author: Robert L. Brown, Justice.

text:
    Austin COOPER v. STATE of Arkansas
    CR 93-1352
    879 S.W.2d 405
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994

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

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

Appellant Austin Cooper was convicted of raping his minor daughter, A.C., who was below the age of fourteen, in violation of Ark. Code Ann. § 5-14-103 (Repl. 1993). He was sentenced to life imprisonment as a habitual offender with more than four prior convictions. Cooper raises five issues on appeal: (1) whether the trial judge erred in allowing hearsay testimony of the victim; (2) whether the trial judge erred in refusing to recuse; (3) whether the trial judge erred in allowing evidence of his arrest in California; (4) whether the trial judge erred in denying his motion to question the victim about her sexual history; and (5) whether the trial judge erred in refusing to grant his request for new counsel. We find no merit in any of the points raised and affirm the judgment of conviction.

On May 6, 1993, Cooper was tried on the rape charge. A.C., who was 13 at the time of the trial, testified that Cooper had sexual intercourse with her at least five times during the period in question. He told her that he could make her have a “bad accident” if she told anyone. N.C., the victim’s eleven-year-old sister, testified that she had seen her father place his finger and penis in A.C.’s vagina on separate occasions. Dr. Russell Mayo testified that A.C. informed him she had been sexually molested by her father for four years. Based on his examination, he determined that A.C. had had sexual intercourse and that she had Trichomonas Vaginitis, a sexually transmitted disease. Teresa Smith, A.C.’s mother who was married to Cooper at the time of the rapes, testified that she had Trichomonas Vaginitis at the same time that her daughter did. No proof was presented that Cooper had the same disease.

The jury found Cooper guilty of rape and after receiving evidence of more than four prior convictions sentenced him to life imprisonment.

I. HEARSAY

Cooper first contends that the trial court erred in allowing Teresa Smith to testify on redirect examination about what A.C. told her that Cooper had done. On cross-examination, defense counsel pursued the following questioning:

DEFENSE ATTORNEY: At that particular time did Austin not confront [A.C.] with these allegations and ask her specifically to tell you that he did not do anything to her and didn’t she respond that he had not done anything to her?
SMITH: He asked her had he been messing with her and she lowered her head and said, no, while he was in the room.
DEFENSE ATTORNEY: Has she not made that same response to other people that inquired?
SMITH: Not to my knowledge.
DEFENSE ATTORNEY: Has she not told her brother that the allegations were not true?
SMITH: Not to my knowledge.
DEFENSE ATTORNEY: Jeremy?
SMITH: I have not heard that.

On redirect examination, the prosecutor asked Smith if A.C. denied that Cooper had done something to her after Cooper left the room. Defense counsel objected, and the prosecutor responded that defense counsel had opened the door to this inquiry and that the mother’s testimony was not offered for the truth of the matter asserted but to show consistency with the victim’s statement. The trial court overruled the objection, and these questions and answers followed:

PROSECUTOR: Again, what did she say after her father left the room?
SMITH: She said, “Moma, I promise it’s true.”
PROSECUTOR: What did she say was true?
SMITH: That he had been abusing her, sexually.

By the defense counsel’s cross-examination, it appears clear that he was implying that A.C. fabricated the charge against Cooper because she had told no one else about it. Ordinarily, evidence of a prior consistent statement by the declarant is not admissible to bolster the credibility of the declarant because it is hearsay. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993); Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). Rule 801(d)(1)(h), however, carves out an exemption from that general rule when an implied charge of recent fabrication has been made:

A statement is not hearsay if:

(1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive,....

Because defense counsel cast doubt on the veracity of A.C.’s allegations against Cooper and since A.C. was subject to cross-examination concerning the statement at trial, the trial judge correctly ruled that the prosecutor could ask Teresa Smith about A.C.’s prior consistent statement. Henderson v. State, supra.

Moreover, Cooper’s defense counsel without question opened the door for the prosecutor’s continued questioning about who A.C. had told about these allegations. Fairness dictates that the prosecutor be allowed to explore this area of inquiry to clarify any confusion or misapprehension that may have lingered in the jury’s minds from defense counsel’s examination. We find no abuse of discretion by the trial judge in permitting the prosecution to go forward with the inquiry. See Dillon v. State, No. CR 93-1068 (June 20, 1994); Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993); Spohn v. State, 310 Ark. 510, 837 S.W.2d 873 (1992).

II. RECUSAL

Cooper next alleges prejudice in that the trial judge was the prosecutor for two of the prior convictions used to enhance his prison sentence. He asserts that the trial judge’s personal knowledge of some of the facts involved in his prior convictions required his recusal under Canon 3.C.l(a) of the Arkansas Code of Judicial Conduct because his impartiality might be reasonably questioned.

This argument is wholly without merit. We have held that a trial judge need not recuse simply because that judge previously prosecuted an appellant which resulted in the felony convictions relied upon for enhancement purposes. See, e.g., Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988); Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982). That is the precise situation we have here, and Cooper has demonstrated no additional basis for recusal.

III. CALIFORNIA ARREST

The third point raised is that evidence of the California arrest prejudiced Cooper because there was no evidence that he left Arkansas to avoid prosecution. He contends that an absence of flight on his part is shown by the fact that he waived extradition from California to Arkansas.

Cooper’s suggestion that his being in California did not constitute evidence of flight ignores the fact that there was testimony that he went to California after being accused of rape and after being thrown out of his house. Cooper denies that he knew that he was accused of rape, but this was an issue for the jury to resolve. This court has held that evidence of flight to avoid arrest may be considered by the jury as corroborative of guilt. See Kill-crease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992); Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990); Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987). It was not error for the trial judge to allow this evidence.

IV SEXUAL HISTORY

Cooper’s fourth claim of error is that the trial judge erred in refusing to allow him to question the victim concerning her sexual history. He concedes that the Rape Shield Act (Ark. Code Ann. § 16-42-101 (Repl. 1994)) would normally bar questions concerning the victim’s prior sexual conduct. However, he argues that the prosecutor opened the door to this evidence when he introduced the fact that the victim had contracted a sexually transmitted disease, Trichomonas Vaginitis, at the same time as her mother. That evidence was prejudicial to Cooper, he maintains, and he should have been allowed to cross-examine A.C. on this matter.

An in camera hearing was held on Cooper’s motion requesting permission to explore other possibilities of how A.C. contracted the disease. The trial judge denied the motion on the basis of the general proscription in the Rape Shield Act against using prior sexual conduct to attack the credibility of the victim or to prove consent or any other defense. Ark. Code Ann. § 16-42-101(b) (Repl. 1994). Cooper stopped with the judge’s ruling and did not pursue his motion under subsection (c) of the Act on grounds of relevancy or based on the fact that the probative value of the prior sexual conduct outweighed its prejudicial impact. Nor did he proffer to the court what he hoped to prove on cross-examination to show prejudice which makes any determination of prejudice by this court all but impossible. Roe v. State, 310 Ark. 490, 837 S.W.2d 474 (1992). We do not mean to suggest that had Cooper done so the cross-examination would have been allowable. We simply observe that the procedures for pursuing an exception to the Rape Shield Act were not followed to conclusion. We find no abuse of discretion by the trial judge in denying the motion. See Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994).

V REQUEST FOR NEW COUNSEL

For his final point, Cooper contends that the trial judge denied him effective counsel by refusing to appoint new counsel for him at trial. During voir dire, Cooper gave the judge a handwritten request for defense counsel’s removal which alleged that he had been successively represented in this matter by Thomas Potter, Wren Autrey,.and now his present appointed counsel, Charles Potter, and that he had only met with Charles Potter once the day before trial for 20 minutes. He asserted that he had “conflicts” with Charles Potter but that Potter was “more experienced in the law” than his two previous attorneys. Cooper noted that no witnesses were present at trial on his behalf, and he asked for a continuance. Later on in the trial, after the trial judge had refused to appoint him new counsel, Cooper acknowledged that Charles Potter was “an excellent attorney” but he went on to request that he be allowed to cross-examine A.C. rather than have Potter do it, which the trial judge allowed.

A grant of new defense counsel would have postponed the trial. This court has held that once competent counsel is obtained, any request for a change in counsel must be considered in the context of the public’s interest in the prompt dispensation of justice. Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991); Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). The refusal to grant a continuance in order for the defendant to change attorneys rests within the discretion of the trial judge, and the decision will not be overturned absent a showing of abuse of that discretion. Clay v. State, supra. In Clay, we held that the trial judge had not abused his discretion by denying a motion for continuance when, just before trial, the defendant decided he wanted a different attorney. In the instant case, Cooper has failed to offer any basis for a claim of abuse of discretion.

Further, in order to show that his attorney was ineffective, Cooper must show that counsel’s performance was so deficient that the counsel was not functioning as such in contravention of the Sixth Amendment. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). Secondly, he must show that he was so prejudiced by the defense as to be deprived of a fair trial. Id. Cooper made no showing of ineffectiveness short of a general allegation that no witnesses were called in his defense. We do not consider the issue of ineffective counsel to have been appropriately raised or developed at trial, and for that reason we will not consider it on direct appeal.

The record in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) for errors prejudicial to Cooper which could warrant a reversal. No such errors have been found.

Affirmed.

       The Arkansas Code of Judicial Conduct was revised in loto by per curiam order dated July 5, 1993.


source: Caselaw Access Project

author: Robert L. Brown, Justice. Steele Hays, Justice,

license: Public Domain

text:
    NUCOR-YAMATO STEEL COMPANY v. The CIRCUIT COURT for the Osceola District of Mississippi County, Arkansas, the Honorable Samuel Turner, Jr., Presiding; Thomas L. Foster; Grove North America, Division of Kidde Industries, Inc.; the Estate of Tim Brown; and Travelers Insurance Company
    93-1056
    878 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994
    [Rehearing denied September 12, 1994.]

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

      Friday, Eldredge & Clark, by: Elizabeth J, Robben, for respondent Grove North America.

      Gibson & Rhodes, by: Mike Gibson and Richard Rhodes, for respondents.

      Hays, J., would grant rehearing.

   Robert L. Brown, Justice.

Petitioner Nucor-Yamato Steel Corporation petitions this court for a writ of prohibition on the basis that Respondent Circuit Court for the Osceola District of Mississippi County lacks jurisdiction to hear the matter. In essence, Nucor maintains that the injured employee in this case, Thomas Foster, was a dual employee of Nucor and Daniels General Contractors, Inc. and that his exclusive remedy is under the Workers’ Compensation Act at Ark. Code Ann. § 11-9-105 (1987). Nucor further urges that we go beyond the pleadings in this case and review depositions, affidavits, and other matters of record to determine Foster’s dual employment status. We decline to do so for the reasons stated in The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993), reh’g denied 315 Ark. 336-A, 869 S.W.2d 8 (1994).

On July 19, 1991, Thomas Foster was injured while working on Nucor’s premises in Armorel. Nucor is engaged in the business of manufacturing and distributing steel beams. At the time of the injury, Foster was an employee of Daniels General Contractors which provided contract labor for Nucor. He had been assigned by Daniels to work at Nucor. He was injured at night when a crane operated by Nucor employee Tim Brown tipped over and struck him.

Following his injury, Foster filed for and received workers’ compensation benefits under a policy issued by Travelers Insurance Company to Daniels General Contractors. On March 13, 1992, Foster filed a complaint in tort against Nucor, Grove North America, Division of Kidde Industries, Inc. (the alleged manufacturer of the crane), and the estate of Tim Brown, individually, and as an employee of Nucor, for damages resulting from the injury. Foster alleged in his complaint that he was employed by Daniels General Contractors at the time of the accident. Nucor answered and admitted that Foster was employed by Daniels General Contractors. Nucor further alleged that Daniels General Contractors provided contract labor to Nucor and that any action against Nucor was barred by the Workers’ Compensation Act.

On March 26, 1993, Nucor filed a motion for summary judgment, alleging the exclusiveness of the workers’ compensation remedy based on the dual employment doctrine. In support of its summary judgment motion, Nucor incorporated “all pleadings, depositions, Affidavits, Answers to Interrogatories, and Admissions on file including, but not limited to, those documents referred to in the list of documents relied upon in Support of Motion for Summary Judgment.” Summary judgment was denied, and Nucor now files this petition for writ of prohibition to bar the exercise of jurisdiction by the circuit court over Foster’s complaint in tort.

When considering a petition for a writ of prohibition, jurisdiction is tested on the pleadings, not the proof. The Wise Company, Inc. v. Clay Circuit, supra; Pryor v. Hot Spring County Chancery Court, 303 Ark. 630, 799 S.W.2d 524 (1990); Spring-dale Sch. Dist. v. Jameson, Judge, 274 Ark. 78, 621 S.W.2d 860 (1981). Contrary to this authority, Nucor now requests that this court consider all of the proof presented in support of its motion for summary judgment in deciding its petition for prohibition. Nucor relies on Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), which was overruled in part by The Wise Company, Inc. v. Clay Circuit, supra, as authority for doing so. Nucor further cites both Fore v. Circuit Court of Izard County, supra, and Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993) as precedent for granting a writ of prohibition based on the exclusiveness of the Workers’ Compensation Act after summary judgment has been denied.

We begin by noting that in Hill v. Patterson, supra, we did grant a writ of prohibition following a denial of summary judgment, but in doing so, we confined our review to the pleadings. More recently, we expressly refused to grant a prohibition writ where the petitioner presented proof in the form of affidavits and depositions that went beyond the pleadings:

Should we do as requested, we would be abandoning a cornerstone principle that in examining petitions for writ[s] of prohibition, we limit our consideration of jurisdiction to the pleadings. We would also be treating a prohibition action much the same as a motion for summary judgment and accepting proof from the parties in support of respective positions. This we refuse to do.

The Wise Company, Inc. v. Clay Circuit, 315 Ark. at 335, 869 S.W.2d at 8. In discussing Fore v. Circuit Court of Izard County, supra, we further stated:

To the extent that Fore can still be read to sanction writs of prohibition based on information outside of the pleadings, such as affidavits and depositions, it is an aberration in our caselaw, and we overrule it.

The Wise Company, Inc. v. Clay Circuit, 315 Ark. at 336-B, 869 S.W.2d at 8. Thus, we have clearly limited ourselves to the pleadings of the parties when considering prohibition petitions.

We turn then to a review of the pleadings to assess whether prohibition is warranted in this case. Nucor refers to certain “undisputed facts” in its petition relating to Foster’s employment status as evidence that a writ should issue. The clarity espoused by Nucor, however, is not evident from the pleadings. Indeed, just the opposite appears to be the case. The complaint filed by Foster alleges that he was employed by Daniels General Contractors in July 1991 and was acting in the course of his employment with Daniels when he performed work on the Nucor premises on the night of the accident. Nucor in its answer to Foster’s complaint alleges that Foster was an employee of Daniels and that Daniels provided contract labor to Nucor. Nucor further alleges that Foster was injured by a crane operated by a Nucor employee and asserts as an affirmative defense that any action against Nucor and its employee is barred by the Worker’s Compensation Act. Far from being undisputed, on the face of the pleadings it appears that Foster’s status as a dual employee at the time of the accident is very much at issue.

A writ of prohibition will only issue when there are no disputed facts. National Sec. Fire & Casualty Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992); Pryor v. Hot Spring County Chancery Court, supra; Isely v. Isely, 287 Ark. 401, 700 S.W.2d 49 (1985); Webb v. Harrison, Judge, 261 Ark. 279, 547 S.W.2d 748 (1977). This court has further held that when a defense such as the exclusivity of the Workers’ Compensation Act is asserted and' the facts are disputed, the remedy of the party asserting that defense is by appeal, not by writ of prohibition. Pryor v. Hot Spring County Chancery Court, supra; Smith v. Circuit Court of White County, 249 Ark. 262, 459 S.W.2d 61 (1970); see also Wade v. State, 264 Ark. 520, 571 S.W.2d 231 (1978). Prohibition is only proper when the jurisdiction of the trial court depends on a legal rather than a factual question. Fausett and Co. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985).

In short, Nucor bears the burden of demonstrating that it is clearly entitled to proceed by petition for a writ of prohibition rather than by appeal. Village Creek Imp. Dist. of Lawrence County v. Story, 287 Ark. 200, 697 S.W.2d 886 (1985). That burden has not been satisfied in this case.

Writ denied.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. Ark. Code Ann. § 11-9-105(a) (Supp. 1993) provides in part: “The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee,. . .” We have recognized that the intentional infliction of an injury upon an employee is an exception to the exclusive remedy provision of the Workers’ Compensation Act. See Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993). Also, the Workers’ Compensation Act does not preclude an action against a third-party tortfeasor. See Ark. Code Ann. § 11-9-410 (Supp. 1993). Subject to these narrow exceptions, an employer is immune from liability for damages in a tort action brought by an injured employee.

The narrow exception for third-party tortfeasors has been expanded far beyond the original intentions of the General Assembly. See Thomas v. Valmac Indus. Inc., 306. Ark. 228, 812 S.W.2d 673 (1991). In his response to Nucor’s petition for writ of prohibition, Mr. Foster acknowledges that Daniels General Contractors provided contract labor for Nucor. Mr. Foster had been assigned by Daniels to work for Nucor. Thus, Mr. Foster’s only remedy was under the worker’s compensation law. See generally Daniels v. Riley’s Health & Fitness Ctrs., 310 Ark. 756, 840 S.W.2d 177 (1992).

Recently, the General Assembly recognized the expansion of the exceptions to the rule of exclusivity under the workers’ compensation law. Act 796 of 1993 amended § 11 -9-105(a) to provide:

The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. [Emphasis supplied.]

Even if Nucor was not in fact Mr. Foster’s employer, Nucor was a prime contractor of Daniel General Contractors. Accordingly, the workers’ compensation law would be the exclusive remedy. Although the provisions of Act 796 apply only to injuries which occur after July 1, 1993, clearly the General Assembly has recognized the recent limitations on the exclusivity provision.

Furthermore, in Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993), it was evident from the pleadings that no cause of action at law was stated, i.e., the exclusive jurisdiction of the workers’ compensation commission was clear. Conversely, in The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993), reh’g denied 315 Ark. 336-A, 869 S.W.2d 8 (1994), it was equally clear that a cause of action for the tort of outrage — the intentional infliction of emotional distress — was stated, giving rise to an action at law. Because the allegations in Wise met the demanding criteria of the tort of outrage as defined in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), we denied the requested writ of prohibition. In cases falling on the cutting edge, such as this one, I believe we should look beyond the pleadings to determine whether the exclusivity provision of the Workers Compensation Act applies.

For the foregoing reasons, I respectfully dissent from the denial of the writ of prohibition.


text:
    Julia Ann PURTLE, et al. v. Shelby L. McADAMS, et al.
    94-28
    879 S.W.2d 401
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994
    [Rehearing denied September 12, 1994.]

      John I. Purtle, for appellants.

      B.J. McAdams, for appellees.

      Dudley, J., not participating.

   Robert L. Brown, Justice.

John I. Purtle appeals his disqualification as counsel for certain parties in a foreclosure matter pending in Pulaski County Chancery Court. Authority for this appeal is found at Rule 2(a)(8) of the Arkansas Rules of Appellate Procedure. See also Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982). We affirm the chancery court’s order of disqualification.

In 1984, appellant Julia Ann Purtle was married to Robert McAdams. Robert McAdams is the nephew of Shelby McAdams and the son of B.J. McAdams. Julia and Robert McAdams owned a home at #2 Eastlake Drive, North Little Rock. They had one son, Bobby, who is described by Julia Purtle as having a severe learning disability though B.J. McAdams disputes this. That same year Julia and Robert McAdams divorced. As part of the divorce settlement, Julia quitclaimed the Eastlake home to Robert McAdams. Julia then married appellant Tommy Purtle. John Purtle is the uncle of Tommy Purtle.

On December 6, 1991, Robert McAdams quitclaimed the Eastlake home to Julia Purtle. At that time, B.J. McAdams contends that the property had an equity value of some $80,000 which was the result of payments made by him. The deed contained a statement that it was given with the understanding that Julia Purtle would furnish a place for their son, Bobby, to live. On December 31, 1991, Robert McAdams, represented by counsel other than John Purtle, sued Julia Purtle for cancellation of that quitclaim deed because at the time he executed it, he had a “lessened mental capacity” and was subjected to undue influence. A letter was attached to that complaint from a psychological examiner, Joseph Brogdon, to the effect that Robert McAdams “would have difficulty understanding the complexities and legal ramifications of any sort of real estate transaction that has transpired between him and his ex-wife.” Mr. Brogdon also concluded in his report that Robert McAdams operated “in the borderline range of intelligence” and was “easily confused.” In response to a motion for summary judgment, apparently filed by Julia Purtle, Robert McAdams signed an affidavit that he understood that Julia would deed the property back to him if he requested it. Robert McAdams subsequently refused to appear at the trial of his lawsuit, and the case was non-suited.

In 1993, the mortgage on the Eastlake home was owned by appellee Shelby McAdams. On March 15, 1993, Shelby McAdams filed a complaint against Julia and Tommy Purtle, among others, seeking to foreclose on the Eastlake home due to default on the debt secured by the mortgage. The Purtles, represented by John Purtle as counsel, answered the complaint and counterclaimed for damages, alleging that the McAdams complaint was part of a vindictive conspiracy by Shelby McAdams and B.J. McAdams to harass Julia Purtle and obtain the Eastlake home by fraudulent means. The Purtles also moved to dismiss the complaint on the same grounds as set out in the counterclaim. John Purtle was the attorney for the Purtles until the order of disqualification which is the subject of this appeal.

On July 30, 1993, Robert McAdams sought to intervene in the foreclosure suit and claimed that his trust funds in the amount of $300,000 were illegally converted by the original mortgagee of the Eastlake home, Constellation Development Corporation, and by B.J. McAdams and that he wanted Julia Purtle to live in the Eastlake home with their son, Bobby. John Purtle represented Robert McAdams in this petition to intervene. That petition has yet to be acted on due to John Purtle’s disqualification.

Though this is ill-defined from the record in this appeal, John Purtle also has represented Julia Purtle against Robert McAdams regarding child support payments emanating from the divorce. In his legal brief before this court, B.J. McAdams contends that delinquent child support was used by Julia Purtle as leverage against Robert McAdams to influence him.

On August 16, 1993, B.J. McAdams moved to disqualify John Purtle as counsel for any party in this matter because he represented both Julia Purtle and Robert McAdams when he prepared the quitclaim deed from Robert to Julia. B.J. McAdams stated that he intended to call John Purtle as a witness at the trial. John Purtle responded that Julia Purtle and Robert McAdams do not have antagonistic claims in the current lawsuit, that both want Julia to keep the Eastlake home, and that both want him to continue to represent them. At the hearing on the motion, Robert McAdams testified that he now wanted Julia to have the Eastlake home and for John Purtle to represent him. He further testified that his son, Bobby, was living with him in Benton and not with Julia.

Following the hearing, the chancery court ordered that John Purtle be disqualified as counsel due to the fact that he represented Julia and Tommy Purtle as well as Robert McAdams and due to the likelihood that he would be called as a witness concerning the quitclaim deed which conveyed the Eastlake home from Robert to Julia. The following colloquy depicts in part the chancery court’s reasoning for the disqualification:

MR. PURTLE: Your Honor, I want to be sure that I understand and make this simple for the next step, that I am being disqualified because I prepared the deed between the parties before.
THE COURT: Right. Correct.
MR. PURTLE: And also —
THE COURT: But not just because of that, but because it’s a disputed transaction as to how that transaction came about and why. And you had a role in that transaction. Whatever the role was, you had a role in the preparation of the deed. And I don’t know what the extent of the role was. That would be subject to testimony. But all I’m saying is, I am not going to prejudge what your role was in it. All I’m going to say is, you did prepare the deed. There is a dispute about how that whole transaction came about and why. And that’s it.
MR. PURTLE: But there is no dispute about me playing a part in the transaction before that, because I —
THE COURT: I don’t know that yet. You’ve — there’s been a lot of testimony going on about who played what role. I’m not going to prejudge that.

The Model Rules of Professional Conduct, which we have adopted, contain two rules which appear to have played a part in the chancery court’s decision. The first is Rule 3.7 dealing with the lawyer as witness. The second is Rule 1.7 concerning conflicts of interest. Rule 3.7 reads as follows:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

That rule, however, deals with situations where the lawyer is to be a witness on behalf of his or her client — not when called as a witness by the opposing party. The first paragraph of the comment to this rule makes that clear: “Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.” Moreover, the cases cited by B.J. McAdams in his brief are concerned with situations where the attorney seeks to testify on behalf of his or her own client. See, e.g., McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990); Calton Properties, Inc. v. Ken’s Discount Building Materials, Inc., 282 Ark. 521, 669 S.W.2d 469 (1984); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983) (supp’l op.).

That is clearly not the situation here. Moreover, the obvious danger from allowing an adversary to call opposing counsel as a witness and disqualify that counsel as a result is the potential for subterfuge. It could easily be used as a ploy to cripple a party from effectively presenting a case. Finally, we discern no prejudice to John Purtle’s clients at this stage from his being called as a witness by the McAdamses. Without discernable prejudice to his clients by his testimony, there is no basis for disqualification. See Rule 3.7 of the Model Rules of Professional Conduct (Code Comparison, DR5-102(B); see also Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W.2d 366 (1992); McCoy Farms, Inc. v. McKee, 263 Ark. 20, 563 S.W.2d 409 (1978).

We turn next to Rule 1.7 on conflicts of interest:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

John Purtle currently represents Julia and Tommy Purtle in this matter. He has represented Julia against Robert McAdams in connection with child support for her son, Bobby. He represented Julia in drafting the quitclaim deed for the Eastlake home. He represented Julia against Robert when Robert sued Julia in 1991 to cancel that quitclaim deed. He now seeks to represent Robert as an intervenor in this matter. Despite these entanglements, he showed the chancery court that Julia and Robert McAdams consent to his continued representation in this matter, and their testimony confirms this. Furthermore, he assiduously maintains that his representation of the parties will not adversely affect his relationship as counsel with either one of them.

We do not agree. The concern in all this on the part of the chancery court undoubtedly was Robert McAdams, who according to one evaluation suffers from low mental capacity and is susceptible to manipulation and influence. Certainly, he has wavered in his positions taken during the history of this case. He deeded the Eastlake home to Julia, then sued to get it back while represented by independent counsel, and now states that he wants Julia to have it. One stated reason for wanting Julia Purtle to have the property is for their son, Bobby, to have a home but at the hearing, Robert McAdams testified that his son was currently living with him in Benton. Robert also presently contends that his father, B.J. McAdams, defrauded him by taking his trust funds, while his father counters that he actually made the payments on the Eastlake home so that Robert could live there and have some equity in the home. All of this is to say that we do not believe that it is reasonable for counsel to believe that by representing Julia Purtle, his niece by marriage, that the interests of Robert McAdams regarding the Eastlake home will not be adversely affected.

Moreover, we do not believe that John Purtle should continue as counsel for Julia and Tommy Purtle. The chancery court found in its order that John Purtle would likely be called as a witness at trial concerning disputed facts underlying the preparation of the deed. This was an acknowledgment that he was representing antagonistic interests as counsel for both the Purtles and Robert McAdams. What is worrisome about this is that in his representation of Robert McAdams, John Purtle was in a position to garner information that was helpful to the Purtles and detrimental to Robert. For that reason, we believe that the chancery court was correct in disqualifying him from representing any party in this matter.

As a final matter, John Purtle moves to strike the appellee’s brief on grounds that its statement of the case does not conform to our rules, the supplemental abstract is argumentative, and the argument references matters outside of the record. None of the contentions warrants striking the brief, and matters outside of the record were not considered. The motion is denied.

Affirmed.

Dudley, J., not participating.

       Robert McAdams’s father, B.J. McAdams, was shown as a third-party defendant on the petition to intervene though the record before us is unclear as to when B.J. McAdams was brought into the lawsuit in that capacity.


text:
    Linda J. Hall TANBAL v. Larry E. HALL
    94-138
    878 S.W.2d 724
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994

      L. Ashley Higgins, P.A., by: L. Ashley Higgins, for appellant.

      Simes & Simes, by: L.T. Simes, II, for appellee.
   Robert L. Brown, Justice.

This appeal concerns the Uniform Reciprocal Enforcement Support Act (Ark. Code Ann. § 9-14-301, et seq. (1987)) and the authority of the Phillips County Chancery Court to nullify the original support order of another state, in this case Arizona, without specifically providing that the Arizona decree was nullified. The issue came before the chancery court in the form of a petition to enforce arrearages as found by the Arizona court in 1990 against the appellee, Larry E. Hall. The Arkansas chancery court denied the petition on the basis that it had entered its own judgment for an arrearage amount in 1989 which decided the issue. We conclude that there was no specific nullification of the Arizona decree by the Arkansas chancery court at any juncture, and we reverse and remand to the chancery court for further proceedings consistent with this opinion.

Appellant Linda J. Hall Tanbal married appellee Larry E. Hall in 1968 in Tucson, Arizona. During the marriage, twin children were born. Less than four years later in 1971, the couple divorced. At the time of the divorce, the children were approximately eight months old. Under the decree, Linda Tanbal was granted custody of the two children, and Larry Hall was required to make child support payments of $225.00 per month.

Following the divorce, Hall moved to Phillips County, and these orders were entered by the Arkansas chancery court:

(a) On December 11, 1981, an order was entered, finding that Hall was $2,925.00 in arrears in child support and ordering him to continue child support payments of $225 per month.
(b) On December 17, 1982, an order was entered, finding that Hall was $5,625.00 in arrears in child support. Support was set at $18.00 per week per child and $5.00 per child for the arrearage.
(c) On January 13, 1984, an order was entered reducing Hall’s child support payments to $9.00 per week per child and $2.50 per week per child for the arrearage.
(d) On April 21, 1989, an order was entered, following Tanbal’s petition for arrearage and increased support and her personal appearance before the chancery court. An order finding an arrearage amount of $7,459.85 was entered and support payments of $218.00 per month were established.

Following the chancery court’s 1989 order, Tanbal returned to Arizona, and in October 1989, she filed a Petition for Judgment for Arrears in that state. Hall was served with the petition by registered mail but made no appearance. Tanbal sought a judgment in the amount of $47,700 for arrearages accumulating over the period from October 1, 1971, through June 1, 1989. In her affidavit to the court, she acknowledged that Larry Hall had made support payments pursuant to the 1971 decree and “other support orders granted in the URESA proceedings.” She also stated that the 1971 Arizona decree had not been modified. The Arizona court had before it at least two of the Arkansas chancery court support orders. By order dated January 2, 1990, the Arizona court found that Hall was $34,597.97 in arrears, after giving Hall credit for support payments made. No appeal was taken by either party from the 1989 Arkansas chancery court order establishing an arrearage of $7,459.85 or from the 1990 Arizona arrearage order.

On August 27, 1992, the Phillips County Child Support Unit filed its petition for payment of arrearages against Hall to enforce the Arizona arrearage recovery order of $34,597.97. Hall moved to dismiss on grounds that the 1989 chancery court order in Phillips County was entered before the 1990 Arizona order. He further asserted that Tanbal committed fraud by representing to the Arizona court by affidavit that the 1971 divorce decree had not been modified by subsequent court order. Additionally, he urged that res judicata was applicable in light of the chancery court’s 1989 order establishing the arrearage amount at $7,459.85. He finally contended that Tanbal should have appealed from either the Arizona or the chancery court arrearage order and was barred from further litigation on the matter because she did not.

The chancery court granted Hall’s motion to dismiss and found that the Arkansas chancery court orders amended the 1971 Arizona decree. The court further concluded that the issue of the arrearage amount before the Arizona court in 1990 had previously been litigated in Arkansas and resolved under the 1989 chancery court order.

For her sole point on appeal, Tanbal urges that the Arkansas chancery court erred in dismissing the Unit’s petition to enforce the Arizona arrearage order. She cites the fact that the Arkansas orders failed to specifically nullify the 1971 Arizona decree as required by the Arkansas Uniform Reciprocal Enforcement of Support Act. See Ark. Code Ann. § 9-14-331 (1987). Under that statute, a foreign court’s order could only be nullified as follows:

A support order made by a court of this state pursuant to this subchapter does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another state shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this state. (Emphasis ours.)

We have scoured the four support orders entered by the chancery court, and there is no Arkansas order specifically providing for a nullification of the 1971 Arizona decree. However, because Hall chose only to pay the support amounts awarded under the various Arkansas orders, he argues that this effected a modification of the Arizona decree. This court has previously rejected a similar argument when the obligor alleged that his Arkansas obligation was fulfilled by compliance with orders reducing support in another state. See Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987); see also Luckes v. Luckes, 262 Ark. 770, 561 S.W.2d 300 (1978). In interpreting § 9-14-331, we stated in Britton:

Our statute clearly provides that a subsequent order does not nullify a prior order unless specifically provided by the court and that payments pursuant to another court’s order are treated as credits against the original order. The Arkansas court gave full faith and credit to the Kansas court order because the Kansas payments were properly credited in reduction of the Arkansas obligation.

293 Ark. at 400, 738 S.W.2d at 410.

Hall seeks to distinguish Britton v. Floyd in the same manner as did the chancery court. He points to the various Arkansas proceedings where more than his ability to pay was explored. He also emphasizes that throughout the history of this case the chancery court in Arkansas was issuing orders with regard to the 1971 Arizona decree. The effect of these orders, according to Hall and the chancery court, was to modify that decree.

We do not agree. The statutory mandate here is clear and unambiguous, and Britton v. Floyd underscores that mandate. The effect of the Arkansas orders was to reduce Hall’s support burden, but they had no impact on the original Arizona decree. Payments made pursuant to the Arkansas orders were properly credited against the Arizona obligation, but the Arizona decree continued in full force and effect absent a specific nullification.

Hall further contends that Tanbal obtained the 1990 Arizona judgment of arrearage by fraud because she stated that the 1971 Arizona decree had not been modified. We give Hall’s fraud argument no credence in light of our conclusion that none of the Arkansas chancery court orders did specifically nullify the 1971 Arizona decree as required by § 9-14-331. Further, even if Hall’s allegations of fraud were true, they fall short of demonstrating fraud in the procurement of the 1990 judgment which is what is required:

Such fraud, however, must be extrinsic to the questions presented for decision. For example, as we explained in Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950), there is extrinsic fraud when a party is kept away from the trial or when a party is corruptly betrayed by his own attorney. “On the other hand,” we went on to say, “the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed.” Our Reports contain many cases to the same effect.

Johnson v. Lbrm’s Reciprocal Ins., 249 Ark. 550, 552, 460 S.W.2d 53, 54 (1970). Here, there is no contention that extrinsic fraud was practiced upon the Arizona court in the procurement of the 1990 judgment itself. See Ark. State Hwy. Comm. v. Clemmons, 244 Ark. 1124, 428 S.W.2d 280 (1968).

Reversed and remanded for further proceedings consistent with this opinion.

       This Acl was repealed by Act 468 of 1993 entitled the Uniform Interstate Family Support Act, now codified at Ark. Code Ann. § 9-17-101, ei seq. (Repl. 1993), and effective March 12, 1993.

       Repealed March 12, 1993. See Footnote 1.


author: Per Curiam.

text:
    Kindra McCAMMON v. STATE of Arkansas
    94-644
    877 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994

      DeLoss McKnight, for appellant.
    No response.
   Per Curiam.

Appellant, Kindra McCammon, by her attorney, DeLoss McKnight, has filed a motion for rule on the clerk. Her attorney admits that the record was tendered late due to a mistake on his part.

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

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


author: Jack Holt, Jr., Chief Justice.

text:
    James ROBINSON, JR. v. STATE of Arkansas
    CR 93-1409
    879 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      Jack W. Barker, for appellant.

      Winston Bryant, Att’y Gen., by; Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, James Robinson, Jr., was sentenced to terms of life imprisonment, fifty years, and twelve years, and received fines totaling $50,000, following his conviction on charges of delivery of a controlled substance, conspiracy to deliver a controlled substance, and operating a drug premises. On appeal, he raises two points for reversal, arguing that the trial court erred in allowing the State to introduce into evidence three facsimile chemical analysis reports from the Arkansas State Crime Laboratory on the grounds (1) that the faxed documents had not been provided to defense counsel through appropriate and timely discovery, and (2) that the faxed documents constitute inadmissible hearsay. Neither contention has merit, and we affirm the judgment of the trial court.

Facts

On September 15, 1992, the Narcotics Division of the El Dorado Police Department was engaged in an undercover operation that focused on appellant Robinson, who was known by his street name, “Grove.” After collecting information on the subject and conducting visual surveillance of his residence, the police employed confidential informants to make controlled purchases of crack cocaine from Robinson. When field tests of the drugs yielded positive results, the police obtained a search warrant, entered the house, and arrested Robinson and three other individuals, one of whom was found to have hidden a quantity of crack cocaine on his person.

Robinson was charged with delivery of a controlled substance, conspiracy to deliver a controlled substance, operating a drug premises, and being a habitual offender (having been convicted of three prior felonies). A jury trial was held on July 7, 1993, and Robinson was sentenced to life imprisonment and fined $25,000 for delivery of a controlled substance; sentenced to fifty years and fined $15,000 for conspiracy to deliver a controlled substance; and sentenced to twelve years and fined $10,000 for operating premises.

In two separate arguments, Robinson contends that the trial court erred in admitting into evidence facsimile copies of analysis reports prepared by the State Crime Laboratory detailing the results of the tests performed on the two “rocks” of crack cocaine purchased by the confidential informants. These exhibits established that the substances in question were rock material consisting of cocaine base and benzocaine.

I. Admission of facsimile documents

Although, as presented, this appeal features two points for reversal, the pair of arguments are related and overlapping. Rather than consider them separately, we will treat the two as part of a single issue — whether the trial court erred in admitting into evidence the facsimile documents.

a. Discovery violation

During the trial of this case but before the State’s formal introduction of the facsimile copies of the reports, a meeting was held in chambers at which defense counsel objected to the admission of the faxed reports on the basis of a violation of the rules governing discovery. She contended that the copies of the reports that had been made available to the defense through the prosecuting attorney’s open-file policy had not been properly attested and that, because of this asserted discovery violation, she was unable to prepare adequately for trial.

Under Ark. R. Crim. P. 17. l(a)(iv) (1994), the prosecuting attorney must, “upon timely request,” disclose to defense counsel “any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations, scientific tests, experiments or comparisons. . . .” Rule 17.3(a) provides:

The prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession of other governmental personnel which would be discoverable if in the possession or control of the prosecuting attorney, upon timely request and designation of material or information by defense counsel.

The Union County Prosecuting Attorney’s Office maintained an open-file discovery policy in lieu of formal compliance with discovery rules.

Prior to trial, defense counsel examined the prosecutor’s file on the present case and found the three unattested crime lab reports relating to the crack cocaine purchased or seized at Robinson’s residence. During the meeting at which defense counsel objected to the introduction of the faxed copies of the reports, the deputy prosecutor explained that amended reports bearing the required attestation clauses had been entrusted to the police for safekeeping until the trial date but that the documents had disappeared. Consequently, according to the State, efforts were then underway to obtain faxed copies of the two reports on the substances purchased from Robinson. (A third faxed copy, pertaining to the rocks of crack cocaine seized from another party at Robinson’s residence, was already in the prosecutor’s file.)

Responding to defense counsel’s objection, the trial court ruled that the three facsimile reports would be admissible, making the following remarks:

I’ll just state this for the record for purposes of whoever reviews this if they do at some point, that I think that the State has not complied with the defendant’s discovery. The State is chargeable with the knowledge of law enforcement and to me there is no distinction between the police file and the prosecutor’s file. You’re responsible for everything in both of them. And I think it was the duty of the State to have in its file the exact documents[.] [I]f you’re going to use an open file policy, it’s incumbent on the State to have the exact documents that you intend to submit.
And I think it is a violation and a non-compliance with discovery to then come in at trial and you come up with documents that have things added, which these do. So I think that’s clear, and I think we’ve got a discovery issue.
I’m comfortable with the admissibility of the facsimile copies or photostatic copies. None of these things disturb me. It’s the discovery issue. But the rule on discovery does not simply say that if there is a problem with discovery then the item has to be excluded ... or that the witness will be excluded. I mean, this Court all the time is presented with situations where you have last-minute witnesses and the Court has to determine whether there is any prejudice presented by it. And here, I think, what the consensus is, and what I’ve heard everybody say, is there’s no prejudice because nobody would have done anything differently.
And when you get down to the protection of the substantial rights of the defendant, they are protected here by virtue of the attestation provision. We’ve got a discovery problem, and I am chastising the State, for lack of a better term for that, but I don’t feel that the way to deal with it is to exclude it. And so I’m going to allow them to be entered.

We agree with the trial court’s observations and comments. Obviously, the State violated the rules of discovery. If a prosecutor’s office intends to fulfill its discovery obligations by relying upon an open-file policy, it must make every practicable effort to ensure that the information and records contained in the file are complete and that the documents employed at trial are identical to the material available to the defense in the open file.

We also agree with the trial court that, despite the discovery violation, Robinson failed to demonstrate how he was prejudiced. In fact, the trial court’s balanced disquisition was perfectly in accord with the holdings of this court that, in order to obtain a reversal of a criminal conviction on the basis of a discovery violation, the appellant must make a showing of prejudice. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).

Here, Robinson’s attorney had access to reports that, substantively, were identical to the facsimiles later introduced at trial. More important, though, counsel for the defense indicated to the State that she had no desire to cross-examine the chemist who conducted the drug analysis. She admitted at the hearing that she had no desire to call Mr. Buck to the witness stand, asking rhetorically, “Now why would I want the Crime Lab to come down and testify that that’s cocaine when I know she [the deputy prosecutor] can’t get the reports in the way they are? ... And why should I make a request because I don’t want the lab person to come.” Finally, when questioned by the trial court about the prejudice to her client and the “difference” the introduction of the facsimiles would make to his case, Robinson’s attorney replied, “Probably no difference as to the ultimate outcome. ... I don’t think it would have been any different. It’s not going to be any different whether the chemist says it was cocaine or whether the report says it was cocaine. I mean, in reality, I suppose, it’s better for a chemist to say it than just a little report to say it, you know.”

In other words, defense counsel plainly waived her objection to the discovery violation and conceded that no prejudice resulted from the State’s failure to comply with its dicovery obligation under the rules of criminal procedure. The trial court, therefore, did not err in this regard.

b. Hearsay objection

At the in-chambers hearing, counsel for Robinson also objected to the admission of the faxed, properly attested drug analysis reports on the basis that the Arkansas Rules of Evidence do not provide a hearsay exception for facsimile copies. Two separate Arkansas statutes permit the admission of duly attested drug analysis reports. One, Ark. Code Ann. § 5-64-707 (Repl. 1993), deals with reports issued by the Arkansas Department of Health. The other, Ark. Code Ann. § 12-12-313 (Supp. 1993), which is relevant to the present case, concerns State Crime Laboratory reports in general. Subsection (a) provides:

The records and reports of autopsies, evidence analysis, drug analysis, and any investigations made by the State Crime Laboratory under the authority of this subchapter shall be received as competent evidence as to the matters contained therein in the courts of this state subject to the applicable rules of criminal procedure when duly attested to by the executive director or his assistants, associates, or deputies.

Subsection (d) provides:

(1) All records and reports of evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the employee who performed the analysis.
(2) The defendant shall give at least ten (10) days notice prior to the proceedings that he requests the presence of the employee of the State Crime Laboratory who performed the analysis for the purposes of cross-examination.
(3) Nothing in this subsection shall be construed to abrogate the defendant’s right to cross-examination.

When a chemical analysis report contains an attestation by the chemist who purports to have performed the test, certifying that he or she personally performed the laboratory test and prepared the laboratory analysis report, the statement satisfies the statutory requirement of § 12-12-313. See Willis v. State, 309 Ark. 328, 829 S.W.2d 417 (1992). Otherwise, such a report is considered inadmissible hearsay under Ark. R. Evid. 803(8)(iii). Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1990).

Although the State Crime Lab’s drug analysis reports that were included in the prosecutor’s file for inspection purposes did not contain attestation clauses, the oversight was corrected on the date of the trial by Jerry C. Buck, the chemist who performed the tests. Mr. Buck attested to the truth and accuracy of each of the three reports and faxed the amended documents to the prosecuting attorney in Union County.

As the trial court accurately indicated, Ark. R. Evid. 1003 (1994) provides for the admissibility of duplicates. The rule states that:

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

It is significant that Robinson neither questioned the authenticity or continuing effectiveness of the original drug analysis reports nor challenged the deputy prosecutor’s explanation that “the only difference between these reports [the originals and the facsimiles] is the [added] attestation by the expert.”

It is Robinson’s contention that the admission of the facsimile documents denied him his right to confront and cross-examine his accusers — a right expressly acknowledged in Ark. Code Ann. § 12-12-313(d)(3), quoted above. He points to § 12-12-313(d)(2), where a ten-day notice requirement is set forth for a defendant wishing to cross-examine the Crime Lab employee who performed the analysis in question. In Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990), this court held that failure to comply with the notice provision of subsection (d)(2) constitutes waiver of the confrontation right. Robinson has cited the holding of the Arkansas Court of Appeals that a defendant’s failure to give such notice will not be deemed a waiver of his right to cross-examine the Crime Lab employee if he neither knew nor should have known that the State intended to introduce the Crime Lab report. Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992). Although we do not take issue with the appellate court’s holding, the case has no application to the present circumstances.

Robinson maintains that, because he was not aware that the State intended to introduce an amended report with proper attestation, he was unable to comply with the statutory notice provision. This assertion is rather disingenuous, to say the least. As mentioned above, counsel for the defense explicitly declared her desire not to cross-examine the chemist. Further, as noted earlier, the only difference between the original reports and the facsimiles was the addition of attestation clauses by the chemist who had performed the drug analysis. Robinson obviously knew that the State intended to introduce the defective originals, which contained precisely the same analysis results as the subsequently submitted corrected copies, and was evidently gambling on the State’s continuing failure to correct the oversight.

. Thus, the absence of proper attestation notwithstanding, Robinson had actual notice of the test results and was allowed his opportunity to challenge the authenticity of the documents to pass. Having trusted to chance, he cannot now claim surprise. Moreover, Robinson has failed to show how it was ■unfairly prejudicial to admit the faxed copies in place of the originals when he had no intention of cross-examining the Crime Lab chemist anyway.

The trial court did not err in finding that the facsimile documents were admissible under the rules of evidence.

II. Rule 4-3(h) review

In compliance with Rule 4-3 (h) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, the State has searched the record for objections decided adversely to Richardson not abstracted by the appellant and has supple-mented the abstract. No abstracted ruling involves prejudicial error.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Jerry Chris JOHNSON v. STATE of Arkansas
    CR 94-80
    878 S.W.2d 758
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      Omar F. Greene II, for appellant.

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

Appellant was charged in circuit court with the felony of aggravated robbery and the misdemeanor of theft of property. At the time the offenses were committed, and at the time the charges were filed, appellant was fourteen years of age. Appellant moved to transfer the charges from circuit court to juvenile court. After a hearing the circuit judge denied the motion and set the aggravated robbery case for trial. Appellant brings this interlocutory appeal. We affirm the ruling of the circuit court refusing to transfer the aggravated robbery charge to juvenile court.

At the hearing on appellant’s motion to transfer, he offered the testimony of his grandmother and father. His grandmother testified that if appellant were treated as a juvenile, she would see that he stayed at home, kept reasonable hours, and got back in school. His father testified that he would see that his son got to school and abided by the law. Appellant testified that, if given the chance, he would work with his probation officer, get back in school, and come in at reasonable hours.

In opposition, the State called appellant’s probation officer, who testified that appellant was currently on probation for theft by receiving of a Buick automobile and fleeing from a police officer. The probation officer additionally testified that appellant had been adjudicated a delinquent on a possession of cocaine charge and was awaiting disposition of that adjudication in juvenile court. The officer testified that, conditioned on the charges at issue being transferred to the juvenile system, the judge of the juvenile court had requested a risk assessment, which meant that the judge was considering sending appellant to the" Office of Youth Services. However, he further testified that the Office of Youth Services was in the process of closing and that the juvenile system had no incarceration and rehabilitation system at that time. Juvenile court reports confirmed the three prior adjudications in juvenile court.

The State also called the detective who investigated the robbery and theft charges now pending. He testified that at 4:20 a.m. on June 4, 1993, three young males entered the Legacy Hotel in Little Rock. One of the young men pulled a pistol and demanded money from the night clerk. They grabbed the money and fled. Appellant and two other young men were arrested shortly after the robbery and theft, and the night clerk identified appellant as the one who pulled the pistol from his pants and demanded the money.

The circuit court refused to transfer the case to juvenile court and, among its findings, found that the act of aggravated robbery was one of violence. In this appeal, appellant argues that his alleged act was not one of violence, but rather was only a threat to commit violence.

The applicable statute, Ark. Code Ann. § 9-27-318 (Repl. 1993), provides that if a juvenile is fourteen or fifteen, the prosecutor may file a charge of aggravated robbery in circuit court. Id. § 9-27-318(b)(1). Subsection (e) of the statute sets out the factors to be considered in the determination of whether jurisdiction should be retained or transferred. It provides that the court should consider:

1. The seriousness of the offense and whether it involved violence.
2. Whether it is part of a repetitive pattern and whether the juvenile is beyond rehabilitation as a juvenile.
3. The prior history, character traits, mental maturity, and any other factor which reflects upon prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (Repl. 1993).

We have said that it is not necessary to give equal weight to each factor in juvenile transfer cases and, further, that proof need not be introduced against the juvenile on each factor. Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). Here, the alleged aggravated robbery is part of a repetitive pattern of offenses, and past efforts at rehabilitating appellant in the juvenile court system have not been successful. These factors alone would prevent us from holding the trial court’s ruling on the aggravated robbery charge was clearly erroneous. See Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991).

We also affirm the ruling on aggravated robbery based on our case of Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). The aggravated robberies in that case were almost identical to the one in the case at bar, and we “determined that there was violence employed in the commission of the offenses.” Williams, 313 Ark. at 455, 856 S.W.2d at 7. Thus, we affirm the circuit court’s ruling denying the motion to transfer the aggravated robbery charge to juvenile court.

Affirmed.


author: Robert H. Dudley, Justice. Robert L. Brown, Justice,

text:
    Gari WEST and Larry West v. G.D. SEARLE & COMPANY, Searle & Company, and Searle Pharmaceuticals, Inc.
    93-685
    879 S.W.2d 412
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      David Hodges and Josh McHughes, for appellant.

      Friday, Eldredge & Clark, by: Elizabeth J. Robben; and Sidney & Austin, by: William P. Richmond, for appellee.
   Robert H. Dudley, Justice.

From 1971 to 1983, Gari West took Ovulen-28, a prescription drug indicated for oral contraception. The drug was manufactured and distributed by defendant Searle. In December of 1983, Gari West was diagnosed as having a hepatic adenoma, a benign liver tumor, which caused damage and extensive suffering. Hepatic adenomas may develop for no known reason, but such adenomas are often known to be caused by taking oral contraceptive^. Gari West and her husband, Larry West, sued Searle and alleged that Ovulen-28 was defectively designed and manufactured, that Searle was negligent in warning of the danger of the drug, and that Searle breached the warranty of fitness for a particular purpose. The trial court granted summary judgment on all counts, and the Wests appealed. We affirmed and modified in part and reversed and remanded in part. West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991). Upon remand, the trial court again granted summary judgment. The Wests again appeal. This time, we affirm. The Wests’ one point of appeal is that the trial court erred in granting summary judgment, but in their argument this point is divided into two major sub-points and ten minor sub-points. We divide this opinion into two parts. -

I.

In the first proceeding the trial court granted summary judgment in favor of Searle on all of the counts of the complaint. We affirmed the grant of summary judgment and the dismissal of the causes of action for negligence, breach of warranty, and strict liability for defective manufacture or inadequate warning, but we modified the dismissal to a dismissal without prejudice. West, 305 Ark. at 36-37, 806 S.W.2d at 610-11. Our opinion was delivered on March 18, 1991, and the mandate was handed down on April 29, 1991. Consequently, the Wests’ complaint was finally dismissed without prejudice on April 29, 1991.

A dismissal of a complaint on the defendant’s motion is the same as a nonsuit. Carton v. Missouri Pac. R.R. Co., 295 Ark. 126, 747 S.W.2d 93 (1988); Ark. Code Ann. § 16-56-126 (1987). Thus, the Wests suffered a nonsuit on their counts alleging negligence, breach of warranty, and strict liability for defective manufacture or inadequate warning on April 29, 1991. By that date, the statute of limitations had run on all claims. Under section 16-56-126 of the Arkansas Code Annotated of 1987, the “saving statute,” the Wests had one year to commence “new action[s]” or else the causes of action were time barred. See Forrest City Mach. Works v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993). They did not file a new action until July 24, 1992, which was more than fourteen months from the date of the nonsuit. As a result, they were barred from proceeding on these causes of action, and for this reason we affirm the trial court’s ruling dismissing those counts. The trial court dismissed those counts on the merits, but we can affirm a trial court for a reason different than the one given by the trial court. Hubbard v. The Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993).

The Wests argue that their new action was merely an amendment to the original complaint and should relate back to the date of their original complaint. As authority they cite Southwestern Bell Telephone Co. v. Blastech, Inc., 313 Ark. 202, 852 S.W.2d 813 (1993). The cited case affords no help to the Wests. In that case the plaintiff mistakenly sued “Blastech, Inc.” instead of “Blastech Drilling, Inc.” The plaintiff sought to add Blastech Drilling, Inc. as the named defendant and to have the amendment relate back to the date of the original filing of the complaint. The body of the complaint remained the same. We held that pursuant to Rule 15(c) of the Arkansas Rules of Civil Procedure, when “an amendment changes the party against whom the claim is asserted or adds a party after the statute of limitations has run, it may relate back to the time of filing of the original complaint.” Blastech, Inc., 313 Ark. at 205, 852 S.W.2d at 814. The case at bar is vastly different. Here the complaint had been dismissed without prejudice for failure to state a claim, and the Wests had one year to commence a “new action” and state a claim. Ark. Code Ann. § 16-56-126 (1987). A new action had to be filed, as distinguished from merely adding a defendant by amendment, and the new complaint was subject to the provisions of the saving statute.

Accordingly, we affirm the trial court’s dismissal of the causes of action for negligence, breach of warranty, and strict liability for manufacture or inadequate warning.

II.

We did not affirm the dismissal of the count of the complaint alleging defective design, but rather reversed and remanded that count. Upon remand, Searle filed another motion for summary judgment on the count alleging design defect. The trial court ruled that there was no genuine issue as to any material fact and correctly granted summary judgment on this count.

Before strict liability is imposed for a design defect, the plaintiff must show that the product was in a defective condition which rendered it unreasonably dangerous. See Ark. Code Ann. § 16-116-101 (1987); West, 305 Ark. at 41, 806 S.W.2d at 613. The Wests alleged that Ovulen-28 was defectively designed because it had twice the level of estrogen that was necessary for effective birth control. Their proof of this design defect was the statement of Frank M. Sturtevant, Ph.D. that Ovulen-28 contained 100 micrograms of “estrogen” while Demulen, another oral contraceptive, contained only 50 micrograms. However, Searle offered additional evidence by Dr. Sturtevant that these two “estrogens” actually differ in pharmacologic activity, so that the 100 megs, of mestranol in Ovulen-28 is equivalent to the 50 megs, of ethinyl estradiol in Demulen. Dr. Sturtevant explained that mestranol must be converted to ethinyl estradiol to become active as an estrogen. The Wests presented no evidence to show that there is a difference in pharmacologic activity between 100 megs, of mestranol and 50 megs, of ethinyl estradiol. Thus, the trial court correctly held that there was no showing that Ovulen28 was defectively designed so that it was unreasonably dangerous, and we affirm the grant of summary judgment on this count.

The Wests contend that a Food and Drug Administration regulation preempts state law, requiring a warning to the user, Gari West, of the danger of the contraceptive, and that Searle gave no such warning. It is undisputed that Searle did not give a warning directly to Gari West. Even so, and even if the Wests were not to come within the law of the case doctrine on this issue, the argument is without merit. The applicable Food and Drug Administration regulation requires a manufacturer to ship a leaflet or pamphlet to the dispenser which fully informs the patient of the benefits and risks involved in the use of oral contraceptives. See 21 C.F.R. § 310.501(a)-(c) (1993). This was the requirement at the time Gari West was taking the contraceptives. See 41 F.R. 53639 (1976); 43 F.R. 4230 (1978). The duty imposed on Searle was to include this information, using the language required by the Food and Drug Administration, when it shipped the product to the dispenser. “Dispenser” is defined by the Food and Drug Administration as the “pharmacist, physician, nurse, or other person [dispensing the drug].” 43 F.R. 4215 (1978). The responsibility for informing the patient rests with the dispenser. See 21 C.F.R. § 310.501(a). Searle presented evidence that it had complied with these requirements and gave adequate warning to the dispenser, and the medical doctor who dispensed the product stated that he received the warnings. In sum, the trial court correctly granted summary judgment, and we affirm the judgment.

Searle has filed a motion for costs and fees for preparing a supplemental abstract. That motion is denied.

Affirmed.

Glaze, Corbin, and Brown, JJ., dissent.

Robert L. Brown, Justice,

concurring in part, dissenting in part. The majority is correct that the trial court’s dismissal of the causes of action for negligence, breach of warranty, and strict liability for manufacture or inadequate warning must be affirmed due to untimeliness.

I take issue with the affirmance of the dismissal of the defective design count regarding the birth control pill, Ovulen-28. We are dealing with an order for summary judgment. To withstand summary judgment, a party need only show that what is before the court presents a genuine issue of material fact. Ark. R. Civ. P. 56(c). Here, the Wests did that. They proved by the deposition of Frank Sturtevant, Ph.D., a retired Searle employee, that the estrogen levels of Ovulen-28 were high and twice the level of a companion pill, Demulen. In addition, Dr. Dean Kumpuris, a medical doctor, noted in his deposition that a correlation existed between estrogen levels in birth control pills and liver tumors: “. . . but as a general principle, estrogens and birth control pills cause —give you an increased chance of having hepatic adenomas.” Searle argued, based on Frank Sturtevant’s testimony, that in reality the estrogen levels of Ovulen-28 at 100 micrograms and Demulen at 50 micrograms were the same. The majority opinion accepts that. But Sturtevant also revealed that Ovulen28 was removed from the market due to an effort by Searle to replace it with a product with a lower dosage of estrogen. What follows is his testimony on that point:

Q. Is Ovulen-28 or 21 still on the market?
A. No.
Q. When was it taken off?
A. I don’t recall specifically.
Q. Do you know why it was taken off?
A. Yes.
Q. Why?
A. First of all, let me say that Ovulen had 100 micrograms of Mestranol, which is the estrogen.
There had been developing a consensus within the medical community that satisfactory and adequate estrogen dosage of 50 micrograms are lower and resulted in patient acceptance and acceptable efficacy; and, therefore, products with more than 50 micrograms were not necessary.
As a result of that, Searle did not summarily remove Ovulen from the market, but it merely phased it out.
It advised the medical and I believe the pharmacy communities that it was being phased out and no longer manufactured; and it dribbled out.
Q. Did they reduce the amount of estrogen to 50 milligrams?
A. Searle had a product Demulen that had 50 micrograms of a final Estradiol; however, depending upon what target tissues you measure, 50 micrograms of Estradiol would be equivalent to 100 micrograms of Nestranol (sic), which was in the Ovulen. Mestranol must be converted to Estradiol to become active as an estrogen.
So one could say well, there is really no difference between Ovulen and Demulen 150; however, companies were constantly investigating lower and lower doses in different ratios, and it came a point in time where Searle marketed Demulen 135, which has 35 micrograms of a final Estradiol.

This testimony from a retired Searle employee is a far cry from proof that the estrogen levels of Ovulen-28 equated to those of other Searle products or that Ovulen-28 did not contain higher levels of estrogen than other Searle products. Otherwise, why did Searle take pains to reduce its dosage levels to 35 micrograms and remove Ovulen-28 from the market? In short, whether Ovulen-28 was unreasonably dangerous before its removal from public consumption was for a jury to resolve.

I would reverse the order of summary judgment on defective design and remand that issue to the trial court for a trial on the merits.

Glaze and Corbin, JJ., join.


author: Steele Hays, Justice.

text:
    Rick Lee EVANS v. STATE of Arkansas
    CR 93-1316
    878 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Rick Lee Evans was charged with the crime of incest [Ark. Code Ann. § 5-26-202 (Repl. 1993)], in that, being over the age of sixteen years, he engaged in sexual intercourse with his stepdaughter, B.R., between October 1990 and July, 1991. Evans was convicted and sentenced to three years in the Department of Correction. On appeal to this court Evans presents six points for reversal. Finding no error, we affirm the judgment appealed from.

Trial Testimony

The following is an abridgement of the state’s proof:

Michael Ryan, father of the. prosecutrix, testified that he and B.R.’s mother divorced when B.R. was only a few months old; that in July, 1991, his daughter came to his home in Afton, Oklahoma, for a visit. She intended to stay for two weeks. She had been there only three or four days when he came home’and noticed she had been crying. She said Rick had called, he wanted her to come home and if she didn’t he was going to kill himself. Ryan wondered what kind of man would make threats of that kind. That night Evans called again and asked if he could apologize to B.R. Ryan listened on an extension as Evans said he was sorry but then said he wanted her home, that he was lonesome and wanted her there at night to keep him company, that if she did-n’t come home tomorrow he would “blow his brains out.” With that Ryan got on the phone and the two men had a heated exchange.

The episode caused Ryan to wonder whether Evans had molested his daughter. Next day he asked her about it; she denied any molestation, but had “a scared, hurt look, like she was afraid.” With that Ryan resolved to get custody of B.R., he obtained temporary custody that summer and permanent custody in the fall. The following March, Ryan learned Evans had sexually abused her and he reported it to the Department of Human Services.

Carol Anna Helm testified that Michael Ryan was her brother and the two lived a block apart in Afton. Her daughter, Arlena, and her cousin, B.R., were “like sisters.” In early March B.R. was spending the night with Arlena. She heard the girls talking and around midnight Arlena came into her bedroom crying hysterically, urging her to see about B.R. Mrs. Helm found the child on the floor of the dining room in a fetal position crying, “ a crumpled mass of child.” Mrs. Helm asked what was wrong and she said, “Rick raped me.” She rocked the child for several hours and then called her brother to tell him.

B.R. testified that she was then sixteen-years-old and in the ninth grade at Afton. Arlena Helm, her cousin, was her best friend. Her mother had married Rick Evans, now forty-two, when she was seven; that Rick had been good to her, she called him “Dad,” that she had loved him, that he had a temper and had threatened suicide.

B.R. testified Rick saw her looking at her mother’s medical books and he started explaining things about male and female anatomy. He told her that the tip of a man’s penis is “really sensitive if something goes wrong.” These conversations made her feel uncomfortable. In October, around her fourteenth birthday, she was in the bathtub with the door closed. Rick came in and said he’d show her how to wash. She said she already knew how, but he said he would show her better. Taking a washcloth, he washed her neck, back,, buttocks, breast, vagina and “between my vagina.” He gave her more baths, shaved her legs, underarms and vagina. She said she hadn’t needed his help, nor wanted it, but did not know how to tell him to stop. One night after her bath he told her to go to his bedroom and get in bed. He then took off his clothes and engaged in sexual intercourse, removing his penis just before ejaculating. She said this continued on the nights when her mother worked up until July, 1991, when she went to Oklahoma. She testified to sexual intercourse in various positions, with oral sex included. She said that at times he ejaculated inside her, but more often he would take it out before ejaculating. He told her she would not get pregnant because he had had a vasectomy. She said she was afraid to tell her mother for fear that she would not believe her and because she felt it was her fault. She described one time when they were in the living room and Rick sucked on her neck. Next day at school her friends teased her about having a “hickey” and she then saw the mark on her neck.

David Sears testified he was B.R.’s uncle, her mother’s brother; that during a visit he saw the hickey on B.R.’s neck and commented on it and Rick said, “we were just playing around.” Sears spoke to his wife about it because he thought it wasn’t proper.

Detective Joseph Landers introduced a taped interview with Rick Evans recorded on March 22, 1992, and the tape was played to the jury. Evans denied having had intercourse with his stepdaughter, but admitted to having given her baths and shaving her legs and threatening suicide if she did not come home:

Q: When she went to live with her dad I guess this upset you some from what your wife has told me and what B.R. has told me and caused you some problems. Is that right?
A: Caused big problems.
Q: Was there a point there where you threatened to commit suicide if she didn’t come home or ... .
A: I may have in the heat of it said something like . that. I know she knows I wouldn’t. But I was quite upset.
Q: Okay. Well, she told me about a specific telephone conversation between you and her where you told her that you were lonely without her because her mother was gone at night and you needed her back home. And then you threatened to commit suicide if she didn’t come back home. Do you remember that conversation.
A: I don’t remember saying to her well, I’m going to kill myself.
Q: Do you remember the conversation I’m talking about. Does that ring a bell?
A. I remember talking to her, yeah.
Q: Okay. Tell me your version of that conversation.
A: I just asked her if she could come that weekend, which she’d been gone a week, and she agreed to come home. But I told her, I said, I want it to be your decision, not me making you come home.
Q: Is this the same conversation that her father broke in and;... -
A: Yeah.
Q: And interrupted, he was apparently listening on the other end of the phone?
A: I don’t know if he was listening.
Q: Okay. But he interrupted the conversation? In that conversation you don’t remember saying anything like that, that you were lonely without her because mom was gone at night and you needed her there?
A: No, nothing like that.
Q: And that you were going to blow your brains out if she didn’t come home or anything like that?
A: I didn’t say anything like that, either. I didn’t say specifically I was going to commit suicide. I may have said something in a round about way of it that, you know, like, I don’t know, I didn’t know if I c.ould go on if she did decide to leave me, I didn’.t say well, I’m, going to commit suicide.
Q: Well, I’ve got every reason in the world to believe her and every reason in the world not to believe you from what I’ve heard from everybody involved. I’m not saying, you know, that you should be hung for what happened. Okay? I think you’ve got some problems and maybe you need help with those problems. She’s going to need help with the problems she’s got now.
A: I guess I did it to her.

At the end of Detective Landers’s testimony the state and the defense rested.

Rape Shield Statute

Evans requested a pretrial hearing pursuant to the Arkansas Rape Shield Statute, Ark. Code Ann. § 16-42-101 (Repl. 1994). He proposed to introduce evidence that in her initial statement to the police, B.R. denied having had sex with anyone other than her stepfather, whereas a year later she informed the prosecutor that after she had gone to live with her father she had sexual intercourse “about ten times” with someone in Oklahoma.. The state promptly notified the defense of this development and B.R. admitted at the hearing that she had originally lied to the police. At the close of the hearing the following colloquy occurred:

Court: My ruling would be, at least at this point, that the subsequent sexual'conduct of the victim is not relevant and not to be inquired into.
Defense: Okay, your Honor. Is the Court making that ruling pursuant to this particular statute, on the Rape Shield Statute?
Court: I’m making it more as a matter of evidence and relevancy.
Defense: Okay. The Rape Shield Statute is— my understanding of the statute, it covers a particular class of cases, which incest is not in that class of cases.
Court: Right.
State: Your Honor, the Supreme Court has held in carnal abuse and incest cases that the Rape Shield Statute applies, so I don’t see any problem there. I’d refer the Court to —
Defense: I don’t think that’s the law, Judge.
State: Fields v. State, which is a Supreme Court case, 281 Ark. 43, 661 S.W.2d 359. It’s a 1983 Supreme Court case.
Court: Well whether it’s under 16-42-101 or under the general rules of evidence, I don’t think the subsequent sexual conduct of the — well, my ruling is that it is not admissible.

Later in the proceedings, counsel again asked whether the Rape Shield Statute applied to incest cases:

Defense: And the other thing is did the court rule that the Rape Shield Statute applies to incest cases?
Court: No, I didn’t. You’re the one that asked for the hearing.
Defense: I understand that, but I’m asking the Court now to tell me does the Rape Shield Statute cover incest cases.
Court: I’ve ruled that the testimony is not admissible and that’s all I’m saying.

In drafting Ark. Code Ann. § 16-42-101 (Repl. 1994), the legislature specifically listed which offenses were to be included under the statute’s umbrella of protection, and incest is not included. During the hearing, the prosecutor cited Fields v. State, 281 Ark. 43, 661 S.W.2d 359 (1983), for the proposition that the Rape Shield Statute does apply to incest. In Fields, we held that evidence of the victim’s earlier sexual activity was not relevant in a case involving carnal abuse and incest. Carnal abuse is covered by the Rape Shield Statute, but incest is not. Evidently, the Rape Shield Statute’s applicability to incest was not argued in Fields, and we failed to distinguish between the two offenses in that context in deciding the case.

Although the Rape Shield Statute does not purport to include incest within its protective curtain, the issue remains one of relevancy. In this case the trial court held that whether the- victim had sexual relations with someone in Oklahoma after she moved there in July, 1991, and subsequent to the period during which incest was alleged to have occurred, had no relevance to whether she had had sexual relations with the appellant. The virginity of the prosecutrix in a sexual offense is not relevant per se. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). For the same reason, evidence of prior sexual conduct is inadmissible unless it involves the accused and then only if relevant to whether sexual intercourse was consensual. Eskew v. State, 273 Ark. 490, 621 S.W.2d 220 (1981). Since consent is never an issue in the crime of incest, whether this victim had subsequent sexual relations with another and whether she initially admitted or denied such conduct to investigating authorities is entirely collateral. Nothing in her direct testimony at trial was contradictory to her initial statement. Even if we could say there was relevance to this subsequent conduct, giving due deference to the trial court, as we are pledged to do, we cannot say that the probative value of such evidence was not substantially outweighed by the danger of unfair prejudice. A.R.E. Rule 403. Such matters are properly left to the sound discretion of the trial court. Beed v State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Impeachment

During Evans’s cross-examination of the victim, she testified that she did not remember telling the prosecuting attorney that she had sustained abrasions from sliding on a waterbed while Evans was sexually abusing her. Evans claimed that he should have been permitted to call one of two deputy prosecutors to whom the victim allegedly made these statements in order to impeach her credibility.

As the state argues, the question of whether the victim did or did not receive burns from sliding on the waterbed is collateral to the primary issue of whether Evans committed incest. We have consistently held that a witness cannot be impeached by extrinsic evidence on collateral matters brought out on cross-examination. Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987); Powell v. State, 260 Ark. 281, 540 S.W.2d 1 (1976). Therefore, the trial court did not commit error in refusing this request.

Evidence of Appellant’s Fertility

B.R. testified that Evans had told her that she did not need to worry about getting pregnant because he had undergone a vasectomy. Evans contends on appeal that it was error to disallow expert testimony that he was fertile, because such testimony would have questioned why the victim had not become pregnant after months of sexual intercourse with Evans. Any relevance of this proffered testimony is remote, at best, and because it had minimal probative value, to have excluded it from the trial is not error. A.R.E. Rule 103.

Other Evidentiary Rulings

Appellant challenges three evidentiary rulings based on a lack of relevance. We do not reverse rulings on relevance unless we find an abuse of the trial court’s discretion in the matter. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). Evans contends that the trial court erred in not permitting his counsel to delve into the circumstances surrounding the victim’s allegations of incest.

He also argues that he should have been allowed to question B.R. about the contents of a letter the victim received from a boy in Oklahoma, stating in crude language that he wanted to have sex with her. Evans offered the contents of this letter to illustrate that after learning of the letter, he and B.R.’s mother had exerted tighter controls over her and for this reason, he argues, she had levelled the incest charges against him. Evans did not have the letter itself, he simply wanted to use its contents. Clearly, the contents of this letter were hearsay and the trial court did not err in its ruling.

Evans submits it was error for the trial court to refuse to permit counsel to ask B.R., “In fact, you don’t love your mother any more, do you?” This question was intended to show that the incest charges against Evans were the result of B.R.’s anger against Evans and his wife. But, as the state explains, the child’s relationship with her mother was adequately explored during the trial. She testified that she became upset when her mother did not take her for visitation on one occasion, and that she cried when her mother left her, adding, “I loved my mom then.” What is relevant evidence and what is cumulative or prejudicial lies in the discretion of the trial court. Loy v. State, 310 Ark. 33, 832 S.W.2d 499 (1992); In Qualls v. State, 306 Ark. 283, 812 S.W.2d 681 (1991), we wrote:

The trial courts ruling on relevancy is entitled to great deference and will be reversed only if the Court abused its discretion. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990).

No abuse of discretion by the trial court has been shown in these rulings.

For the reasons stated, the judgment is affirmed.

Glaze, J., concurs.