad right-of-way was considerable. Some witnesses stated it was sufficient to obscure the vision between the vehicle and a train until it was too late to avoid a collision. This testimony was broad enough to include the “road bed” as being part of the area where the growth had occurred. Also, it was obvious that the testimony covered right-of-way outside the road bed.

Ark. Code Ann. § 23-12-201 (1987) provides that railroads shall “maintain their right-of-way at or around any railroad crossing of a public road or highway free from grass, trees, bushes, shrubs, or other growing vegetation which may obstruct the view of pedestrians and vehicle operators using the public highways.” The statute provides for clearance of such right-of-ways for a distance of a hundred yards in either direction of a railroad crossing. The federal law on this point, which allegedly preempts the state law, is 49 CFR § 213.37 (1986). It reads as follows: “Vegetation on railroad property which is on or immediately adjacent to the road bed must be controlled so that it does not (a) become a fire hazard . . . (b) obstruct visibility of railroad signs and signals; (c) interfere with railroad employees performing normal track side duties; (d) prevent proper functioning of signals and communication lines; or (e) prevent railroad employees from visually inspecting moving equipment from their normal duty stations. .

It is obvious on the face of the rules that the federal regulation is expressly for the purpose of preventing fire hazards to track-carrying structures and equipment and to prevent interference with employees’ performance of their duties. On the other hand, the Arkansas statute clearly is intended to protect pedestrians and operators of vehicles.

The Federal Railroad Safety Act (FRSA) addressed the role of the state in regulating railway safety when it provided as follows:

A state may adopt of continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A state may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

It is argued that the federal rule earlier cited preempts the state statute because the supremacy clause of the United States Constitution, article 6, prohibits states from legislating in the area where a federal rule or statute exists. The supremacy clause invalidates a state law which interferes with a federal law if: (1) congress expressly preempts it, or (2) if the congressional scheme is so comprehensive that no room is left for state regulation, or (3) the state law stands as an obstacle to the accomplishment of congressional objectives. Hillsboroughs County, Florida v. Au tomated Medical Laboratory, Inc., 471 U.S. 707 (1985). We do not find the state law to have been preempted under any of these three tests. In fact, it is quite evident that the state and federal laws can be read without conflict. Therefore, Ark. Code Ann. § 23-12-201 (1987) has not been preempted by federal law.

VI. THE TRIAL COURT ERRED IN ITS EVIDEN-TIARY RULING.

We note the various rulings on evidence presented because they may be relevant on retrial. The basic rule is that the admittance into the record of testimony or other evidence is a discretionary matter with the trial court. We have previously mentioned the introduction of the model as being within the discretion of the court. It may be that no objections will be raised at the second trial or objections which were not raised before may be raised. There may be additional information added or the model may be otherwise updated. We cannot anticipate the manner of presentation at the next trial.

Jim Corgil, a former employee of Missouri Pacific Railroad Company, testified that other employees had told him that they had requested the railroad to do something about the condition of the growth on the right-of-way. Proper objection was made on the basis of hearsay. The appellee argues that they were not offered to prove the truth of the matter stated, an exception to A.R.E. Rule 801, but rather to show that conditions of the right-of-way had been brought to the attention of the railroad officials. Such testimony was obviously an attempt to prove the truth of the matter asserted. Under the conditions as they existed at the time of the trial, it was error for the court to allow this hearsay testimony.

During cross-examination of the appellee, counsel for appellant requested permission to read two pages from the plaintiffs discovery deposition. The court sustained the plaintiffs objection. We agree with the appellant that ARCP Rule 32(2) provides that the deposition of a party may be used by the adverse party for any purpose at the trial. However, we cannot discern any prejudice on the record as it stands. This again is a matter which will not likely duplicate itself on retrial.

VII. UNION PACIFIC RAILROAD COMPANY SHOULD HAVE BEEN DISMISSED AS A DEFENDANT.

Appellant is correct on the matter of dismissing the action against Union Pacific Railroad Company. The answers to interrogatories clearly reveal that Union Pacific Railroad Company and Missouri Pacific Railroad Company are sister corporations owned by the Union Pacific Corporation. There was no evidence at all in the record to indicate that Union Pacific Railroad Company was in any way involved in this occurrence. It was a Missouri Pacific railroad and the train was owned by Missouri Pacific. The operators of the train were employees of Missouri Pacific. No nexus having been shown connecting Union Pacific Railroad to the matters involved, we agree that it should not have been a party to this action. Therefore, the judgment as to the Union Pacific Railroad Company is reversed.

Reversed and remanded with directions to proceed in a manner not inconsistent with this opinion.

Holt, C.J., and Glaze, J., concur in part and dissent in part.

Hays, J., dissents.

Tom Glaze, Justice,

concurring in part; dissenting in part. While I agree with the result reached by the majority, I dissent on its finding that the trial court erred in submitting the issue of punitive damages to the jury. After reviewing the evidence in this case, I believe that there was sufficient evidence to submit this issue to the jury. There is evidence that the railroad breached its duty to keep the right of ways in the area of the accident clear of vegetation, and the railroad was apprised of this problem in safety meetings. While there is testimony that the railroad responded to specific requests to clear vegetation in a certain area, there remains a fact question for the jury as to whether the railroad was guilty of conscious disregard for the clearing of this right of way. See HCA Health Servs. of Midwest, Inc. v. National Bank of Commerce, 294 Ark. 525, 533, 745 S.W.2d 120, 125 (1988).

I concur with the majority’s finding that the trial court erred in submitting the whistle and bell issue to the jury. However, contrary to the majority’s recitation, there was testimony to indicate that train did not sound its whistle the mandated one-quarter of a mile before the train reached the crossing. As this court pointed out in Missouri Pac. R.R. v. Biddle, 293 Ark. 148-A, 737 S.W.2d 625 (1987), the statute mandates that a train blow its whistle or bell one-quarter of a mile before the train reaches the crossing. While there was testimony to show that a fact question existed as to whether the train blew its whistle at the appropriate time, there was no testimony to show that the train failed to sound its bell. Therefore, the trial court erred in instructing the jury on this point.

Steele Hays, Justice,

dissenting. The majority is reversing on two points: one, whether the trial court should have instructed the jury according to AMI 1801 on the duty of a railroad to sound a bell or a whistle in advance of public crossings and, two, whether the trial court should have submitted the issue of punitive damages to the jury. I respectfully disagree with the majority on those issues, though I am in agreement on the remaining points.

The basis for punitive damages, while marginal, was, I believe, sufficient. There was proof that the railroad breached its duty to keep its right-of-way cleared of vegetation so that vision would be unimpaired, and that the problem had been called to the attention of the appropriate railroad personnel. The condition of vegetation along the Van Burén to Paris route was described as “dangerous” by a former railroad employee and there was evidence that this condition was reported to the appropriate officials. The railroad admits it was guilty of gross negligence in this respect. When that proof is given its strongest probative force on review [Dawson v. Fulton, 294 Ark. 624, 745 S.W.2d 617 (1988)] then it follows that the jury could properly find as a fact that the railroad was guilty of a conscious disregard for the safety of the traveling public. National By-Products, Inc. v. Searcy Housemoving Co., Inc., 292 Ark. 491, 731 S.W.2d 194 (1987); Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964).

Turning to the question of the bell, I am convinced that was not a material issue in the trial and I believe it is a mistake to reverse on that basis. Admittedly, the engineer, Larry Paul Cole, testified at one point that he “turned on the bell” about 1400 or 1500 feet before the highway crossing and left it on until he “got by” the crossing. I do not concede, as the majority opinion asserts, that such testimony must be treated as uncontradicted. The jury was not required to believe that testimony and by so holding, the majority disregards much of the evidence from which the jury could fairly infer that no bell was rung. I think the case can be distinguished from Missouri Pacific Railroad Co. v. Biddle, 293 Ark. 148A, 737 S.W.2d 625 (1987), on that basis.

For almost a century this court has recognized the rule that where a witness to a particular fact may have an interest or a bias with respect to the litigation, his or her testimony, even if uncontradicted, is not binding on the jury. In Skillern v. Baker, 82 Ark. 86, 100 S.W. 764 (1907), we said:

It may be said to be the general rule that where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established, and a verdict directed based as on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit, or facts are shown that might bias his testimony or from which an inference may be drawn unfavorable to his testimony or against the fact testified to by him, then the case should go to the jury. (My emphasis. Citations omitted).

Over the years the rule has been followed repeatedly: Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985); Bittle v. Smith, 254 Ark. 123, 591 S.W.2d 815 (1973); Zero Wholesale Gas Co., Inc. v. Stroud, 264 Ark. 27, 571 S.W.2d 741 (1978); Bullock v. Miner, 225 Ark. 897, 286 S.W.2d 328 (1956).

The rule is most frequently applied to parties, but where the witness is shown to have a bias, or circumstances are present which permit an inference against the fact asserted, then the issue should be decided by the jury. Skillern v. Baker, supra. In suits against the railroad where the actions of the engineer are at issue it is obvious that he or she is a partisan witness and plainly interested in the result. In a very real sense it is the actions or inactions of the engineer that are on trial. Certainly that is true in this case.

Furthermore, when the testimony in its entirety is examined, it is clear the trial court did not err in submitting the issue to the jury pursuant to AMI 1801, as the jury could have inferred that neither a bell nor a whistle was sounded for the required distance. Mr. Cole was called by the plaintiff (appellee) and was the first witness. He testified in some detail about his actions as he approached the crossing where the collision occurred. At no time during his examination in chief or cross-examination did he ever mention ringing a bell. Noting that the witnesses appear to use whistle and horn interchangeably, I quote from some of the abstracted portions of his testimony, with significant remarks italicized:

I have seen rule books like the one you are showing me. I believe it says that an engineer approaching a public crossing will give a 20 second horn signal. I don’t really know if they have changed the rule. I do know we are required to sound the horn for 20 seconds or a quarter of a mile. That is what I do. That is a rule I follow.
It is my understanding that the rules require the horn to be sounded for 20 seconds or a quarter of a mile, whichever is longer. The whistle board would indicate where the quarter of a mile starts. On the day the accident happened I blew the whistle for a quarter of a mile. A quarter of a mile is 1,320 feet. I blew the whistle for that distance or maybe even a little longer, but at least a quarter of a mile.
The engine weighs about 262,000 pounds. Before we left Van Burén we made a brake test. I checked the horn, the sanders and the headlights on both ends of the unit to make sure that everything was working. I checked the horns with the long end forward. The horn was a loud horn. All of the horns are loud. On this particular engine the horn was so loud it would make your head hurt. All of the locomotives have the horn situated just above the cab there. The horns are so loud that, when you get off work, you will normally have a slight ringing in your ears.
There is no faster way to stop a train than by putting it into emergency. When you put the train into emergency you open up a large valve which dumps the air from the train line. The reservoirs that are placed on each car push the brake shoes against the wheels as tight as they will go. Then you just sit and ride it out. That’s all you can do except blow the horn.
As I approached the Highway 41 crossing we were going about 30 miles per hour. After we had gone over the highway 22 crossing I started around the curve and I began sounding the whistle. I was keeping an eye out ahead and to the left to see if anything was obscuring my movement, anything on the track or anything that was about to approach the track. The whistle signal I gave as I approached the crossing was two long blasts, a short and then a prolonged blast. When I saw the vehicle approaching the crossing I began making rapid sijprt blasts trying to get his attention. That was in the last two or three second interval right at the end.
I make the kind of signal that the rule book calls for as I approached the crossing. I blew the whistle all the way from a point 1,500 back until I got to the crossing. When I saw Mr. Mackey’s truck I realized he was not going to stop.
I really couldn’t tell whether I was able to slow the train any after I put it into emergency before the collision occurred. I couldn’t say I felt that much difference. We went about 800 feet past the crossing before we were finally able to stop. I believe it was a good stop for this train. Other than looking down the tracks, blowing the whistle, seeing Mr. Mackey and putting it into emergency, there was nothing else I could have done under the circumstances.
I went out there and measured the distance back to where I began blowing the horn. We measured it with a wheel. The Highway 22 crossing is about 12 mile up the road. There is a whistle board in there some place when you are coming back that tells you to start blowing for the Branch (Highway 22) crossing. I did not exactly use that board to start blowing for this crossing. I just know that it is about halfway between those two crossings. I did not measure to the board, I measured to the point where I was when I started blowing the whistle. When I would have seen that board it would have been down in front of me. I am not sure how far but I was down there so much I knew where the crossing was. When you started around the curve you started blowing the whistle.

Not until Mr. Cole had been examined in chief, cross-examined, re-examined and re-cross-examined, did he ever claim to have rung the bell, and even then the intimation is that he was referring to his usual “practice.” Quoting from the record:

[DEFENSE COUNSEL]:
Q: Mr. Cole, do you turn on your bell before you got to the Highway 22 Crossing?
A. Yes, sir.
Q: How long did you leave it on after you turned it on at that point?
A: Okay, as a matter of practice, before reaching, when I know there’s a number of crossings coming up, I turn the bell on and leave it on until I go over the last crossing, and I turned that on before reaching the Highway 22 Crossing, which would be about fourteen, fifteen hundred feet, something in that neighborhood, and I left it on until I got by the 41 Highway Crossing.

Two disinterested witnesses to the accident testified. Both were standing near the crossing and neither of them mentioned a bell. Gerald Don Clayton was called by the plaintiff, Gary White by the defendant. Mr. Clayton was standing on the loading platform of a feed store immediately adjacent to the crossing. He saw the truck coming toward the crossing and “then I heard the train blow its whistle.” He continued:

I saw the truck first. I heard the horn of the train before I saw it. I heard the train and looked up and saw it. It was coming right past the station where you could see it, just into view. There is a large tree there. It would be about 200 feet back to where the train was. The maximum the train could have been when Ifirst heard the horn was 250 to 300 feet.
When I saw the vehicle coming down the road I still had not heard the sound of the horn at that time. As soon as I heard the sound of the train I looked for it. You could tell that it was close when you heard the sound. I could have heard the horn blowing if the horn had been blowing prior to that time. There was nothing that prevented me from hearing a train horn prior to the time I heard it.
I did not have any trouble hearing the train. It was good and loud when I heard it. I am not testifying that the train did not blow its whistle prior to the time I heard it, I just wasn’t paying any attention. It could have been blowing prior to the time I first heard it, but I didn’t hear it.
I said that the train did not start blowing its horn until it got to the diesel pump. Mr. Thompson asked me how much further down the track he would have blown it. It could not have been further down than the station where we have the diesel pumps. It could not have been further than that. If he started blowing it at the diesel pumps I would have heard it, but he didn’t blow it there. He blew it right up by that tree. The diesel pumps are further back toward the west than the big tree. If the horn had been blowing at the diesel pumps I would have heard it for sure and I did not.

Even the witness called by the railroad, Mr. White, made no mention of a bell. This witness, like Mr. Clayton, was standing outside near the diesel pumps, about 150 feet from the crossing.

I did not witness the collision. I saw the train and I saw Mr. Mackey’s truck. I heard the train whistle blow twice, two short toots and a long one. It was a thousand feet or so down the track when I first heard the whistle.
It was 15 or 20 seconds or so from the time Ifirst heard the whistle until the collision occurred. I heard two short toots and a long. I heard it once. I don’t remember whether there were any pauses from the time when I first heard the whistle until the train occupied the crossing. The whistle was good and loud. I did not have any trouble hearing it.

Thus the issue clearly was not the ringing of a bell, but whether the engineer complied with the law by blowing a whistle for one quarter of a mile before reaching the crossing. I submit the trial court was entirely correct to instruct the jury as it did and for the reasons stated I would affirm.

       Record, p. 488.


author: David Newbern, Justice.

text:
    Willie Charles ALLEN v. STATE of Arkansas
    CR 88-175
    760 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered November 21, 1988

      Matt Keil, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Willie Charles Allen, was convicted of aggravated robbery and theft. He contends the identification of him at the trial by the victim should have been suppressed because it was the product of the previous identification at an improperly conducted police lineup. Three arguments are made with respect to the lineup. First, he argues that the lineup was improper because he was denied his right to be taken before a magistrate without unnecessary delay. Second, he contends he was denied his right to counsel when the lineup was conducted, and third, he contends the lineup was so suggestive that his right to due process was violated. While we agree there was unnecessary delay between the time Allen was arrested and his arraignment, we do not find that the lineup was in any way related to or produced by the delay, and thus the delay did not require suppression of the in-court identification. Second, Allen had not been charged when the lineup was conducted, thus his right to counsel had not attached, and third, we disagree with his argument that the lineup was so suggestive as to violate his right to due process. The conviction is thus affirmed.

Melissa Fulce testified that, while she was working alone as the clerk in a Texarkana, Arkansas, convenience store on January 14, 1987, Allen entered the store. He picked up a bottle of soft drink and brought it to the counter where Fulce was working, instead of getting out his money to pay for the drink, he pulled a gun and demanded money. She gave him money from the cash register, and he then told her to take the drawer out. She did so, and he reached in and took some twenty-dollar bills which had been under the drawer. Fulce testified the store was well lighted, and her assailant stood about an arm’s length in front of her. As he left the store he said he was sorry but that he had a sick baby.

On January 16, 1987, Fulce was shown a photo-spread of men who fit the description she had given the police. There were two rows of three pictures each. She picked out Allen whose picture was numbered “3” and was third from the left on the top row. Earlier that day, just after midnight, Allen was arrested for the robbery of a convenience store in Wake Village, Texas. He was caught in Texarkana, Arkansas, driving a vehicle the description and license number of which fit those of a vehicle used in the Texas robbery. At 4:10 p.m. on January 16, 1987, he was arrested on the Arkansas charge. On January 23, 1987, Fulce viewed a live lineup and identified Allen as the man who had robbed the store where she worked. Allen was the third man from the right, holding a placard with a “3” on it. Both identifications were unequivocal, and Fulce testified no suggestions were made to her by police officers who were present.

Allen, who was incarcerated in the Bi-State Criminal Justice Center in Texarkana, was not arraigned on the Arkansas charges until February 27,1987, some 42 days after his initial incarceration resulting from the Texas robbery. Before the trial, Allen moved to suppress the proposed in-court identification of him by Fulce. The motion was based solely on the ground that Allen had been arrested unlawfully. There was no mention of the delay. The court denied the suppression motion. At the trial, Allen objected to the identification of him by Fulce contending first that his Sixth Amendment rights had been violated and, second that the delay in bringing him before a magistrate was unlawful. The motion was overruled, and Fulce, at trial, again positively identified Allen as the man who had committed the robbery.

7. The delay

As the pretrial suppression motion was not based upon the violation of Rule 8.1., we will not consider on appeal the argument that it should have been granted on that basis. Ark. R. Crim. P. 36.21; Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984).

The overruling of the objection to the identification testimony at the trial was also proper. Arkansas R. Crim. P. 8.1. provides: “An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.” The rule is mandatory, but it does not require dismissal of the charges. Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981); Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). See Note, 38 Ark. L. Rev. 842 (1985). If evidence is gained as the result of the proscribed delay, it must be suppressed. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987); Richardson v. State, 283 Ark. 82, 678 S.W.2d 772 (1984). In the Duncan case we wrote that the suppression will occur if there is unnecessary delay, the evidence obtained as a result of the delay is prejudicial, and the evidence is reasonably related to the delay.

Allen was not charged until almost a month after he was positively identified as the culprit, and he was not arraigned until another seven days had passed. The delay in this case was unreasonable on its face, and no attempt was made by the state to explain it. Nor is there any doubt that, if the identification of Allen by Fulce was related to the delay, it prejudiced his case. However, we cannot conclude that the identification was in any way influenced or contributed to by the delay. Unlike the situation where an accused gives an inculpatory statement to the police after many days of incarceration without arraignment, Fulce’s testimony identifying Allen had nothing to do with the delay.

The only other argument Allen makes with respect to the delay is that his incarceration prevented him from obtaining alibi witnesses. This argument was made for the first time in Allen’s motion for a new trial. The decision whether to grant a new trial in a criminal case lies within the discretion of the trial judge. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987); Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). We know of no case which entitles an accused to relief under Rule 8.1. on the ground that the accused was unable to obtain evidence in his favor. Cf Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978), where we said the failure to abide by the rule would be considered in determining whether there was prejudicial prosecutorial delay. Given the failure to raise the question earlier, and the likelihood that raising it in a timely manner would have been to no avail, we find no abuse of discretion in the trial court’s refusal to grant a new trial.

2. Right to counsel at the lineup

At the time the lineup was conducted, formal charges in the Arkansas robbery had not been lodged against Allen. There is no right to counsel at a lineup unless charges have been filed. Moore v. Illinois, 434 U.S. 220 (1977); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988).

3. Suggestiveness of the lineup

in Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987), we set out the requirements for holding that a police conducted lineup was so suggestive that it would require suppression of subsequent identifications. We held that we would not reverse unless the trial court’s decision was clearly erroneous, citing Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). The only allegation made here is that Allen was given the same number in the lineup as had been next to his name in the photospread where he was first unhesitatingly identified by Fulce. The decision was not clearly erroneous.

Affirmed.


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    Michael Dale BOWDEN v. STATE of Arkansas
    CR 88-46
    761 S.W.2d 148
    Supreme Court of Arkansas
    Opinion delivered December 5, 1988

      Gardner, Putman & Miner, by: Buford Gardner and John Putman, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Michael Dale Bowden, was convicted of capital murder and sentenced to life imprisonment without parole. For reversal, he argues that the trial court erred in (1) admitting identification testimony into evidence; (2) finding there was probable cause for arrest; (3) ruling that a child witness was competent to testify; (4) refusing to allow the defense to play a tape to question the credibility of a child witness; (5) allowing testimony from an expert witness regarding an experiment he conducted; and (6) admitting into evidence testimony regarding statements not furnished in discovery. Inasmuch as the court erred in two respects, we reverse and remand for a new trial.

At 1:55 a.m. on April 19, 1987, Gary Keeter, a Harrison police officer, went to the home of Johnny Hefley in response to a call that there was a disturbance there. Upon the officer’s arrival, a man from across the street told him that he had “a little boy over at his home who says his mom and dad is bleeding.” Upon entering Hefley’s residence, Keeter saw the bleeding bodies of Johnny Hefley and Cindy Bowden, Hefley’s former wife. In addition, Keeter saw a number of nine millimeter shell casings lying on the floor.

Other officers arrived on the scene a few minutes later. According to Officer Glen Redding, the police were able to make the following factual observations at this point: (1) the victims were shot to death; (2) neither victim appeared to be armed; (3) there was no forced entry into the residence; (4) in light of the location of the bodies (Hefley’s was slumped over in a chair; Bowden’s was on the floor beside Hefley’s.), what they were wearing, and the fact that there were no signs of forced entry, Hefley and Bowden apparently knew their murderer.

Upon being advised that Hefley’s and Bowden’s five-year-old son, John David Hefley, was across the street at a neighbor’s residence, Officer David Cone spoke with him. John David told the officer that he had been in his bedroom and heard what he thought was a fight between his mother and father and that he got out of bed, walked into the living room, and found his mother and dad lying on the floor. The officer then asked him if anyone else had been there that night. John David replied, “Michael Bowden from Texas.”

Officers at the scene also talked with Michael James, who lived two houses down from the Hefleys’ home. According to James, as he was driving up to his house earlier that night around 1:30 a.m., he noticed a late 70’s dark blue Ford pickup truck parked on the street in front of the Hefleys’ home. A few minutes later, while he was at his home, James heard a loud metallic banging noise and a female voice “trying to get them to stop.” In all, he heard seven or eight of these noises. Immediately thereafter, he heard a car door slam and gravel spin out from under the tires. He then looked out of his window and saw the pickup which had been parked in front of the Hefleys’ residence leaving the scene rapidly. As the truck turned the corner, he heard something sliding across its bed.

After learning that Michael Bowden had been in the house that night, the police immediately attempted to gain information about him. Relatives of Cindy Bowden informed the police that Michael Bowden was Cindy Bowden’s husband and that two weeks prior to the murders, she had left him in Waxahachie, Texas, where they were living, and returned to Harrison to live with her former husband, Johnny Hefley.

Carl Bowden, Michael’s brother, informed the police that Michael was driving Carl’s tan or cream-colored 1979 Ford pickup truck and that the bed of the truck contained plastic milk crates.

Christine Franz, Michael and Cindy Bowden’s daughter, informed police that Michael had contacted her twice on April 18,1987, in an attempt to contact Cindy Bowden. In addition, the police talked to Cindy’s mother, who told them that Cindy was afraid of Michael because he had recently found out that Cindy was living with Johnny Hefley.

At 9:00 a.m. on April 19, Rondall Campbell told police that seven days prior to the murders, while he was at Hefley’s residence, Cindy Bowden had a telephone conversation with Michael Bowden’s sister, Kathleen Bowden Harless. According to Campbell, Harless told Cindy that Michael was suicidal. In addition, he told police that Cindy informed him that she believed Harless had made threatening calls to her the day before.

In talking with the Waxahachie, Texas, police, the Harrison police learned that Michael Bowden previously had been convicted of a homicide that involved the breakup of a marriage.

On April 19,1987, the Waxahachie police issued a warrant for Michael Bowden’s arrest, and at approximately 1:30 p.m., they arrested him at Carl Bowden’s home in Waxahachie.

On April 22, the police brought Bowden back to Arkansas. Upon arrival at the Harrison police station, he invoked his right to counsel.

On April 23,1987, an information was filed against Bowden. On the same day, police officers, in attempt to obtain additional evidence that Bowden had been in Arkansas on the night of the murders, showed two pictures of Bowden to Joe Williams, an attendant at a service station in Conway, Arkansas, and asked him if he had seen the individual in the pictures. Williams replied that he had not. The police then showed him a driver’s license picture of Bowden depicting him with glasses. Williams told police he had seen the individual in the picture on April 19 between 2:00 and 3:00 a.m. Williams also told police that Bowden was driving an older light colored truck and gave the police a detailed description of him.

On April 24, Bowden was arraigned. Public Defender John Nichols appeared at the arraignment as Bowden’s counsel.

On the morning of April 27, the police advised Bowden that a lineup would be conducted later in the day. According to Officer Glen Redding, he asked Bowden if he had an attorney he would like to contact prior to the lineup, and Bowden advised him that he or his brother had been in contact with Buford Gardner and that he anticipated Mr. Gardner being hired as his attorney. In addition, Redding informed Bowden that John Nichols would be present at the lineup.

Redding then transported Bowden from the sheriffs office to the police department, where the lineup was to be held. Upon arrival at the police station, Redding contacted both Nichols and Gardner. Gardner stated he did not represent Bowden and would not attend the lineup. Nichols indicated he did not believe he could represent Bowden because of his lack of experience. According to Redding, he then informed Bowden that neither would be present, and Bowden did not thereafter request an attorney.

Bowden’s account is somewhat different. According to Bowden, Redding told him that he had the right to an attorney at the lineup but never asked him if he wanted an attorney present. In addition, Bowden asserts that after they arrived at the police station, Redding told him that John Nichols was on the way over and just before the lineup, Redding told him that Nichols was there.

The lineup was then held without counsel being present, and Joe Williams positively identified Bowden as the man he saw at the service station on the night of the murders.

I. IDENTIFICATION TESTIMONY.

Bowden argues that the trial court erred (1) in admitting into evidence testimony by Joe Williams that he identified Bowden in the lineup in that the lineup was conducted without counsel present and (2) in allowing identification testimony at trial by Williams that during the early morning hours of April 19, 1987, Michael Bowden stopped at a service station in Conway where Williams was working in that this evidence was tainted by the illegal lineup procedure. We conclude that the trial court erred in allowing Williams’ testimony regarding the lineup and reverse and remand for a new trial.

Bowden clearly had the right to counsel at the post-information lineup absent a knowing and intelligent waiver. United States v. Wade, 388 U.S. 218 (1967); Loane v. State, 271 Ark. 797, 611 S.W.2d 190 (1981); Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970). The burden is upon the State to show that an accused’s waiver of his constitutional right to counsel at a lineup was given voluntarily, knowingly, and intelligently. Loane, supra. The determination of whether there has been an intelligent waiver of right to counsel depends upon the particular facts and circumstances of the case, including the background, experience and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458 (1930). A trial court’s ruling on waiver of counsel will not be set aside unless clearly erroneous. Loane, supra.

We conclude from the facts and circumstances before us that Bowden did not knowingly relinquish or abandon his right to counsel at the lineup. There was testimony by Redding that after he informed Bowden that counsel would not be present, Bowden did not request an attorney. However, he was not asked if he chose to proceed [See Loane, supra], but simply placed in the lineup. In sum, the State did not meet its burden of showing an intelligent and voluntary waiver by Bowden of his right to counsel.

The presence of counsel at a lineup serves not only to allow an informed challenge to be made to identification testimony at trial in order to diminish the weight given to it by the jury, but also to minimize the likelihood of an unduly suggestive confrontation. Wade, supra; United States v. Allen, 408 F.2d 1287 (D.C. 1969). As Wade recognizes, “[t]he trial which may determine the accused’s fate may well not be in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that’s the man.’ ”

Since the police denied Bowden his sixth amendment right to counsel at the lineup, any testimony concerning the lineup identification by Joe Williams was, therefore, inadmissible at trial. Gilbert v. California, 388 U.S. 263 (1967). See Wade, supra. Because the trial court allowed his testimony, we reverse on this point.

Since we are remanding this case, we will address the issue of the admissibility of the in-court identification testimony of Joe Williams, as well as other issues which are likely to arise on retrial.

We first note that ordinarily we would remand this case to the trial court so that it could conduct a pretrial hearing to determine whether the in-court identification was tainted by the improper lineup identification. Burnett v. State, 295 Ark. 401, 411, 749 S.W.2d 308 (1988). See also Wright v. State, 258 Ark. 651, 528 S.W.2d 905 (1975). However, this procedure is not required (1) when we can ascertain from the record whether the in-court identification was tainted and therefore should be suppressed or (2) when the trial court considered this issue. See Burnett, supra. See also Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978).

Under the circumstances, we find it unnecessary to remand to the trial court for this determination in that (1) the trial court ruled that the in-court identification was based upon Joe Williams’ independent recollection, not upon the previous lineup and (2) we can ascertain from the record whether the in-court identification was tainted by the lineup identification.

We do not reverse a trial court’s ruling on the admissibility of an in-court identification unless, under the totality of circumstances, it is clearly erroneous. Banks v. State, 283 Ark. 284, 676 S.W.2d 459 (1984); Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).

Notwithstanding the fact that counsel was improperly denied at a lineup, a witness who identified the accused at the lineup may identify the accused at trial provided the prosecution can establish by clear and convincing evidence that the in-court identification was based upon independent observations of the suspect rather than on the constitutionally infirm lineup identification. Wade, supra. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Montgomery v. State, 251 Ark. 645, 473 S.W.2d 885 (1971).

Reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98 (1977); Banks, supra; Whitt v. State, 281 Ark. 466, 664 S.W.2d 876 (1984). See also Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988). In determining reliability, we examine the following factors: (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 lineup, (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 lineup identification. Wade, supra; Manson, supra; Maulding, supra; Banks, supra.

We turn, then, to the facts of this case and apply the applicable analysis:

1. Opportunity to observe. When Bowden was paying for gas, he talked with Williams for a few minutes and then stood beside the station door for a couple of minutes.
2. Accuracy of description. Bowden’s pre-lineup description was extremely accurate and included Bowden’s height, weight, hair, and the fact he wore glasses.
3. Identification of another person. Williams did not identify any other person prior to the lineup.
4. Level of certainty. Williams was positive in his identification of Bowden.
5. Failure to identify. There was no failure to identify on an occasion prior to the lineup.
6. Time between the alleged act and the lineup identification. Approximately eight days elapsed between the time that Williams observed Bowden and the lineup identification.

In examining the totality of the circumstances, we cannot say that the trial court’s admission of the in-court identification was clearly erroneous. The evidence is clear and convincing that the in-court identification was based on observations independent of the lineup identification. Wade, supra.

II. OTHER ISSUES ON REMAND.

A. ADMISSIBILITY OF THE FRUIT OF BOWDEN’S ARREST.

Bowden contends that the trial court erred in finding there was probable cause to arrest him and therefore in admitting into evidence tainted fruit of the illegal arrest: custodial statements he made to police; photographs of him that were obtained at the time of arrest; fingerprint samples; and the in-court identification by Joe Williams. We disagree.

Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that a crime has been committed by the person suspected. Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986). Probable cause to arrest does not require the quantum of proof sufficient to sustain a conviction. Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). Determination of probable cause is said to be based upon factual and practical considerations of everyday life upon which ordinary men, not legal technicians, act. Hines, supra. A non-technical approach correctly balances the competing interests of the individual and society, so that law enforcement officers will not be unduly hampered, nor law abiding citizens left to the mercy of overzealous police officers. Id. In making the determination of probable cause, we are liberal rather than strict, Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976), and the appellant has the burden of demonstrating that the trial court’s finding that the arrest was legal is incorrect. Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987).

The Harrison police knew the following facts prior to arresting Bowden:

(1) The circumstances surrounding the victims’ homicides indicated that they knew their murderer.
(2) According to John David Hefley, Michael Bowden was at the Hefleys’ residence on the night of the murders.
(3) According to Carl Bowden, on the night of the murders, Michael was driving Carl Bowden’s 1979 Ford pickup, the bed of which contained milk crates.
(4) On the night of the murders, a neighbor, Michael James, spotted a late 70’s Ford pickup parked in front of the Hefleys’ residence. A short time later, he heard some loud banging noises and a female voice “trying to get them to stop.” The pickup then sped away. As it turned the corner, James heard something sliding around in the bed of the truck.
(5) Christine Franz related information that Michael Bowden tried to contact Cindy Bowden on the day of the murders.
(6) Cindy Bowden’s mother claimed Cindy was afraid of Michael Bowden because he had recently found out Cindy was living with Johnny Hefley.
(7) According to Rondall Campbell, Cindy Bowden told him she believed that Michael Bowden’s sister had made threatening calls to her seven or eight days prior to the homicides.
(8) Michael Bowden previously had been convicted of a homicide that involved the breakup of a marriage.

We conclude that these facts and circumstances are sufficient to establish probable cause to arrest Bowden. Therefore, the trial court did not err in admitting the fruit of the arrest.

B. COMPETENCY OF A CHILD WITNESS.

Bowden argues that the trial court erred in ruling that John David Hefley was competent to testify. We disagree.

The guidelines established by this court with respect to competency of a witness enunciated in Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), are:

[t]he ability to understand the obligation of an oath and to comprehend the obligation imposed by it; an understanding of the consequences of false swearing; and the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt or heard [quoting Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982)].

“As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember and relate facts, we will not hold that there has been a manifest abuse of discretion in allowing the testimony.” Jackson, supra; Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982), cert. denied, 460 U.S. 1022 (1983).

John David’s testimony at the competency hearing was not a model of lucidity. It contained inconsistencies, non-verbal responses, and long pauses. As to the obligation of the oath and the consequences of false swearing, he indicated (1) that he knew how important it was to tell the truth and he could do so if called upon to testify again; (2) that he might get into trouble or go to jail if he did not tell the truth or if he lied; and (3) that the truth is telling just what he knew or just what he saw and not making up a story.

In addition, throughout his testimony he showed an ability to recall and give accurate impressions of reality. He knew that his parents died at his house, that his Easter basket contained a football, and that he lived with Michael Bowden in Texas.

Giving due regard to the trial court’s superior ability to observe John David Hefley testify, we conclude that it did not abuse its wide discretion in ruling John David was competent to testify.

C. ADMISSIBILITY OF A TAPE RECORDING.

Bowden argues that the trial court erred in not allowing the defense to introduce into evidence a tape recording of the competency hearing to show that John David Hefley was coached between the hearing and the trial. We hold to the contrary since Hefley admitted that he had been coached.

The extent of coaching of a witness is a relevant inquiry to test the credibility of a witness. See Geder v. United States, 425 U.S. 80, 89 (1976). That a witness had been coached is a fact that may indicate bias. John E.B. Myers, Child Witness Law and Practice, § 4.57 (1987). The bias of a witness is not a collateral matter, and extrinsic evidence is admissible thereon. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). If a witness denies or does not fully admit the facts claimed to show bias, the attacker has a right to prove these facts by extrinsic evidence. McCormick Handbook of the Law of Evidence, § 40 (3rd ed. 1984).

John David Hefley’s testimony at the competency hearing differed from that at trial. The defense established on cross-examination that he practiced with or was coached by the prosecutor between the competency hearing and trial. Subsequently, defense counsel asked the court to allow him to play the tape of John David’s testimony at the competency hearing for the jury to show that he was coached. The trial court denied this request.

Inasmuch as John David admitted he was coached by the prosecution, it was within the trial court’s wide discretion to decide whether the defense could introduce extrinsic evidence to show the extent of bias. We find no abuse of discretion.

D. TESTIMONY REGARDING EXPERIMENT.

Bowden contends that the trial court erred for three reasons in allowing the testimony from an expert witness for the State, Mike Vowell, regarding a photographic experiment he conducted: (1) Vowell’s testimony as an expert witness invaded the province of the jury; (2) the prosecution did not lay a proper foundation that he was qualified to testify in the area of lighting; and (3) the prosecution did not lay a proper foundation for the introduction of evidence concerning the experiment because it did not show that the experiment as conducted under substantially identical conditions and circumstances to those existing in the case. We hold to the contrary.

At trial, the State called Michael James who testified, among other things, that as he was returning to his home on the morning of April 19,1987, he saw a late 70’s Ford parked in front of the Hefleys’ residence. When asked on direct examination his recollection of the description of the pickup truck, he stated:

Well, it was dark on the street. They don’t have a street light or didn’t at that time have a street light on that corner. As I came up around Tammy’s car, I saw it straight head-on, you know, by the grill and everything. It was a late 70’s Ford. I could tell you that, you know, by the grill and everything. I used to have a Ford. As I went beside it, I had the distinct impression it was dark blue. . . .

Mr. James also testified that shortly after arriving at the home, he heard seven or eight metallic banging noises. He then heard a vehicle door slam and looked out of his window and saw the pickup truck speeding away.

At trial, it was established that Michael Bowden was driving a tan or cream-colored 1979 Ford pickup on the night of the murders.

The State then called Vowell, a photographer with the Arkansas Crime Lab, as its next witness. Prior to Vowell’s testimony, the prosecution advised the court:

At my request he went up the scene of the crime and he photographed the crime scene under lighting situations that existed on the night of April 19. It will reflect how a truck would appear on that darkened street under those circumstances.

Vowell first testified (1) that he has been the chief photographer with the Arkansas Crime Laboratory since 1982 and that he does microscopic, infra red, and ultra violet work; (2) that he was trained in surveillance photography from 1970 to 1980; and (3) that he owned a photographic studio for three years.

Defense counsel objected at this point on the grounds that the State had failed to lay a proper foundation that Vowell was qualified to testify in the area of lighting. The court overruled the objection. Thereafter, Vowell testified (1) that his assignment was to photograph a vehicle in low light conditions at night; (2) that he obtained a light colored Ford pickup and a light yellow piece of metal approximately three feet by two feet; and (3) that he photographed these items in front of the Hefleys’ residence at night using only the available street light.

Next, the prosecution asked Vowell to identify three photographs he took of the truck. Defense counsel objected on the basis that the State had failed to lay a proper foundation that the experiment was conducted under the same circumstances that existed on the night of April 19. The trial court overruled the objection.

Vowell then testified (1) that the color of the truck he photographed and the color of the truck driven by Michael Bowden were slightly different; (2) that he took the photographs on the street where the officers told him that Bowden’s vehicle had been seen; and (3) that he took the photographs at about 10:00 o’clock at night under heavy overcast skies with one street light approximately one block away.

After Vowell described the photographs, the prosecution introduced them into evidence over defense counsel’s objection. Thereafter, Vowell testified (1) that the photographs were a fair and accurate representation of the scene as it appeared on that night and (2) that if headlights hit the vehicle head on, it would appear to be the true color of the vehicle.

Finally, on cross-examination, he testified (1) that he was forty feet away from the pickup truck when he photographed it, (2) that he did not know exactly where the truck was located on the night of the murder, and (3) that he did not photograph the truck under headlights.

Bowden first argues that the trial court erred in allowing Vowell to testify as an expert because his testimony invaded the province of the jury. We disagree.

The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or determining a fact issue. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the trier of fact’s ability to understand and draw its own conclusions. Id. See Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987).

Since the average juror would not know the effect low lighting produces on a tan truck, Vowell’s testimony thereon aided the jury in understanding this question. Therefore, Vowell’s testimony did not invade the province of the jury and was admissible.

Bowden also argues that the trial court erred in allowing Vowell to testify because he was not properly qualified to testify as an expert in the area of lighting. We again disagree.

The determination of the qualifications of an expert witness lies within the sound discretion of the trial court, and his decision will not be reversed absent an abuse of discretion. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986). Robinson v. State, 274 Ark. 312, 624 S.W.2d 435 (1981). The standard for measuring the qualifications of an expert witness is flexible, and if some reasonable basis exists from which it can be said that the witness has knowledge of the subject beyond that of persons of ordinary knowledge, his testimony is admissible. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).

Vowell’s testimony concerning his extensive experience in photography was sufficient to qualify him as an expert in the area of lighting. As a photographer, his knowledge of lighting is markedly beyond that of an ordinary person. We find no abuse in discretion.

Finally, Bowden argues that the trial court erred in allowing testimony regarding the experiment and photographs of it in that prosecution did not show that Vowell conducted the experiment under substantially identical conditions and circumstances to those existing in the case. We hold to the contrary.

The admissibility of demonstrative evidence is in the wide discretion of the trial judge. Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982). When a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the original occurrence. Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983).

Vowell did not take the photographs in question in exactly the same conditions as on the night of the murder. For one thing, the photographs were not taken with headlights shining on to the truck. However, substantial similarity is all that is required.

Vowell took the photographs of the truck at essentially the same location, the same time, and under the same lighting conditions as that on the night of the murder. Under the circumstances, we find that the trial court did not abuse its discretion in admitting into evidence testimony regarding this experiment or the photographs of it.

E. STATEMENTS NOT FURNISHED IN DISCOVERY.

We agree with Bowden that the trial court erred in allowing testimony regarding statements not furnished in discovery.

On May 4,1987, almost four months prior to trial, Bowden filed a motion for discovery in which he requested, among other things, that the prosecuting attorney disclose “any written or recorded statements and the entire substance of any oral statements made by the defendant.” On June 26,1987, the State filed its response listing only statements made to law enforcement officers. Subsequently, Bowden’s counsel made oral requests for the disclosure of statements allegedly made by Bowden.

At trial the State called Shirley Duncan, Cindy Bowden’s mother, to testify concerning the substance of a telephone conversation she had with Michael Bowden prior to the murders. The following exchange then took place:

PROSECUTOR: Now, during that period of time, did you hear from Michael?
MS. DUNCAN: I heard from Michael; he called me.
PROSECUTOR: What was his call? What did he say?
MS. DUNCAN: He said, I brought your babies back. I said, I know.
PROSECUTOR: And then what did he say?
MS. DUNCAN: We talked. He wanted to know if I knew why Cindy came home. I told him I didn’t know, that I had tried to get her to stay and she wouldn’t.
PROSECUTOR: When you said you didn’t know, was that the truth?
MS. DUNCAN: No, it wasn’t the truth.

At this point, defendant’s counsel objected, and the following discussion occurred at the bench:

MR. GARDNER [defense counsel]: Your honor, I object at this point to any conversation that the witness had with Michael Bowden if she intends to relate testimony regarding statements made by Michael Bowden. I requested from the prosecuting attorney all statements he had or the substance thereof and we have not been furnished with any of this.
PROSECUTOR: The law requires that we furnish statements taken from law enforcement. Furthermore, Mr. Gardner had been furnished this. I furnished him a copy of this lady’s statement as regards this telephone call.
MR. GARDNER: Your Honor, the prosecuting attorney did furnish me with that transcribed copy of the statement taken from Shirley and the only reference I can find in there to any conversation she had with Michael, he said on the phone, “I brought your babies home to you.” That is the only statement.
PROSECUTOR: I submit, Your Honor, we have fully complied with the rules of discovery, if there’s any grounds for objection.
THE COURT: Objection will be overruled.
MR. GARDNER: Note our exception.

The examination of Ms. Duncan regarding the telephone conversation continued as follows:

PROSECUTOR: Now, what did he say? You know, he was asking you for information about why Cindy had left him or come back to Harrison?
MS. DUNCAN: He did.
PROSECUTOR: Now, in addition to that, did he tell you anything about Cindy or about their relationship?
MS. DUNCAN: He gave me a message to give to Cindy.
PROSECUTOR: What was the message?
MS. DUNCAN: He said, well, she’s in Arkansas, Harrison, Arkansas, and I’m in Texas and we’re still married. I intend to conduct myself as a married man and I expect her to conduct herself as if she’s married.
PROSECUTOR: How did he say that?
MS. DUNCAN: Emphatic; it was to the point.

The next witness called to testify for the State was Steve Duncan, Cindy Bowden’s father. Defense counsel objected to Duncan’s testifying as to any statements made by Bowden to Duncan not furnished in discovery. The trial court denied this objection, essentially finding the State did not have a duty to disclose statements by an accused to private citizens. Mr. Duncan then testified that prior to the murders, Michael Bowden told him that he had an eight or nine millimeter automatic pistol with a left handed ejection. His testimony was also crucial inasmuch as nine millimeter shell casings were found at the scene of the crime.

Rule 17.1(a)(ii) provides as follows: “the prosecuting attorney shall disclose to defense counsel, upon timely request, . . . any written or recorded statements and the substance of any oral statements made by the defendant or a co-defendant.” The plain language of this Rule does not limit the discovery obligation of the State solely to statements made to the police or other authorities. To the contrary, it provides that upon timely request, the prosecution must disclose any written or recorded statement and the substance of any oral statement made by the defendant. Our cases are in accord. See Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Parker v. State, 292 Ark. 421, 432, 731 S.W.2d 756 (1987).

The State clearly breached its duty to provide statements made by Bowden to the Duncans. On remand we direct the State to strictly comply with all discovery obligations.

Reversed and remanded.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I disagree with the majority that the appellant has demonstrated error in the trial proceedings that requires reversal of this conviction. The majority concludes that “since the police denied Bowden his Sixth Amendment right to counsel at the lineup, any testimony concerning the lineup identification by Joe Williams was, therefore, inadmissible at trial,” citing United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 23 (1967). But it is undisputed that the police told appellant that he had a right to have counsel present and they even exerted considerable efforts of their own to obtain counsel, contacting both the public defender (who represented appellant at arraignment), and twice contacting counsel who represented appellant at trial, all to no avail. Moreover, at no time did appellant invoke his right to be represented at the lineup by requesting counsel or by objecting to a lineup being conducted.

The majority is holding that on remand Joe Williams can identify the appellant as the man he saw in his service station in Conway, Arkansas, in the early morning hours after the murders of Cindy Bowden and John Hefty, but he may not testify to having identified him in a lineup. I respectfully suggest that the majority is drawing a distinction that makes little sense. I do not propose that on remand the witness should be permitted to testify that he identified the appellant from a lineup. That, I believe, is of little moment either way. What is important is whether the witness can point to the accused in the courtroom and tell the jury that is the individual he saw at such and such a time and place. Since the majority concedes it was not error for Joe Williams to do that, it seems appropriate to ask, why is the case being reversed? We do not reverse cases for another trial on abstract principles, but on prejudicial errors that affect the outcome of the trial. See Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985); Davies v. State, 286 Ark. 9, 688 S.W.2d 738 (1985); McFarland and Soest v. State, 284 Ark. 533, 684 S.W.2d 233 (1985); and Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).I submit that if the witness can properly identify the appellant as the man he saw in his service station, it is wholly abstract on this record, to hold that the case must be reversed because he also testified appellant is the man he saw in a lineup.

Appellant, like the majority, cites Moore v. Illinois, 434 U.S. 220 (1977); United States v. Wade, 388 U.S. 218 (1967); and Gilbert v. California, 388 U.S. 263 (1967). Those cases do not hold that a breach of an accused’s right to have counsel at a lineup prevents a witness from so testifying, provided the evidence clearly shows the identification was based on the witness’s contact with the accused and not suggested by the lineup. Even in the latter instance, if the error can be declared harmless beyond a reasonable doubt the case should not be reversed. LaFave and Israel, Criminal Procedure § 7.3(f) (1984). Neither the appellant nor the majority examine the issue from the standpoint of harmless error. Where the evidence of guilt is convincing, even constitutional errors may be cured if it can be said beyond a reasonable doubt the error is harmless. Harrington v. California, 395 U.S. 250 (1969). Here, the two victims were murdered by someone with whom they were acquainted; there was no evidence of robbery or burglary as a motive; John David Hefley, aged 5, identified the appellant as being in the home of the victims at the time of the murders. Appellant’s thumb print was found on a coffee cup in the room with the victims. Appellant was seen in Conway, Arkansas by Joe Williams between two or three o’clock after the murders. Appellant was shown to have been driving a 1970 pickup with milk cartons in the back and a truck matching that description was seen leaving the house soon after sounds like shots were fired. The truck sped away and objects in the truck bed were heard to slide from one side of the truck to the other. I believe that proof, balanced against the asserted error, justifies a determination that the error complained of was harmless.