text:
    John Elliott GRUZEN v. STATE of Arkansas
    CR 81-84
    634 S.W.2d 92
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982
    [Rehearing denied June 28, 1982.]

      Lessenberry & Carpenter, by: Thomas M. Carpenter; and Frank G. Shaw, for appellant.

      Steve Clark, Atty. Gen., by; Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, John Elliott Gruzen, was convicted of capital felony murder in connection with the kidnapping and death of 12-year-old Dana Mize of Vilonia, Arkansas. Appellant’s original conviction on this charge was reversed in Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). On retrial, after the State waived the death penalty, appellant was given the same sentence, life imprisonment without parole. On appeal, we affirm.

The evidence at trial established that appellant, who lived in New Jersey, flew to Little Rock on April 8, 1976. That same day he rented a silver Chevelle, license number CWB 507, from Hertz Rent A Car. He then checked into the Alamo Plaza Motel in Little Rock, where he stayed several days. During this time he obtained a gun from the Square Deal Pawn Shop in North Little Rock.

On April 12 he drove to Conway and checked into the Kings Inn. The next day, as he was checking out, he asked the motel clerk where Vilonia was. The clerk gave him directions. This occurred between 3:30 and 4:00 p.m. Between 5:00 and 5:30 p.m., Randy Shannon, who lived on the Vilonia highway, saw appellant in a gray Chevrolet in front of his house, talking to the victim. She was standing beside the car. Shannon thought she was giving him directions because he noticed her pointing toward her house.

Ravel Lloyd, another Vilonia resident, testified that she also saw a man driving a gray car talking to the victim close to the Shannon residence at approximately the same time. She then saw the man open the car door, pull the victim into the car, and take off at a high speed. About 7:00 p.m. that evening the victim’s family realized she was missing and began an unsuccessful search for her.

At about 2:00 p.m. on April 14 Gruzen bought a ticket for Newark, New Jersey from an Oklahoma City Amtrak ticket agent. He then turned in the rented car at the airport and returned to the train station barely in time to catch a 6:10 p.m. train.

At about 10:00 a.m. on April 16 the victim’s body was discovered in a small pond outside of Vilonia. The body was taken out of the pond around 2:00 p.m. and an autopsy was performed that afternoon at 4:30 p.m. Pathologists testified that drowning was the cause of death, although the body was bruised and scratched. They both testified that it was impossible to pinpoint the exact time of death. One estimated that she had been dead 24 hours, plus or minus eight to ten hours, and the other estimated that she had been dead 36 hours, a little more or a little less.

Various items were confiscated in a search of appellant’s home in New Jersey including receipts from the trip to Arkansas, the gun which had been bought in North Little Rock and three rolls of film. The film was developed and one of the pictures was of a “Toad Suck Ferry” sign, a sign located about a mile and a half from the pond where the victim was found.

Appellant’s rented car was swept and vacuumed by a criminal investigator, who found several hairs. An FBI special agent compared these hairs to a hair taken from the victim and testified that the hairs matched in all 15 of the characteristics used in comparing hair.

After viewing this evidence in the light most favorable to the State, we conclude that there was substantial evidence to support the jury’s finding of guilt.

I

Appellant first argues that the charge of capital felony murder should have been reduced to murder in the first degree because in the first trial the jury determined that no aggravating circumstances existed. This issue was considered and rejected in Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981). There, we stated:

Aggravating circumstances are not an element of capital murder as defined in Ark. Stat. Ann. § 41-1501, and the presence of aggravating circumstances is not necessary to support a conviction under that section.

We see no reason to depart from this ruling. Aggravating circumstances are not even to be considered where, as here, the State has waived the death penalty. Ark. Stat. Ann. § 41-1301 (3) (Repl. 1977).

II

By pretrial motion, which was denied, appellant asked that he be granted a bifurcated trial on the issue of guilt as to commission of the acts alleged and the issue of guilt by reason of mental disease or defect (insanity). Appellant wanted a jury determination of guilt of commission, first, and then, if he was found guilty, wanted the jury to determine his guilt based on his affirmative defense of mental disease or defect pursuant to Ark. Stat. Ann. § 41-601 (1) (Repl. 1977), which provides:

(1) It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.

Appellant argues that raising the defense of insanity forces him to admit his guilt of commission of the acts alleged and, thereby, violates the privilege against self-incrimination.

The State is not relieved of the burden of proving beyond a reasonable doubt each element of the offense charged merely because a defendant has raised the affirmative defense of mental disease or defect under Ark. Stat. Ann. § 41-601 (1). To this extent this statute does not presuppose an admission of the act in question. See Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979). For this reason appellant’s privilege against self-incrimination has not been violated.

Appellant is not entitled to a bifurcated trial on the issues of guilt as to commission and guilt by reason of insanity because our Rules of Criminal Procedure do not provide for such a trial. Absent a constitutional infirmity in our procedure, appellant is not entitled to have these issues determined separately.

In any event, appellant is unable to show prejudice from the ruling of the trial court on this issue because appellant never raised the affirmative defense of mental disease or defect as permitted by statute. Appellant waived the adverse ruling on his motion for a bifurcated trial by failing to raise this defense.

Ill

Appellant argues that the trial court erred in allowing a State policeman to give his opinion as a lay person as to when the victim died. The policeman testified that he had been in criminal investigation work for eleven and a half years and had observed bodies that had been in the water for short periods of time as well as for a few days. He was then asked his opinion, based on his observation and experience, as to whether this victim’s body had been in the water “a few days, a short time or a long time.” Before he was allowed to answer, defense counsel was permitted to show, through a voir dire of the witness, that he had almost no scientific knowledge about determining time of death. The court then instructed the jury:

THE COURT: Ladies and gentlemen of the jury, let me admonish you that you have heard the qualifications of the witness; you’ve heard the testimony of his experience and the fact that he was there on the scene. I’m going to allow him to express his opinion, and it is for you to determine what that opinion might be worth.

The witness then stated that in his opinion the victim had been in the pond several days.

Rule 701, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) provides:

Rule 701. Opinion testimony by lay witnesses. —If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Here, the witness’s opinion was rationally based on his perception of the victim’s body when it was removed from the water and on his past experience with drowned persons as a police investigator. In light of the fact that the judge gave the jury a cautionary instruction and the fact that both pathologists testified that determining time of death is not an exact science, we cannot say the judge erred in allowing this opinion.

IV

Appellant argues that the trial court erred in permitting the testimony of Ravel Lloyd, which was given at appellant’s first trial, to be read into evidence at the second trial. At a hearing on this issue Lloyd’s physician testified that Lloyd suffered from hallucinations and schizophrenia and was not capable of testifying. The trial judge then ruled that her previous testimony could be read into evidence under Rule 804, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), which provides:

Rule 804. Hearsay exceptions — Declarant unavailable. — (a) Definition of Unavailability. ‘Unavailability as a witness’ includes situations in which the declarant:
(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. . . .

Appellant questions the finding that Lloyd was unavailable as a witness because of mental infirmity, arguing that only a psychologist or psychiatrist should be allowed to give such testimony. We disagree.

A licensed physician who has known and treated a patient for ten years, as here, can testify as to whether that person is mentally competent to be a witness. The doctor in this case, who had been practicing for 22 years, testified that Lloyd had become mentally unstable in the last year. It was not error for the trial court to find that Lloyd was unavailable as a witness without a psychiatrist’s opinion.

Appellant further argues that the testimony should not have been admitted because appellant was mentally incapable of assisting his attorney during the first trial when the testimony was given. Appellant concludes that the use of the testimony at the second trial violated the confrontation clause of the Sixth Amendment and denied him the opportunity to develop the cross-examination of the witness as required in Rule 804 (b) (1), supra. However, appellant has not demonstrated how a cross-examination with appellant’s assistance would differ from a cross-examination conducted without appellant’s assistance. The party alleging error is required to demonstrate that prejudice did in fact exist. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

V

Appellant argues that the trial court erred in not allowing him to read to the jury the statement of a key witness for the State, Randy Shannon. The prosecuting attorney had been ordered to furnish appellant the witness’s statement pursuant to Ark. Stat. Ann. § 43-2011.3 (b) (Repl. 1977):

(b) After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the state to produce any statement (as hereinafter defined) of the witness in the possession of the state which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

After direct examination appellant obtained all of the witness’s statements except one, which was not in the file. The next day appellant reviewed the State’s file and found the missing statement. Appellant did not make an objection at that time; instead, he waited until the next day after both parties had rested to apprise the trial judge that the statute had been violated.

Ark. Stat. Ann. § 43-2011.3 (d) sets out the remedies for a violation of § 43-2011.3 (b):

(d) If the state elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.

Appellant did not ask that the testimony be stricken or that a mistrial be declared; instead, he made a motion that the statement be read to the jury.

We held in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) that an issue must be presented to the trial court in a timely and appropriate manner. Here, both sides had rested, and appellant had known of the error for a day before he informed the trial judge and requested corrective action. Under these circumstances we cannot say that the trial judge erred in not allowing the statement to be read to the jury.

VI

Appellant argues that the trial court should have declared a mistrial because of certain statements made by the prosecutor during closing arguments. One such statement was that Gruzen chose to drive to Oklahoma City and take a train back to New Jersey rather than fly because he could not take a gun through an airport security system. We have held that a prosecutor is free to argue any inference reasonably and legitimately deducible from the evidence. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980). Here, there was evidence indicating that Gruzen flew to Little Rock and bought a gun; this same gun was found at his home in New Jersey. The prosecutor’s statement concerning why appellant chose to ride a train home is a reasonable inference deducible from this evidence and thereby permissible.

Appellant also objects to the prosecutor’s statement that he and his deputy prosecutor were new to the case and only had a short time to work on it as opposed to the five years defense had had. Although this statement was improper, the judge removed any possible prejudice by immediately admonishing the jury that what is said in closing arguments is not evidence.

The third statement that appellant objects to is the prosecutor telling the jury that the whole matter began as a result of a captain of a New Jersey county law office receiving a "confidential memorandum” which caused him to call North Little Rock to see if a little girl had been killed. At trial the captain was asked how he became involved. A bench conference followed. Counsel for both sides then agreed that the captain would not relate anything about any conversations; he would just tell that he got some information. The captain then testified that he "received some information from [another] captain of detectives [in his office] . . . inquiring about a young female that was killed someplace down in Arkansas.” There can be no doubt that the jury knew from this testimony that the investigation began in New Jersey as a result of information the captain had received. The fact that the prosecutor argued to the jury that the captain received a "confidential memorandum” rather than merely “some information” is not error under the circumstances.

Appellant also argues reversible error was committed when the prosecutor questioned why the defense "had to go all the way to Fayetteville to find a pathologist to testify when 90 percent. . . are in Little Rock where he lives” and then told the jury that "... if you look hard enough ... you can find someone to agree with you.” While we do not condone these remarks, we cannot say that they constituted reversible error, particularly since the judge gave a cautionary instruction to the jury. The trial judge has a broad latitude for discretion in controlling the arguments of counsel and will not be reversed unless there is manifest gross abuse of that discretion. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). We cannot find abuse of discretion in the trial court’s ruling on this issue.

We have also examined the record for all other legal errors, as is our practice in cases of like punishment, and finding none prejudicial, affirm the conviction and punishment.

Affirmed.


source: Caselaw Access Project

author: George Rose Smith, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    James D. CARROLL and Darrell Mack COX v. STATE of Arkansas
    CR 82-37
    634 S.W.2d 99
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982
    [Rehearing denied June 28, 1982.]

      Lessenberry if Carpenter, for appellants.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

At about three o’clock on the morning of January 19,1981, the appellants Carroll and Cox, truck drivers, drove a large tractor-trailer rig onto the scales of a state weigh-station near Hope. On that particular night shift the station was being manned by Charles Caldwell, a state employee with five years’ experience at his job. Caldwell’s examination of the bill of lading and other documents submitted to him by Carroll disclosed various discrepancies and omissions that led within an hour or so to an inspection of the contents of the trailer by three administrative officers. The trailer was found to contain not less than 248 large bales of marihuana, having a street value of well over a million dollars. This appeal results from a jury trial at which both defendants were found guilty of possession of marihuana with intent to deliver. Carroll was sentenced to ten years’ imprisonment; each defendant was fined the maximum of $10,000. The Court of Appeals certified the case to us as presenting an issue of statutory construction. Rule 29 (1) (c).

The three points for reversal question the validity of the inspection of the trailer, the extent to which the prosecution was permitted to cross-examine Carroll at a suppression hearing, and the trial court’s ruling that a proffered defense witness was not qualified to testify as a handwriting expert.

First, the validity of the inspection. The Motor Carrier Act of 1955, Act 597, provides that common and contract carriers by motor vehicle, both interstate and intrastate, must be licensed by the Arkansas Transportation Commission. Ark. Stat. Ann. §§ 73-1754 etseq. (Repl. 1979). The Act imposes the duty of policing compliance with the statute upon enforcement officers, who have the authority to make arrests. § 73-1760 (c). This language of the statute provides specifically for the inspection of the contents of vehicles reasonably believed by the enforcement officers to be operating in violation of the Act:

Such enforcement officers upon reasonable belief that any motor vehicle is being operated in violation of any provisions of this Act, shall be authorized to require the driver thereof to stop and exhibit the registration certificate issued for such vehicle, to submit to such enforcement officer for inspection any and all bills of lading, waybills, invoices or other evidences of the character of the lading being transported in such vehicle and to permit such officer to inspect the contents of such vehicle for the purpose of comparing same with bills of lading, waybills, invoices or other evidence of ownership or of transportation for compensation. [§ 73-1760 (c).]

The proof shows overwhelmingly that the enforcement officers had grounds for a “reasonable belief” that the appellants’ rig was being operated in violation of the act. At the weigh-station Carroll submitted as his authority for driving the rig a lease from Maislin Transport of Delaware, but the lease was for a Kenworth tractor instead of the White tractor the defendants were driving. Their log books were not current, for which Carroll was placed under arrest. (The other appellant, Cox, fled soon after the vehicle was stopped and was later picked up by the police at a motel in Hope.) The bill of lading produced by Carroll was handwritten instead of the usual typing, indicated that the shipment originated in Michigan (Carroll testified at the suppression hearing that he picked up the load in . Houston) but gave only a street address for the consignee, with no city being named, did not describe the commodity being carried except as “50 pieces 12x100,” and contained other defects that led Caldwell to radio for assistance from another state employee, Richard Birtcher, who arrived within ten minutes. He in turn called in a third enforcement officer, George Hamilton, who was patrolling in the vicinity. Birtcher believed, we think correctly, that he had the authority under the statute to inspect the contents of the trailer. Carroll professed not to know what was in the trailer and did not have a key to the lock on its doors; so the officers cut the lock and discovered the marihuana. We find no basis for questioning the validity of a routine inspection that turned up an unsuspected but huge quantity of drugs.

Defense counsel make no attack upon the inspection as such, but they elect instead to treat the examination of the trailer as a “search” for which a search warrant is required. No authority is cited for the implication that officers must obtain a search warrant for a routine inspection of a vehicle which they reasonably believe to be operated in violation of the Motor Carrier Act. That act is not essentially a criminal law. Its violations are punishable either by civil penalties or by fines for misdemeanors only. § 73-1775. Officer Birtcher testified: “The attorney keeps referring to a search. I never one time stated to this driver that I was going to search his truck; I was merely making a regular, routine transportation inspection of the vehicle.”

Even if a search had been involved, two of the three officers testified that Carroll gave permission for the inspection and said he did not care if they cut the lock (his testimony being that he did not know what the contents were). The third officer, Birtcher, was in the scale-house office when the permission was given, but he explained: “I don’t recall it. I was in the same area. I was either in the kitchen getting a cup of coffee, at the scales, or on the phone or something.” The proof is convincingly clear that Carroll consented to the inspection, or to the search if it be so regarded. Finally, Carroll was not placed under arrest for having a spurious bill of lading (which he admits he had) until the inspection had revealed the contents of the trailer. Thus the inspection accomplished its proper administrative purpose. That a criminal prosecution resulted does not vitiate the procedure or invalidate the statute.

Second, Uniform Evidence Rule 104 provides that an accused, by testifying about a preliminary matter, does not subject himself to cross-examination as to other issues in the case. At the hearing on a motion to suppress evidence about the discovery of the marihuana, Carroll testified on direct examination that he did not know the trailer contained any marihuana and thought it contained a load of plastic (even though he had picked up the locked trailer in Houston rather than in Michigan, as the spurious bill of lading recited). On cross-examination the prosecutor questioned Carroll about his knowledge of governing regulations and similar matters going to his awareness and credibility. Defense counsel objected to question after question, as not being pertinent to the motion to suppress. The credibility of the witness, however, was pertinent. Moreover, neither in the brief nor in the oral argument before this court have counsel pinpointed even one solitary fact that was improperly brought out by the cross-examination. In view of the total want of any showing of prejudice, the argument that the cross-examination so tainted the case that it should be reversed and dismissed does not warrant serious discussion.

Third, the trial judge ruled that a proffered defense witness, John Scott, was not qualified as a handwriting expert (to testify, according to a proffer of proof made after the jury had begun its deliberations, that neither defendant had filled in the spurious bill of lading). We have often held that the determination of an expert witness’s qualifications lies largely within the discretion of the trial court and have sustained the trial judge’s rejection of a proffered expert who “was unable to cite any training or experience that clearly qualified him as an expert with respect to the question at issue.” United States Fidelity & Guaranty Co. v. Smith, 252 Ark. 556, 480 S.W.2d 129 (1972). The same reasoning is applicable here.

Scott, a resident of Cherokee Village, said he had lived in Arkansas for eleven years. Asked about his occupation, he answered: “I am a certified graphoanalyst, which in common terms is a handwriting expert.” He had taken a correspondence course from the International Graphoanalysis Society of Chicago, which had certified him. His training consisted of studying the various mechanics of handwriting, the slant, unusual markings in the strokes, pressure brought to bear on the paper, and other basics that make up handwriting. In his twelve years of alleged experience “in questioned document work” he had testified as an expert only once, in Clinton, Iowa, and had “worked with” law enforcement officers in two Arkansas counties, but the cases did not come to trial. He had written “daily columns for our weekly newspaper” and had taught short courses on graphoanalysis. He was not a member of the Academy of Forensic Science.

The term “graphoanalysis” was apparently coined by the international society, because it is not to be found in Webster’s Second or Third New International Dictionaries, the Random House Dictionary, the American Heritage Dictionary, Webster’s New World Dictionary, or West’s Words & Phrases. Scott indicated that graphoanalysis is an aspect of graphology, the original form of handwriting analysis, “which borders on the occult,” but “graphoanalysis is much more scientific.” He never did say, however, just what graphoanalysis is. Graphology, which is the study of handwriting as it reveals character and personality traits, is examined at length in the article on handwriting in the Encyclopaedia Britannica (1965). According to that article, graphology is based on the study of the mechanics of handwriting (which Scott studied in his correspondence course). It is intended primarily to relate handwriting to personality traits, but some of its advocates have also used it to predict and diagnose liver and heart disease, cancer, accident proneness, numerous psychiatric categories, and tuberculosis. The article concludes: “The question of the ultimate scientific value of graphology is unanswered.” The Britannica also mentions graphology under Fortunetelling.

Our point is simply that there is nothing in the article on graphology and very little in Scott’s discussion of graphoanalysis to indicate that either has any connection with comparing handwritings to determine authenticity. Scott did testify that he had read books on forensic document work, but his practical training and experience in that field have not, as we said in U. S. F. & G., supra, “clearly qualified him as an expert” to testify about the authenticity of a questioned document.

Apart from Scott’s lack of qualifications to give expert testimony, the question whether either Carroll or Cox filled in the bill of lading is not of any real importance in the case. Neither is charged with forgery. Carroll freely admitted that the bill of lading was spurious, a fact not open to the slightest doubt. Who made it out is not a critical issue. Thus the third point for reversal is primarily of academic interest only.

. The case for the jury was simple. A routine administrative inspection of the defendants’ cargo revealed it to include a huge quantity of marihuana, a contraband drug, concealed by surrounding cartons of plastic. Carroll insisted all along that he knew nothing about the million-dollar cargo that had been entrusted to him in Houston by a Mr. Rivera, otherwise unidentified. The defendants put the State to its burden of proving guilt, as they were at liberty to do. After a fair trial the jury resolved the only real issue of fact, whether the defendants knowingly possessed the marihuana. The sufficiency of the evidence to support the verdict is not questioned.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Neither the Arkansas General Assembly nor the Supreme Court of Arkansas has the power to invalidate the 4th and the 14th Amendments to the Constitution of the United States of America. The majority opinion, it seems to me, has attempted to either annul or circumvent the provisions of those Amendments. The court cannot contravene the United States Constitution through the use of misnomers. That is precisely what the majority opinion has attempted to do by substituting the word “inspection” for “search.” A rose by any other name smells the same.

The locked cargo trailer, a part of an 18 wheeled rig, was parked alongside the highway and a number of law enforcement officers were present and in total control of the situation. There is absolutely no reason why these officers could not have obtained a search warrant for the cargo trailer, even if they had to wait a few hours. The cargo was secured and in the safe keeping of the officers and the driver had already been arrested and placed in custody. The actual reason for failing to obtain a search warrant pursuant to the 4th Amendment to the Constitution was summed up by the transportation officer’s statement that they had authority under the Arkansas Motor Carrier Act, Ark. Stat. Ann. § 73-1754 et seq. (Repl. 1979), to search the cargo compartment. It is one of our most fundamental principles of government that a state statute cannot override the Constitution. If the officers had probable cause to believe the cargo trailer contained contraband then a search warrant was required before cutting the lock from the container compartment. Richard Birtcher stated, as he was breaking the lock from the cargo container, that he “didn’t have any idea what was inside the sealed unit.”

The answer to the Constitutional question is clearly resolved in Article 6 section 2 of the Constitution of the United States which states:

This Constitution, and the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.

The above quoted language from the Constitution needs no further explanation in relation to the facts in the case before us. Today we authorized the breaking into a person’s sealed trailer without benefit of a search warrant. Tomorrow we may authorize breaking off a lock from the front door of a citizen’s home if it is suspected he has contraband therein.

The majority opinion relating to the qualifications of John Scott is most amusing. They boldly assert that John Scott was not an expert, indicating in the process that there is no particular value to the art of graphology. Yet, the majority opinion clearly sets out enough qualifications and credentials to indicate that John Scott was qualified to testify as an expert. It is my opinion that John Scott’s testimony should have been admitted pursuant to Uniform Rules of Evidence, Rule 702. His testimony could have been tested by the state pursuant to Rule 703.

I still believe in a strict construction of the Constitution of the United States and submit that the search and seizure as conducted in this case clearly violated the 4th Amendment.


author: Frank Holt, Justice.

text:
    John P. HVASTA v. Jerry M. McGOUGH
    82-48
    633 S.W.2d 31
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Stephen Choate, for appellant.

      Boyett, Morgan if Millar, P.A., by: James “Red” Morgan, for appellee.
   Frank Holt, Justice.

The appellee sued the appellant for alienation of the affections of his former wife, Carolyn. The appellee and Carolyn had been married seventeen years and had three minor children. The appellant and Carolyn began a clandestine affair which lasted about two years when the appellee discovered Carolyn’s and appellant’s relationship. The appellee and Carolyn attempted a reconciliation and after about nine months, appellee secured a divorce. The court, sitting as a jury by agreement of the parties, awarded appellee $15,000 damages and dismissed appellant’s counterclaim for damages allegedly resulting from appellee’s threats and harassment. Appellant first contends for reversal that the trial court erred in not granting him a directed verdict inasmuch as the evidence failed to prove the alienation of affections.

In a suit for alienation of affections, the burden is on the plaintiff to show direct interference on the part of defendant and that not only was there infatuation of husband or wife for defendant but that the defendant, by wrongful act, was the cause of it; and the plaintiff must show a wrongful attempt on the part of the defendant to alienate the affections of plaintiff’s husband or wife, and also that such an attempt was successful and without the consent of the plaintiff. Hardy v. Raines, 228 Ark. 648, 310 S.W.2d 494 (1958); Hammond v. Peden, 224 Ark. 1053, 278 S.W.2d 96 (1955); Roach v. Scott, 157 Ark. 152, 247 S.W. 1037 (1923); and 41 Am. Jur. 2d Husband and Wife § 466. The gist of an action for alienation of affection is the loss of consortium which includes the spouse’s society, companionship, love, affection, and aid. Gibson v. Gibson, 244 Ark. 327, 424 S.W.2d 871 (1968).

Carolyn testified that appellant’s business was located in the same building where she was employed. Shortly after they became acquainted their affair began. The appellant gave her much attention, sent her flowers, bought her gifts consisting of several items of jewelry and clothing, took her to dinner at nice restaurants, and treated her “like a queen.” During this two year period, they had sexual relations about once a month and sometimes spent the night in motels. They talked of marriage. The appellant told Carolyn he loved her and wished they could get married. Appellant suggested a lawyer she could see for a divorce. She stated the gifts provided by the appellant diminished her love for her husband, the appellee. She believed she would have left him for the appellant had she known her children would be taken care of. In the back of her mind she expected a marrige out of the relationship with the appellant. She was in love with the appellant and would have married him. If it had not been for her relationship with the appellant, she and the appellee would still be married. Before meeting the appellant, she and the appellee had enjoyed a normal married relationship. When the appellee discovered her infidelity, there was a very brief separation after which she returned to their home for a period of approximately nine months. She reaffirmed her love for the appellee. There was no resumption of her affair with the appellant. She and the appellee attempted a reconciliation which included counseling. This was unsuccessful and appellee secured a divorce from her because he was unable to forget the trauma of the past events. Carolyn has since remarried someone else.

The appellee testified that during the period his wife was having an affair she was not affectionate towards him and there “wasn’t much of any” “sexual life” between them. During their attempted reconciliation they sought counseling. It did not help him since he was unable to forgive her. He secured a divorce.

The appellant denied he ever spoke in terms of endearment to Carolyn, that he ever talked of marriage or that he gave her any reason to feel that he wished a continuing relationship or anything more than a night in a motel room. The only gifts he had ever given her were those similar to ones he had given his secretary, other employees or friends. He never suggested she leave her husband.

Appellant argues that the attempted reconciliation of Carolyn and appellee, along with their testimony that during this time they still professed their love for one another indicates that, the wife’s affections were not alienated from her husband, but rather the husband’s affections were alienated as he was unable to cope with the emotional trauma created by the affair. In Gibson v. Gibson, supra, we said: “The law presumes that there is always a possibility of reconciliation of husband and wife and this the law encourages.” The evidence plainly shows the appellant, by his actions, sought to win the favor of Carolyn. He knew she was married to appellee and that they had children. Carolyn testified that during their meretricious affair her love for her husband, the appellee, diminished, she and appellant discussed marriage, he suggested a lawyer to her for a divorce, and she was in love with appellant and would have married him. Before meeting appellant, she had experienced a seventeen year normal marriage with appellee, they were the parents of three minor children, and she would still be married to the appellee except for her relationship with appellant. The findings of a trial court, sitting as a jury, shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 52, ARCP Ark. Stat. Ann. Vol. 3A (Repl. 1979). Taylor v. Richardson Const. Co., 266 Ark. 447, 585 S.W.2d 934 (1979). Here, we certainly cannot say that the trial court’s findings were clearly erroneous.

Appellant next contends that the trial court’s award of $15,000 is not supported by the evidence and therefore is excessive. We cannot agree. In Hammond v. Peden, supra, the jury returned a verdict in favor of appellee and awarded him $25,000 for damages as a result of appellant’s actions in alienating the affections of appellee’s wife. There we said that since “the evidence was sufficient to sustain a judgment in some amount in favor of appellee, we know of no established rule by which to weigh in dollars and cents the value to appellee of the loss of the companionship, love, and affection of his wife and children.’’See also Weber v. Weber, 113 Ark. 471, 169 S.W. 318 (1914); Alexander v. Johnson, 182 Ark. 270, 31 S.W.2d 304 (1930); and Hardy v. Raines, supra. Here, it appears that the acts of the appellant were instrumental in the destruction of a reasonably normal marriage of seventeen years and the parental relationship of three minor children. Therefore, we cannot say the evidence is legally insufficient to support the finding of damages by the trial court.

Affirmed.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    SUN GAS LIQUIDS COMPANY v. THE HELENA NATIONAL BANK
    81-250
    633 S.W.2d 38
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Friday, Eldredge ir Clark, by: Richard D. Taylor, for appellant.

      Mike J. Etoch, Jr., for appellee.
   Darrell Hickman, Justice.

This is an appeal from an order denying a motion to set aside a default judgment. Based on the issues raised to the trial court, we affirm its findings.

The Helena National Bank obtained a judgment against Harold Snell, an employee of the Sun Gas Liquids Company. The Bank issued several writs of garnishment against Sun Gas and they were answered and paid. But one issued on October 15, 1980, and served on October 20th, was not answered by Sun Gas. The Bank obtained a default judgment against the company for $1,932.41. Sun Gas sought to set aside the default on only two grounds: Excusable neglect by Mrs. Dorothy Browning, Senior Secretary at the West Memphis office of Sun Gas where the writ of garnishment was served, and the fact that the garnishment notice was not served on Sun Gas’s registered agent for service in Little Rock. The Bank relied on the writ of garnishment itself which showed that it was served on Mr. Donald Weis, Agent for Service, at West Memphis, and the fact that it was, indeed, served on him. The Bank argued that Ark. Stat. Ann. § 27-347 (Repl. 1979) permitted service on a corporate agent at a branch office and Weis was that agent. Sun Gas argued that that statute was superseded by ARCP Rule 4.

The trial court held that Rule 4 had not superseded Ark. Stat. Ann. § 27-347 and, therefore, service was valid.

There was no testimony offered to the trial court, only a motion by Sun Gas to set aside the default judgment and an affidavit by Mrs. Browning to the effect that she had mailed the notice of garnishment to the home office in Pennsylvania and was only told later that it never arrived.

Of course, Mrs. Browning’s affidavit does not amount to excusable neglect. See ARCP Rule 55 (c); Perry v. Bale Chevrolet Co., 263 Ark. 552, 566 S.W.2d 150 (1978); Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501 (1959). And we agree with the trial court that ARCP Rule 4 did not supersede Ark. Stat. Ann. § 27-347. In our Per Curiam of December 18,1978, we set out the statutes that had been superseded by the Rules of Civil Procedure and this statute is not one of them.

Sun Gas argues on appeal that Weis was not an agent, servant, or employee of a branch office as defined by the statute. But that argument was not made below and no evidence was offered to the trial court on that issue. Sun Gas also argued that the writ of garnishment form does not give notice that judgment will be entered if it is not answered. See DeSoto, Inc. v. Crow, 257 Ark. 882, 520 S.W.2d 307 (1975). Neither was this argument made to the trial court. The dissent suggests that the branch office was in Crittenden County and the service was from Phillips County, and that the statute only contemplated service in the same county that issued the summons. None of these arguments were raised to the trial court and we have consistently held that we will not consider issues raised for the first time on appeal. We do not have the plain error rule. Wilson v. Lester Hurst Nursery, 269 Ark. 19, 598 S.W.2d 407 (1980); City of Fort Smith v. Moore, 269 Ark. 617, 599 S.W.2d 750 (1980).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent from the majority opinion for the reasons suggested by Justice Hickman in the majority opinion. Ark. Stat. Ann. § 27-347 (Repl. 1979) states:

Any and all foreign and domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business shall be subject to suits in any of the courts in any of said counties where said corporation so keeps or maintains such office or place of business, and service of summons or other process of law from any of the said courts held in said counties upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporations and shall be sufficient to give jurisdiction to any of the courts of this State held in the counties where said service of summons or other process of law is had upon said agent, servant or employee of said corporations.

It is obvious in reading the above statute that the authorization for service upon an agent or employee of any corporation applies only when the suit is brought in the county where the agent or employee is physically located. Therefore, service under the above statute is not proper.

I also agree with the appellant’s contention that the writ of garnishment was null and void for failure to include the allegations and interrogatories. In DeSoto, Inc. v. Crow, 257 Ark. 882, 520 S.W.2d 307 (1975), we held that for a writ of garnishment to be valid it must give notice that failure to answer could result in a judgment against the garnishee. This was pursuant to Ark. Stat. Ann. § 29-107 (Repl. 1962). I would, therefore, reverse the trial court and dismiss the suit as to the appellant.


author: Darrell Hickman, Justice.

text:
    Norma Hicks LOWERY v. Pat KELLEBREW
    82-25
    633 S.W.2d 40
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Griffin, Rainwater if Draper, for appellant.

      Holloway if Bridewell, for appellee.
   Darrell Hickman, Justice.

Pat Kellebrew was awarded $25,000 in this slip and fall case. The only thing unusual is that Pat Kellebrew, the appellee, filed suit against his daughter, Norma Hicks Lowery, the appellant. Otherwise, it is a simple case of whether the jury chose to believe Mr. Kellebrew’s evidence.

Kellebrew, age 70, testified that on January 26,1976, his daughter called him to move a motorcycle from her carport. In doing so he slipped and fell on the concrete carport and injured himself. He said that he was knocked unconscious and when he came to in a few moments his pants had grease or oil on them. His medical expenses totalled over $3,000.

Kellebrew’s sons went to Mrs. Lowery’s house to help move their father. They both testified that Kellebrew’s feet were lying in an oil spot in the carport, and that the oil spot had been there at least several days. James Kellebrew testified that the spot was about three feet in circumference.

Mr. Kellebrew said that before the accident he had done carpentry work, painting, and farm work, and made up to $4,000 a year doing so. He said that that was the amount he was allowed to earn and still receive his social security benefits. He testified that he was not able to work after he was injured because of severe pain in his back and legs.

The two issues raised are whether there was substantial evidence to support the jury’s verdict and whether there was sufficient evidence to support an instruction of loss of working time. In both instances it is a question of the credibility of the witnesses. The jury chose to believe Pat Kellebrew and his sons. The appellee made a prima facie case of slip and fall which the appellant failed to overcome. Safeway Stores Inc. v. Waddy, 253 Ark. 473, 486 S.W.2d 683 (1972); Weingarten, Inc. v. Thompson, 251 Ark. 914, 475 S.W.2d 697 (1972).

Affirmed.


text:
    Johnny SCROGGINS v. STATE of Arkansas
    CR 81-131
    633 S.W.2d 33
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Garner Taylor, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Johnny Scroggins was arrested without a warrant for two counts of aggravated robbery at his motel room in Fort Smith, Arkansas. He was registered under the name of Johnny Smith. Scroggins’ codefendant, Earl Maxwell, was with him in the motel room and apparently registered under the name of Danny Maxwell. Scroggins was convicted of two charges of aggravated robbery and sentenced to eighty-three years.

The two main issues before the trial court were whether the arrest was legal; and, if not, did that taint and make inadmissible a subsequent confession of Scroggins’. The trial court ruled for the State on those two issues. We disagree and reverse on both questions.

Scroggins and Maxwell were reported to have robbed two people that Scroggins personally knew in the early morning hours of November 1, 1980. Immediately after the robbery one of the victims, George Yonkers, reported it to the police. He knew Scroggins only as “Johnny,” airiend of one of his neighbors. The neighbor, Clifta Corley, was acquainted with both Scroggins and Maxwell. They were also charged with robbing her.

Detective Mike Brooks testified that on November 3, 1980, he went to the prosecuting attorney’s office to obtain a warrant for the arrest of Scroggins and Maxwell for the aggravated robbery of Yonkers and Corley. He signed an affidavit and it was dated the third of November. Brooks told two other detectives, Officers Tate and Davis, who were working the night shift, that he had obtained a warrant that morning for Scroggins’ and Maxwell’s arrests. Actually he had only signed an affidavit; the warrants had not been issued.

The two detectives decided that they would try to locate the pair that evening. Davis testified that when they left the station they had been told warrants were issued and that eyewitnesses had identified Scroggins and Maxwell as the robbers. (Tate was later killed in the line of duty and did not testify at the trial.) Davis said he also knew that there was an outstanding warrant against Scroggins for third degree battery but he did not have that warrant with him either. Such a warrant did exist and was dated September 18.

\ Working that night on a hunch the officers discovered that a Johnny Smith and Danny Maxwell had registered at the Holiday Motel, but had checked out. A girl friend of Maxwell’s had called the bus station asking for Maxwell and left a number to be called at the Holiday Motel. Checking another motel in the vicinity, the Englander, the officers discovered that a Johnny Smith and Danny Maxwell were registered there using identical addresses to those at the Holiday Motel. Officer Davis did not know that Scroggins was registered as Johnny Smith when he approached the room. Davis said that he and Tate knocked on the door and informed the occupants that they were police officers. Scroggins, whom Tate recognized, came to the door. One officer drew his pistol and asked Scroggins to open the door and come out. Scroggins did not resist. Then the officers saw Maxwell in the rear of the room and, with drawn revolvers, ordered him out. He came out. Both were arrested for aggravated robbery and taken to the police station, booked, and jailed. A jacket and two suitcases were seized from the room. Detective Tate questioned Scroggins that night but evidently the questioning stopped when Scroggins indicated he wanted an attorney. The next day at about 11:55 a.m., Officer Brooks took a detailed five page incriminating statement from Scroggins.

It is argued that the statement was inadmissible because it was not voluntarily given and was the product of an illegal arrest. We hold that the arrest was illegal because Scroggins had a fourth amendment right to expect privacy in his motel room. Absent exigent circumstances, Scroggins was not subject to arrest without a warrant, unless he consented to the arrest. The State offered no evidence of exigent circumstances. Instead it chose to argue at trial and on appeal that the officers acted in good faith and that the motel room was not the residence of Scroggins and, therefore, not subject to constitutional protection. At the time of his arrest Scroggins gave his residence as 1701 Fresno, which was not the address of the Englander Motel.

The crucial question is the legal status of the motel room. In the companion cases of Payton v. New York and Riddick v. New York, 445 U.S. 573 (1980), the United States Supreme Court unequivocally held that the fourth amendment as applied to the states through the fourteenth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest absent exigent circumstances. The Court did not extend its ruling to searches or arrests occurring at a third party’s home. Payton v. New York, supra at 583.

The Court has held that the fourth amendment prohibition against warrantless seizures goes to persons as well as property. Davis v. Mississippi, 394 U.S. 721 (1969). Of course it is elementary that the State must prove that a warrantless intrusion, in this case an arrest, was not in violation of the fourth amendment. In Katz v. United States, 389 U.S. 347 (1967), the Court explained that,

. . . searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.

So it is the State’s burden to prove that the motel room in this case was not subject to constitutional protection.

The fourth amendment protects the right one has to expect privacy in various places. While that right extends to one’s home, and to the trunk of an automobile, Sanders v. Arkansas, 442 U.S. 753 (1979), it does not extend to a public place such as a common hallway in an apartment building, U.S. v. Calhoun, 542 F.2d 1094 (9th Cir. 1976), or a parking lot, U.S. v. Cantu, 557 F.2d 1173 (5th Cir. 1977) cert. denied 434 U.S. 1063 (1977).

Two cases of the United States Supreme Court have held that one’s right of privacy in a hotel or motel room is protected by the fourth amendment to the United States Constitution. In Johnson v. United States, 333 U.S. 10 (1947), the Court found that the defendant’s living quarters, which were in a hotel, could not be searched without a warrant absent exigent circumstances. In Stoner v. California, 376 U.S. 483 (1964), a defendant was arrested in a hotel room and the room was searched without either a search warrant or an arrest warrant, and the search was found to be illegal. It was the government’s argument that the hotel clerk consented to the search. The Court said:

No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S. 451, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10. That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. It follows that this search without a warrant was unlawful. Since evidence obtained through the search was admitted at the trial, the judgment must be reversed. Mapp v. Ohio, 367 U.S. 643.

Therefore, it does not matter that a hotel or motel room is not a permanent residence; one registered at a motel or hotel as a guest is protected against unreasonable searches and seizures by the fourth amendment to the United States Constitution. The fact that Scroggins was registered under a false or assumed name would not change the situation because that fact was not used by the State to justify the warrantless arrest and, therefore, in this case becomes irrelevant.

The State offers a parenthetical argument that Scrog-gins consented to leave the room and was actually arrested outside the room and, therefore, no Payton issue exists. The facts demonstrate why this argument is meritless. The officers held a gun on Scroggins and asked him to come out of the room; obviously there could be no free choice on the part of Scroggins in such a situation.

Having decided that the arrest was illegal, and necessarily that the seizure of the suitcases and jacket was illegal, we consider the separate question of the admissibility of Scroggins’ confession. When an in-custody statement is challenged, the State has the burden of proving by a preponderance of evidence that it was voluntarily given. On appeal, we make an independent determination of this issue and affirm the trial court’s ruling unless it is clearly erroneous. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981).

In this case, such a statement must be examined not only to determine if it was voluntary by the fifth amendment standards but also to make certain that the illegal arrest did not taint the statement. In the case of Brown v. Illinois, 422 U.S. 590 (1975), the United States Supreme Court enumerated three factors to be used in determining whether a prior illegal arrest has tainted any incriminating statements made after the arrest: (1) The “temporal proximity between the arrest and the confession, (2) the presence of intervening circumstances, ... (3) the purpose and flagrancy of the official misconduct are all relevant.” The Court noted that merely giving the Miranda warning is not sufficient to remove the taint. The Court held in Wong Sun v. United States, 371 U.S. 471 (1965) that there must be an intervening action of free will between the illegal arrest and the subsequent confession to remove the taint. See Woodard v. State, 273 Ark. 235, 617 S.W.2d 861 (1981), and Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981).

Applying those principles to Scroggins’ confession, we conclude that the State did not meet its double burden. Scroggins testified that he was questioned on the evening of November 3rd by Detective Tate who arrested him, but that he told him he wanted a lawyer and the officer discontinued the questioning. That is not refuted and it is borne out in part by the record. At noon the next day, Detective Brooks, an officer not connected with the arrest, interviewed Scrog-gins and obtained a five page statement. It is undisputed that Scroggins was given his Miranda rights at this time. Officer Brooks had Scroggins’ two suitcases before him when he questioned Scroggins. He asked Scroggins if he could search them. Scroggins admitted during his testimony that he consented to the officer examining the contents of the suitcases at that time, but he explained that Officer Tate had already searched them the night before. The suitcases did contain evidence connecting Scroggins to the robberies in question. Scroggins said he asked Brooks for a lawyer and asked to make a telephone call. Brooks said he did not ask for a lawyer but he could not remember if Scroggins made a telephone call.

Once Scroggins asked for an attorney, as he did when he was first questioned, he could not be interrogated later except at his request. Edwards v. Arizona, 451 U.S. 477 (1981). It appears undisputed that the State initiated the interrogation the next day. Officer Brooks conceded that he did not obtain written consent to search the suitcases when he interrogated Scroggins, although it was departmental policy to do so.

We cannot say the officers acted in good faith. They set out to find these men during their shift without any warrants and offered no evidence of exigent circumstances requiring immediate action. The only real basis to uphold the trial court’s findings would be that Scroggins was given his Miranda warning before the statement was taken. There is no other evidence to support a finding that the State met its burden and removed the taint of the illegal arrest. There was no intervening action of free will to remove the taint.

The other arguments raised on appeal are easily answered. First, it is argued that it was error to allow the State to cross-examine Scroggins regarding his prior convictions because he was charged as an habitual criminal and, thereby, he was forced to prove the convictions, which was the State’s burden. We rejected that same argument in Coleman v. State, 256 Ark. 665, 509 S.W.2d 824 (1974).

He argues that one of his convictions was actually “court probation” and according to our decision in English v. State, 274 Ark. 304, 626 S.W.2d 191 (1981), it was not a conviction that could be used to enhance his sentence pursuant to Ark. Stat. Ann. § 41-1001 (Supp. 1981), the habitual offender statute. Scroggins’ probation was not the type of court probation that we discussed in English. Scroggin’s plea of guilty was entered and accepted and, therefore, no error was committed in allowing this conviction to be considered by the jury.

He argues the evidence is insufficient to support the conviction for aggravated robbery of Clifta Corley. She testified that she knew Scroggins and was awakened that night by Scroggins and Maxwell who wanted money, and at first she thought they were joking. But then she changed her mind when she saw her roommate crying and Scroggins continued to point the gun at her. We find substantial evidence to support this charge of robbery.

Finally, it is argued that Scroggins’ sentence to eighty-three years was excessive. We have repeatedly held that such arguments are meritless. Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982); Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963).

Reversed and remanded.

      Apparently Officer Tate obtained a written consent to search the suitcases the night before on the basis of some agreement between .Scroggins and him as to the other charges.


author: John I. Purtle, Justice.

text:
    John B. DALRYMPLE, Barbara DALRYMPLE, THE BASELINE CORPORATION, THE DALCO CORP., and THE OCLAD CORP. v. Rodney FIELDS, Earlean FIELDS and Gary ROSS
    81-263
    633 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Jones & Petty, for appellants.

      Baim, Baim, Gunti, Mouser ¿r Bryant and Paul D. Capps, for appellees.
   John I. Purtle, Justice.

Appellees, Rodney and Earlean Fields, rented an apartment from Gary Ross who had recently acquired the property from Dalrymple. A fire in the apartment destroyed the Fields’ personal property and they filed suit to recover against Ross. Ross filed a third party complaint against Dalrymple and plaintiffs amended their complaint against Ross to recover punitive damages from Dalrymple. A jury awarded the Fields a judgment for $6,000 compensatory damages and $7,500 in punitive damages. They allocated the negligence of Ross at 15% and Dalrymple at 85%. The jury also awarded Ross $10,000 compensatory damages but no punitive damages against Dalrymple. Dalrymple’s motion for a new trial was denied, and this appeal results.

Appellants argue three points for reversal: (1) the trial court erred in denying appellants’ motion for a directed verdict and for judgment notwithstanding the verdict; (2) the trial court erred in allowing proof of Dalrymple’s financial status; and, (3) the trial court erred in allowing evidence of unrelated violations of the building code and regulations. We agree that there was no evidence to support a verdict for punitive damages and that Dalrymple’s financial status was not properly in issue. Also, we agree that it was error to allow evidence of unrelated building code violations.

There seems to be no serious dispute but that a fire in the Fields’ rented apartment, which was owned by Ross, resulted from defective wiring near a hot water heater which was encased in a crawl space and was unavailable for inspection by the Fields. The Fields were not at home at the time of the fire but upon returning home and discovering the fire Mrs. Fields, who was pregnant, became very upset and ill. Her baby was born slightly premature approximately a month later. There was evidence that she did have ailments and complaints related to the loss of their property in the fire. The suit was filed on October 1, 1979, by the Fields against Ross. They alleged he knew or should have known of the dangerous situation and that he had been notified that some irregularity existed concerning the hot water heater and their high electric bills. They alleged he took no action in regard to the situation. The complaint alleged that Ross breached the warranty of habitability by furnishing an unsafe dwelling place. Ross entered a general denial and filed a third party complaint against Baseline Corporation, Dalco Corporation and Ociad Corporation as well ás John and Barbara Dalrymple. All parties agreed that the foregoing corporations and Dalrymple were one and the same. The complaint by Ross alleged negligence through unworkmanlike construction and improper maintenance and repairs. On February 18,1981, the third party complaint was amended to allege that Dalrymple was guilty of gross and wanton conduct and negligence in complete disregard to the consequences of human safety. It alleged a conscious knowledge on the part of Dalrymple. The Dalrymples entered a general denial. On March 2,1981, the complaint of the Fields was amended to seek punitive as well as compensatory damages. Also, on the same date the Fields filed a complaint against the third party defendant in which they accused him of conduct giving rise to punitive damages.

We first consider whether the trial court erred in denying appellants’ motion for a directed verdict on the issue of punitive damages and for a judgment notwithstanding the verdict on a motion for a new trial. Before punitive damages may be allowed it must be shown that in the absence of proof of malice or willfulness there was a wanton and conscious disregard for the rights and safety of others on the part of the tortfeasor. Tucker v. Scarbrough, 268 Ark. 736, 596 S.W.2d 4 (Ark. App. 1980). We have also quoted with approval prior decisions holding exemplary damages proper where there is an intentional violation of another’s rights to his property. Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). We hold the trial court erred in failing to direct a verdict as to the punitive damage portion of this case.

In viewing the record we do not find any evidence that either Dalrymple or Ross were guilty of activities which would give rise to exemplary damages. The issue in question was well-stated in the case of Hodges v. Smith, 175 Ark. 101, 293 S.W. 1023 (1927), which stated:

... negligence alone, however gross, is not sufficient to justify the award of punitive damages. There must be some element of wantonness or such a conscious indifference to the consequences that malice might be inferred. In other words, in order to warrant a submission of the question of punitive damages, there must be an element of willfulness or such reckless conduct on the part of the defendant as is equivalent thereto.

Appellants also insist that the court erred in allowing the plaintiffs access to Dalrymple’s financial status and allowing it to be presented to the jury. One of our leading cases on this point is Life & Casualty Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966). In Padgett we held that where two or more defendants were sued for punitive damages the plaintiff waived his right to prove the financial condition of any one of them. In the present case the appellees did not originally sue for punitive damages but through a separate pleading at a later date they sought punitive damages against Dalrymple and Ross. We reached the same result in the case of Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960), as well as in Curtis v. Partain, Judge, 272 Ark. 400, 614 S.W.2d 671 (1981). Therefore, itwas error to allow the evidence relating to the financial worth of Dalrymple.

The plaintiffs and Ross presented evidence of several other code and ordinance violations. The ordinances, or the pertinent parts, were treated as having been introduced into evidence. However, a search of the record on appeal indicates that the ordinances or the perinent parts thereof were never introduced into the trial court’s record. We have held as far back as Pugh v. The City of Little Rock, 35 Ark. 75 (1879) that parol evidence is not admissible to prove an ordinance or resolution of a city council. See also Indemnity Ins. Company of North America v. Harrison, 186 Ark. 590, 54 S.W.2d 692 (1932). These alleged violations were such things as lack of fire stops in the attic; no fire wall separating apartments; only one door to the outside from the apartment; an outside staircase and steps constructed of wood. None of these violations, or others presented during the course of the trial, had any bearing on the cause of the fire nor do they rise to that degree of manifest indifference from which malice may be inferred. We think the trial court would have erred by allowing into evidence these independent and unrelated violations even if the code or ordinances had been properly in the record. We held in Myers v. Martin, 168 Ark. 1028, 272 S.W. 856 (1925), that where the issue is one of negligence or non-negligence on the part of a person on a particular occasion, other acts of negligence are not admissible. The appellees state that the evidence of the other violations was eventually submitted to the jury by mutual agreement of all of the parties to this action. Even though the matter was submitted by agreement of all the parties, it was after the court had overruled Balrymple’s objections to the other violations. Also, there had been a motion in limine to prevent the introduction of the other violations which had no connection with the fire. We have held that a motion in limine preserves the objection throughout the trial. Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981).

We note appellees’ objection to appellants’ argument that the issue of substantial evidence was not preserved. However, ARCP Rule 50 (e) quoted by appellees states on its face that the sufficiency of the evidence is preserved when there has been a motion for a j udgment notwithstanding the verdict or a motion for a new trial.

Earlean Fields claimed personal injury as a result of this incident. However, she was not injured by the fire and suffered no direct trauma or anything of that nature. We have consistently held that a claimant’s right to recover for emotional distress and related injuries may be had only upon proof of the existence of willful and wanton wrongdoing on the part of the tortfeasor. M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). Also, AMI 1101 sets out guidelines for conduct which will give rise to punitive damages.

A review of the record indicates that the jury had ample evidence to find the appellants and Ross had breached the warranty of habitability at the Fields’ rented apartment. However, we feel that by introducing evidence of Balrymple’s financial status, the jury may well have been improperly influenced in their allocation of compensatory damages. Therefore, we must remand for a new trial in accordance with this opinion.

Reversed and remanded.


text:
    THE HIP BOOT GANG, INC. v. Richard W. WARRINER, Jr.
    82-26
    633 S.W.2d 365
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Horace Tikes, Jr., for appellant.

      Bairn, Bairn, Gunti, Mouser & Bryant, by: Noel F. Bryant, for appellee.
   John I. Purtle, Justice.

The appellee instituted suit in the Jefferson County Circuit Court in which he sought to be declared the owner of 1500 shares of common stock of The Hip Boot Gang, Inc. The appellant answered and counterclaimed alleging that Warriner was not the owner of the 1500 shares and denied he had any interest in The Hip Boot Gang, Inc. The trial court ruled in favor of the appellee.

The appellant argues two points on appeal. First, that the court erred in ruling that the judgment in a former suit did not affect the legal title of the common stock of said corporation. Second, appellant argues that the court erred in finding that appellee was the record owner of 1500 shares of common stock of appellant.

The facts indicate that The Hip Boot Gang, Inc. was formed by Kent Rinehart, Richard W. Warriner, Jr. and Nelson Langston, Jr., each taking 1500 shares of stock in The Hip Boot Gang, Inc. Subsequently, Warriner agreed to sell Rinehart his stock in the corporation. They entered into a memorandum of agreement whereby Warriner would sell his stock to Rinehart. Five hundred dollars was paid before the agreement was drawn up and subsequently another $500.00 was paid by Rinehart on the installment note. The agreement provided that the seller would retain title of the stock of the corporation until it was paid for in full and allowed the purchaser to vote the stock in corporate matters.

Apparently Rinehart fell behind in his payments and Warriner filed suit No. 79-648-1 to collect on the promissory note which had been given as part of the consideration for the purchase of the stock. Rinehart counterclaimed arguing the note was usurious. He prayed that the debt be cancelled. The trial court agreed and held the transaction usurious and cancelled the indebtedness. No appeal was taken from the judgment between Rinehart and Warriner.

Appellant first argues that the trial court erred in failing to hold that the prior decision in case No. 79-648-1 affected legal title to the stock here in question. In Crump v. Loggains, 212 Ark. 394, 205 S.W.2d 846 (1947), we held:

The judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit.

Likewise, failure of a party to ask for certain relief in the lower court precludes a subsequent demand for such relief absent a timely appeal or retrial of the original case. No appeal was instituted from the prior decision and it cannot now be appealed to this court. The note and indebtedness were cancelled. That was the relief sought and that was the relief granted. The first decision simply did not relieve title to the stock. However, the agreement between the purchaser and seller of the stock specifically mentioned that title to the stock remained in the seller until it was paid for.

Appellants point out that most all of the contracts we have cancelled for usury were situations wherein the purchaser was in possession of the property. However, in the present situation the buyer was not in possession of the property. The cancellation of the debt in the first trial was what it purported to be, a cancellation of the debt. Perhaps title would have been conveyed had demand for such relief been requested of the trial court. Since this matter could have been raised in the first trial between the two stock holders it cannot be raised in the present action. The appellee is still the owner of the 1500 shares of stock. We have held many times that questions within an issue which were settled, or could have been settled, wer eres judicata. See Ozan Lumber Company v. Tidwell, 213 Ark. 751, 212 S.W.2d 349 (1948).

Affirmed.


text:
    Theodis BAKER v. STATE of Arkansas
    CR 81-132
    637 S.W.2d 522
    Supreme Court of Arkansas
    Substituted Opinion on Rehearing delivered July 19, 1982

      William R.Simpson, Jr., Public Defender ¿r Kelly Carithers, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen. by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

We grant a rehearing on the issue of the doctor-patient privilege; and, finding no error was committed, affirm the conviction and sentence of Theodis Baker.

Theodis Baker, while in the Pulaski County jail, was treated for gonorrhea by the jail nurse. The trial court admitted into evidence the simple fact that he had been treated for gonorrhea. In our opinion in Baker v. State (May 24, 1982), we held this was error because Baker had “communicated” this information to the nurse and under Ark. Stat. Ann. § 28-1001, Rule 503 (b) (Repl. 1979), the information was privileged. Nothing Baker said to the nurse was admitted; in fact, she could recall no conversation whatsoever.

Rule 503 replaced Ark. Stat. Ann. § 28-607 (1947), which was a much stricter privilege. It read:

Hereafter no person authorized to practic physic or surgery and no trained nurse shall be compelled to disclose any information which he may have acquired from his patient while attending in a professional character and which information was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse. [Emphasis added.]

That essentially encompasses all conceivable information a physician could have about a patient, and it was so construed. National Benevolent Society v. Barker, 155 Ark. 506, 244 S.W. 720 (1922). But Rule 503 (b) does not grant a privilege to “any information,” only “communications” between the patient and doctor, and confidential ones at that. So Rule 503 is not in essence the same as the former law as we acknowledged in our opinion. It is decidedly different; it protects only confidential communications.

Rule 503 specifically includes psychotherapists and licensed psychologists in the category of “doctor.” Obviously what is told to those doctors is more sensitive than that told to average practitioners. So the real protection is aimed at preventing a doctor from repeating what a patient told him in confidence. But the privilege does not go to treatment and that is all the State offered as evidence. In Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), a psychiatrist alerted police that a crime had been committed and indirectly enabled them to discover the defendant’s identity. We found no breach of the privilege.

It would be privileged information if Baker had told the nurse in confidence who he had sexual intercourse with, but that is not the question before us. The only issue is whether treatment for gonorrhea is privileged information.

There is no element of self-incrimination involved because Baker voluntarily sought the treatment and thereby subjected himself to the privilege, its protection as well as its limitations. See Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).

In our original opinion we construed Rule 503 so that it has exactly the same practical effect as the repealed statute; that is, it protects any information the physician collects regarding a patient by incorrectly characterizing it as communication. The legislature made a significant change by adopting a more sensible rule and on rehearing we recognize that change. The rule not only applies to criminal cases but civil as well. See Ragsdale v. State, 245 Ark. 296, 432 S.W.2d 11 (1968).

Actually there has long been serious opposition to the existence of any such privilege. As McCormick says: “More than a century of experience with the statutes [of the states granting the privilege] has demonstrated that the privilege in the main operates not as a shield of privacy but as the protector of fraud.” McCORMICK’S EVIDENCE § 105 (2d ed. 1972). Wigmore’s criticism is in the same vein: “From asthma to broken ribs, from influenza to tetanus, the facts of the disease are not only disclosable without shame, but are in fact often publicly known and knowable by everyone — by everyone except the appointed investigators of the truth,” which, in this case were the jurors. See VIIIWIGMORE ON EVIDENCE § 2380a (McNaughton rev. 1961).

Since we find the trial court made no error in admitting the evidence, the decision on rehearing is affirmed.

Adkisson, C.J., concurs.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I strongly disagree with the granting of a rehearing and the destruction of the physician-patient privilege. I agree with the majority that the original statute was entirely too broad. It did, in effect, prevent a physician from testifying about any information he had obtained through the doctor-patient relationship. The original rule was justifiably seen as being overly broad. Uniform Rules of Evidence, Rule 503 is a very long and detailed rule. The rule’s first sections define “patient,” “physician” and “psychotherapist.” Then section (4) reads as follows:

A communication is “confidential” if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.

Section (d) sets out the exceptions to the foregoing rule. For example, there is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness or examinations by order of a court or when the condition is claimed as an element of a defense. Therefore, it is plain all privilege relating to criminal matters and institutionalization for mental illness is excluded from the rule. The rule, of course, can be waived by the patient himself.

We really have under consideration here the old statute involving “any information” against the new rule which relates to “confidential communication.” The appellant is the person who requested the treatment in this case. It would have been impossible for him to make a request without communicating in some manner with the party from whom he was requesting treatment. The myopic narrowness with which the majority now views confidential communications in fact destroys the rule in its entirety. If a medical technician is allowed to testify as to the description of the injuries or ailment or disease, even though the patient had requested it to remain confidential, it would in effect present a situation where there could be no “confidential communication.” The situation existing here is one of the most personal types of cases that can be involved in a physician-patient relationship. To allow the state to poke its nose into the privilege existing between the appellant and the person treating him for his condition would render the privilege meaningless. The purpose of the rule is to allow diagnosis and treatment of persons who can be confident that the intimate details of their physical or mental condition are not made public. I cannot see where the abrogation of this rule would enhance either the public interest or the criminal justice system.

The rules were very carefully thought out and were studied over a long period of time and were formulated specifically for the purpose of allowing privileged communications except for instances set out as exceptions in the rule. I feel that the sole reason for allowing in this particular communication was to enhance the state’s probability of conviction. The state never claimed the matter was relevant to the defense of the crime or probative of any issue. This is not the purpose for which the rule was intended, and the state had as good a chance of conviction without this information as with it. I feel the original opinion was absolutely correct and if the present majority opinion prevails, then the rule may as well be stricken from the book. Therefore, I would deny the rehearing.


author: Robert H. Dudley, Justice.

text:
    Barney MAY v. Louis BARG, d/b/a BARG & COMPANY
    82-58
    633 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Davis if Bracey, P.A., by: Charles E. Davis, for appellant.

      Burke if Eldridge, by: John R. Eldridge, HI, for appellee.
   Robert H. Dudley, Justice.

Appellant Barney May and Midwest Steel, Inc. executed a promissory note in the amount of $400,000.00 plus interest to appellee Louis Barg d/b/a Barg & Company. On March 9, 1981, appellee Barg filed suit against Midwest and appellant May alleging joint and several liability for the principal, interest and attorney’s fees. On the next day, March 10, an attorney, who is the agent for service of Midwest, went to the sheriff’s office and accepted service of process for Midwest and appellant May. A deputy sheriff testified that, upon Midwest being sued, the standard practice was to telephone the attorney and he would then come to the sheriff’s office and accept service of process. Apparently Midwest Steel is owned by appellant May but the deputy sheriff did not know whether the attorney normally accepted service of process for individual appellant May. On April 2, 1981, the same attorney filed an answer for Midwest Steel and appellant. April 2 was not “ ... within twenty (20) days after the service ..., ” and the answers were not timely filed. ARCP Rule 12 (a) Ark. Stat. Ann. Vol. 3A (Repl. 1979). Appellee Barg moved to strike the answers. Midwest and appellant responded only that the motion to strike should be denied because of appellee’s failure to file a brief with the motion in accordance with ARCP 78. The validity of service was not questioned by motion. Appellant May filed an amended answer alleging there had been no demand for payment and, in addition, appellant May individually filed a verified counterclaim alleging that appellee had wrongfully converted his property. Appellee subsequently filed a motion to strike and appellant did not file a responsive pleading. The trial court granted the motion to strike the answers, amended answer and counterclaim. The case was later tried on the issue of the amount of liability and the court entered judgment in the amount of $457,217.55. Only Barney May appeals. Jurisdiction to interpret the Rules of Civil Procedure is in this court. Rule 29 (1) (c). We affirm the trial court.

ARCP 4 (d) (1) provides for personal service inside the state upon an agent authorized by appointment to accept service, a method for service of process not previously authorized. Compare superseded Ark. Stat. Ann. § 27-1121 (Repl. 1962). Our rule provides that service shall be:

(1) Upon an individual, other than an infant or an incompetent person, by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least fourteen (14) years of age or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons. [Emphasis supplied.]

The issue is whether appellant’s attorney was an agent authorized by appointment to receive summons. Two material undisputed facts establish that (1) the attorney accepted service of process and (2) the client-attorney relationship existed. Neither the appellant nor the attorney has ever indicated that the attorney was not in fact authorized to accept service; they simply maintain that appellee did not prove the authorization.

The authority of the attorney to bind his client by acceptance of process pursuant to ARCP 4 (d) (1) may be implied in law from the ostensible circumstances, although an attorney does not, by mere virtue of employment, have authority to accept service of process. The ostensible circumstances implying the authority are well defined in this case. At the hearing on the motion to strike the appellee’s attorney stated, “He [appellant May’s attorney] accepted service on behalf of Mr. May individually.” The judge, after noting the prohibition against an attorney testifying and also trying the case, asked the attorney if he desired to testify and he responded, “I have no objection going to that. I do not intend to testify.” We have stated, “Failure of a party to an action to testify as to facts peculiarly within his knowledge is a circumstance which may be looked upon with suspicion by the trier of the facts.” Starns v. Andre, 243 Ark. 712 at 719, 421 S.W.2d 616 at 620 (1967), quoting Broomfield v. Broomfield, 242 Ark. 355, 413 S.W.2d 657 (1967). The failure of either the appellant or his attorney to testify gives rise to the presumption that the testimony would have been against appellant’s interests. Starns v. Andre, supra. While contending that the authority of the attorney was not established and yet offering no explanation, the appellant paradoxically contended the pleadings filed by the same attorney were valid. The trial judge’s finding that ostensible circumstances were sufficient to prove appointment to receive service of summons is not clearly erroneous, therefore we affirm. ARCP 52.

In no pleading has the appellant asserted the present claim that service of process was insufficient. The trial judge, rather than holding the authority was proven, could well have held the present argument was waived because ARCP 12 (h) provides:

(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or by an amendment thereof permitted by Rule 15 (a) to be made as a matter of course. [Emphasis supplied.]

The standing of the counterclaim was dependent upon the timely filing of an answer. ARCP 12 (b). See Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W.2d 795 (1964); Kirkendoll v. Hogan, 267 Ark. 1083, 593 S.W.2d 498 (Ark. App. 1980).

Once the trial court determined that the appellant’s answer was not timely filed, the only question remaining was whether excusable neglect, unavoidable casualty or other just cause would permit the late filing of an answer. ARCP 6 (b). The appellant neither pleaded nor proved such plight.

The appellant alternatively contends that Article II, § 13 of the Constitution of Arkansas provides for due process for any defense asserted in a civil case and “fundamental standards of fairness and justice” give him the “right to enter the lawsuit on April 2, 1981, by filing his answer.” While there is no apparent merit in the argument, we do not reach it because it was not raised below. “We have held many times that the trial court must be presented with a constitutional issue before we will consider it on appeal.” Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); but see Matthews v. Bailey, 198 Ark. 830, 131 S.W.2d 425 (1939); Howell v. Howell, 213 Ark. 298, 208 S.W.2d 22 (1948).

Affirmed.