author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice, Per Curiam. John I. Purtle, Justice,

text:
    STERLING DRUG, INC. v. Charles G. OXFORD
    87-172
    743 S.W.2d 380
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988
    [Supplemental Opinion on Denial of Rehearing April 4, 1988.]

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: M. Stephen Bingham, for appellant.

      Ronald G. Naramore, Bryan Reis, and Q. Byrum Hurst, for appellee.

       Purtle, J., dissents; Dudley, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

This is an outrage and wrongful discharge action. Jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(o).

From 1963 until October 31,1983, the appellee, Charles G. Oxford (“Oxford”), was employed under a contract for an indefinite term by what is now the National Laboratories Division of Lehn and Fink Industrial Products Division, Inc., a division of the appellant, Sterling Drug, Inc. (“Sterling”). In 1984 Oxford filed suit against Sterling alleging that through acts of its agents, Sterling had engaged in a systematic campaign from January of 1982 until August of 1983 designed to force Oxford’s resignation because it believed that he had reported Sterling to the General Services Administration (“GSA”) for submitting false information during GSA contract negotiations. The jury received instructions on both wrongful discharge in violation of the public policy of the state and outrage. It returned a general verdict in favor of Oxford for compensatory damages in the amount of $201,700,000 and punitive damages in the amount of $150,000.00. The circuit court denied Sterling’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We reverse the judgment of the trial court and remand for further proceedings on the wrongful discharge claim.

Don Dunston (“Dunston”), a former Sterling employee and Oxford’s supervisor, testified at trial that Ray Mitchell, president of Lehn and Fink Industrial Products Division, Inc., stated in October of 1981 that he believed Oxford had reported Sterling to the GSA for pricing violations. As a result of these violations, Sterling paid $1,075,000.00 to the federal government in a 1984 settlement. It was in October of 1981 that Sterling advised Oxford that his position, manager of contract sales, would be eliminated as of January 1,1982, due to a company reorganization. In February of 1982, Oxford accepted a position as district sales manager, the lowest position in the National Laboratories Division hierarchy, for an area in east Texas.

Dunston also testified that he wrote an “EEO” letter to Oxford on January 29, 1982, at the request of Bill Milliron (“Milliron”), a former Industrial Products Division executive. An “EEO” letter is a nickname for a letter used to set an employee up for termination. Dunston recalled that he had told Milliron it was not the time to deal with Oxford in this manner because he was under severe pressure due to a recent divorce. The letter carefully detailed various day to day responsibilities for Oxford, one of which was conducting floor care demonstrations five nights a week after business hours. Dunston later criticized Oxford repeatedly about his job performance in these assigned responsibilities. Dunston acknowledged that his actions followed the company procedure outlined by Milliron to document an employee termination and that he had written an “EEO” letter only twice before, one to another regional manager and one to a district manager. Both men resigned under pressure.

At trial, Oxford denied that he had reported Sterling to the GSA. Oxford also testified that Dunston reprimanded him for acts he had not done and that he was not given the stock he had won in a company sales contest. Additionally, he stated that because of his employment conditions, he left his territory in August of 1983 without receiving prior approval from Sterling. Oxford did not return to work, and Sterling discharged him on October 31, 1983.

I. OUTRAGE

Sterling argues that there is no substantial evidence in the record to support a jury verdict for outrage. One is subject to liability for outrage if he or she willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct. M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). In Counce we stated, “By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.” The employer in Counce discharged an employee supposedly because her services were no longer needed. After her termination, the employer told the employee that she would have to take a polygraph test in connection with a money shortage at the store before the company would release her last paycheck. Even though she passed the test, the employer deducted $36.00 from her paycheck as her share of the missing money. We found that there was a material issue of fact as to whether the employer’s conduct was extreme and outrageous.

In Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984), an employer interrogated an employee, whom it suspected of theft, at thirty minute intervals for most of a day, denied him valium when he was under obvious stress, and threatened him with arrest. In holding there was substantial evidence to support the jury verdict for outrage, we placed special emphasis on the fact that even though the employer knew of the employee’s lower than normal emotional stamina, it refused to permit him to take his medication during the interrogation.

In Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), cert. denied, 475 U.S. 1036, 106 S. Ct. 1245 (1986), Treece, a police officer, sued Hess, the Little Rock City Director, for outrage. Hess, who was angry with Treece over a personal matter, conducted surveillance of Treece, communicated to other individuals that he would have Treece fired at any cost, and apparently made false reports concerning Treece’s employment conduct. Basing our decision in part on the fact that Hess’ actions continued over a two year time span, we found there was substantial evidence to support the jury verdict for outrage.

Sterling’s conduct continued over an eighteen month period. In addition, there is ample evidence that agents of Sterling knew that Oxford was under severe pressure because of a recent divorce. Nevertheless, Sterling’s conduct did not rise to a sufficient level to support a verdict for outrage. It was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.” Counce, supra. The recognition of the tort of outrage does not open the doors of the courts to every slight insult or indignity one must endure in life. Tandy, supra. We must reverse the trial court judgment as to the outrage cause of action.

II. WRONGFUL DISCHARGE

Sterling contends that the trial court erred in instructing the jury as to wrongful discharge in violation of the public policy of the state since there is no such cause of action in Arkansas. We have repeatedly held that when an employee’s contract of employment is for an indefinite term, either party may terminate the relationship without cause or at will. Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982). We recently modified the employment-at-will doctrine to provide that where an at-will employee (one employed for an indefinite term) relies on a personnel manual or employment agreement that expressly states that he or she cannot be discharged except for cause, the employee may not be arbitrarily discharged in violation of such a provision. Gladden v. Ark. Children’s Hosp., 292 Ark. 130, 728 S.W.2d 501 (1987).

In Scholtes v. Signal Delivery Service, Inc., 548 F. Supp. 487 (W.D. Ark. 1982), Judge H. Franklin Waters assessed the state of Arkansas law concerning the employment-at-will doctrine. He stated:

[W]e have no hesitancy in concluding that Arkansas law would recognize at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state.

In Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984), the employer allegedly fired an at-will employee because she would not “sleep” with her foreman. The court held that the employee’s complaint stated a cause of action for wrongful discharge in violation of the public policy of Arkansas. The court found that if the allegations were true, the public policy of the state was contravened because “[a] woman invited to trade herself for a job is in effect being asked to become a prostitute.”

In Counce, supra, we acknowledged that we might recognize an exception to the at-will doctrine if an employee is “discharged for exercising a statutory right, or for performing a duty required of her by law or that the reason for the discharge was in violation of some other well established public policy.” In Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984), we noted the judicial trend of other states in softening the at-will rule either by finding an express or implied agreement for a specified period of employment or by imposing a duty on an employer not to discharge an employee arbitrarily or in bad faith but did not find it necessary to explore the issue.

An increasing number of other state courts have granted an exception to the employment at-will doctrine for employees who have been discharged in contravention of the public policy of the state. Some jurisdictions have permitted wrongful discharge actions where an employer terminated an employee for refusing to violate a specific statute. Petermann v. International Brotherhood of Teamsters, 174 Cal. App. 2d 184, 344 P.2d 25 (1959) (refusing to commit perjury); Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 610 P.2d 1330, 164 Cal. Rptr. 839 (1980) (refusing to engage in a scheme to fix retail gasoline prices); Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 710 P.2d 1025 (1985) (refusing to commit an act which might violate indecent exposure laws); Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985) (refusing to pump bilges into coastal waters). Courts have also allowed actions for employees discharged for exercising a statutory right. Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) (filing a workers’ compensation claim); Midgett v. Sackett-Chicago, Inc., 105 Ill. 2d 143, 473 N.E.2d 1280 (1984), cert. denied, 472 U.S. 1032 (1985) (filing a workers’ compensation claim); Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443, 168 Cal. Rptr. 722 (1980) (engaging in union activities). Other jurisdictions have held that an at-will employee may not be fired for complying with a statutory duty. Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213 (1985) (obeying subpoena requiring appearance at a hearing); Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978) (serving jury duty); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (serving jury duty).

The Supreme Court of New Hampshire in Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), created an expansive exception to the employment-at-will doctrine by holding that an employer wrongfully discharged an employee when it fired her for refusing to “go out” with her foreman. The court stated, “[A] termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not in the best interests of the economic system or the public good and constitutes a breach of the employment contract.” The court later construed Monge to apply “only to a situation where an employee is discharged because he performed an act that public policy would encourage, or refused to do that which public policy would condemn.” Howard v. Dorr Woolen Co., 120 N.H. 295, 414 A.2d 1273 (1980).

In Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), an employer fired a salesman because it wanted to avoid paying him certain sales bonuses. The Supreme Judicial Court of Massachusetts held the employer liable for wrongful discharge. Following New Hampshire’s lead in Monge, the court implied a covenant of good faith and fair dealing into every employment contract.

A few courts have permitted a cause of action for at-will employees discharged for protesting their employer’s violation of state or federal law. In Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), the Supreme Court of Connecticut held that an employee stated a cause of action for wrongful discharge when he alleged that he had been fired for insisting that the employer comply with state food labelling and licensing laws. In Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978), the Supreme Court of Appeals of West Virginia held that the employee’s complaint stated a cause of action for wrongful discharge where the employer fired the employee for attempting to induce the employer to comply with state and federal consumer credit and protection laws.

A very small number of jurisdictions have allowed a wrongful discharge claim where an employer terminated an at-will employee for reporting or threatening to report violations of state or federal law to the authorities. In Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985), an employee alleged that he had been fired for reporting a shipment of adulterated milk to health authorities after his supervisors ordered him to deliver it. The court found that “whistle blowing” to protect the health and safety of the citizens of California was exactly the type of conduct that the Supreme Court of California protected in Tameny, supra. The Court of Appeals of Oregon in McQuary v. Bel Air Convalescent Home, Inc., 69 Or. App. 107, 684 P.2d 21, cert. denied, 688 P.2d 845 (Or. 1984), held that a nursing supervisor stated a cause of action for wrongful discharge when she asserted that she had been terminated for threatening to report patient abuse to state authorities.

In Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981), the Supreme Court of Illinois held that an employee stated a cause of action for retaliatory discharge where the employer allegedly fired him because he offered to testify and gather evidence against another employee suspected of criminal activities. The court, noting a precise definition of the term “public policy,” surveyed cases from other states and found that where a matter strikes at the heart of a citizen’s social rights, duties, and responsibilities, a cause of action for wrongful discharge has been allowed. The court stated, “There is no public policy more basic, nothing more implicit in the concept of ordered liberty than the enforcement of a State’s criminal code. . . . Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy.”

In Wagner v. City of Globe, 150 Ariz. 82, 722 P.2d 250 (1986), a probationary police officer was allegedly discharged for informing the local magistrate that a prisoner was being held illegally in the city jail. The Supreme Court of Arizona held that if the officer’s assertions were true, he had stated a valid cause of action for wrongful termination in violation of an important public policy of the state. The court found that “whistle blowing” to expose illegal or unsafe conduct should be encouraged and protected when it serves the public good.

We are now squarely faced with the decision of whether or not to recognize the public policy exception to the employment-at-will doctrine. Following our lead in Counce, supra, we acknowledge that an employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Therefore, we hold that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interests. Wagner, supra.

In making this exception, we must resolve the question of whether a public policy exception case sounds in contract, tort, or both. The overwhelming majority of these actions have sounded in tort. Palmateer, supra; Wagner, supra. Petermann, supra, is one of the few public policy exception contract cases (California now recognizes a tort cause of action. Tameny, supra.). Cases implying a covenant of good faith and fair dealing generally have been contract actions. Fortune, supra; contra Gates v. Life of Montana Ins. Co., 205 Mont. 304, 668 P.2d 213 (1983). New Jersey recognizes that both theories are appropriate in public policy wrongful discharge actions. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980).

Only one state, Wisconsin, has made a deliberate decision to adhere to an exclusive contract view. Brockmeyer v. Dun & Bradstreet, 133 Wis. 2d 561, 335 N.W.2d 834 (1983). We find this decision to be pragmatic and well reasoned. Since a public policy discharge action is essentially predicated on the breach of an implied provision that an employer will not discharge an employee for an act done in the public interest, a contract cause of action is most appropriate. Id. The exclusive contract approach strikes a fair balance in that it provides employees with protection from employer retaliation, while at the same time limiting recovery to contract remedies. If an employer’s conduct in breaching a contract of employment is sufficiently egregious or extreme, the employee can still claim tort damages on a cause of action for outrage. For these reasons, we adopt the exclusive contract approach.

It is generally recognized that the public policy of a state is found in its constitution and statutes. Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S.W.2d 257 (1957). Ark. Code Ann. § 5-53-112 (1987) provides:

(1) A person commits the offense of retaliation against a witness, informant, or juror if he harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of witness, informant, or juror.
(2) Retaliation against witnesses, informants, or jurors is a class A misdemeanor.

Ark. Code Ann. §5-53-112 illustrates that there is an established public policy favoring citizen informants or crime fighters. In order to further the public good, citizens of the state should be encouraged to report illegal activity. We find that the public policy of the state is contravened if an employer discharges an employee for reporting a violation of state or federal law.

In a 1984 settlement agreement, the United States contended that Sterling had submitted false and incomplete pricing data and other pertinent information during the negotiation of GSA contracts. It alleged that this conduct was a violation of the False Claims Act, 31 U.S.C. §§ 3729-31 (1983). Pursuant to this agreement, Sterling paid $1,075,000.00 to the federal government.

A constructive discharge exists when an employer intentionally renders an employee’s working conditions intolerable and thus forces him to resign. Harris v. Wal-Mart, 658 F. Supp. 62 (E.D. Ark. 1987). It exists only when a reasonable person would have resigned under the same or similar circumstances. Id. There is sufficient evidence that Sterling engaged in a continuous campaign to force Oxford’s resignation because it believed he had reported Sterling to the GSA for pricing violations and that a reasonable person would have resigned under the same or similar circumstances. We find that a jury verdict for wrongful discharge is supported by substantial evidence.

In making its determination, the jury utilized a general verdict form. We cannot ascertain if it based its verdict for Oxford on the claim of outrage or wrongful discharge or both. Since the issue of outrage was improperly submitted to the jury, we cannot affirm the judgment of the trial court. See Elk Corp. of Ark. v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987); Carrigan v. Nichols, 148 Ark. 336, 230 S.W. 9 (1921). Accordingly, we reverse and remand for further proceedings on the wrongful discharge claim.

III. ISSUES ON REMAND

Since this case will be remanded, we will address other issues that Sterling has raised and issues that are likely to arise on retrial. In remanding to the trial court, it is necessary we resolve what the measure of damages will be in a public policy exception action.

When an employee for a fixed term is wrongfully discharged, the measure of damages is computed according to when the case is tried. If the trial occurs before the expiration of the contract term, the employee is entitled to recover lost wages up until the day of trial. Seaman Stores v. Porter, 180 Ark. 860, 23 S.W.2d 249 (1930). If it occurs after the expiration of the term, the measure of damages is the amount of agreed wages for the term. Id. Under both calculations, the damage award is reduced by the sum of wages the employee actually earned or could have earned with reasonable diligence in other employment during the contract term. Id.; see also Western Grove School Dist. v. Strain, 288 Ark. 507, 707 S.W.2d 306 (1986).

In comparison, it is inherently difficult to fix damages for the wrongful discharge of an employee who is employed for an indefinite term since the duration of the contract is uncertain. A number of courts have awarded future damages for the breach of an employment contract not having a fixed term. Kerr v. Gibson’s Products Co. of Bozeman,_Mont.__, 733 P.2d 1292 (1987). These courts commonly base prospective awards on various factors such as the number of years that the employee has been working for the company, the average seniority at the company, and number of years the employee intends to stay with the company. Panhandle Eastern Pipe Line Co. v. Smith, 637 P.2d 1020 (Wyo. 1981). This approach is too speculative and uncertain. We conclude that the sum of lost wages from termination until the day of trial less the sum of any wages that the employee actually earned or could have earned with reasonable diligence is the general measure of damages in a public policy wrongful discharge action. In addition, an employee can recover for any other tangible employment benefit lost as a result of the termination. Future damages are not recoverable.

Sterling argues that the trial court erred in refusing to allow its economic expert to testify as to the income Oxford earned from the sale of real estate holdings for the purpose of mitigating damages. In 1984 and 1985, the two years subsequent to Oxford’s termination, he sold the balance of the real estate holdings that he had acquired during his employment with Sterling. The amount of damages to which Oxford is entitled is reduced only by the sum he actually earned or could have earned in other employment. Seaman, supra. Since the income he earned from the sale of his real estate holdings was not earnings or wages from other employment, the trial court did not err.

Sterling also contends that the trial court erred in denying its motion in limine which sought to exclude evidence of the federal government audit and negotiated settlement concerning the pricing violations. In the absence of an abuse of discretion, we will not reverse a trial court’s ruling that the probative value of evidence is not substantially outweighed by the danger of unfair prejudice. Kelley v. Wiggins, 291 Ark. 280, 724 S.W.2d 443 (1987); Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983). The evidence of the audit and settlement was relevant in that it corroborated the testimony of Oxford that he was forced to resign for reporting Sterling to the federal government for pricing violations in Sterling’s contract with the GSA. The probative value of the evidence was not substantially outweighed by the danger of unfair prejudice under Ark. R. Evid. 403. The trial court properly admitted the evidence.

IV. MOTION FOR COSTS AND ATTORNEY FEES

Oxford has filed a motion on appeal for costs and attorney fees alleging that the deficiency of Sterling’s abstract necessitated the filing of a supplemental abstract. Sterling has moved to strike Oxford’s supplemental abstract arguing that Oxford overly emphasized or selectively highlighted excerpts of the transcript in an improper manner. Ark. Sup. Ct. R. 9(e)(1) provides in pertinent part as follows:

If the appellee considers the appellant’s abstract to be defective, he may, in his printed brief, call the deficiencies to the court’s attention and, at his option, may submit a supplemental abstract. When the case is considered on its merits the court may impose or withhold costs to compensate either party for the other party’s non-compliance with this Rule.

Rule 9(e)(1) authorizes reimbursement to an appellee only where there has been a clear-cut and demonstrable failure by the appellant to properly abstract matters essential to a full consideration of the issues raised on appeal. Arkota Industries, Inc. v. Naekel, 274 Ark. 173, 623 S.W.2d 194 (1981). Sterling’s abstract is a complete 300 page condensation of the record. It is not defective but rather in compliance with Rule 9(e)(1). Therefore, we deny Oxford’s motion for costs and attorney fees.

Oxford’s supplemental abstract consists primarily of passages which Sterling had previously condensed in its abstract. Although these passages are not necessary for a full consideration of the issues on appeal, they are not prejudicial or improper. We deny the motion to strike.

Reversed and remanded.

Hickman and Hays, JJ., would reverse and dismiss.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion is well written and well reasoned, with a few minor exceptions. First, the result is wrong; I think this case should be affirmed. The evidence fully supports both outrage and wrongful discharge. There is substantial evidence to support the verdict on either action. The opinion says one thing but does another.

There was evidence before the jury that the appellee had exercised his right and duty as a citizen to inform the government that the appellant was cheating in its business with the government. The appellant paid a million dollars to the government as a result of its conduct being reported. Although the appellee denied being the one who reported the appellant’s illegal conduct, he was nevertheless singled out for outrageous treatment under the belief that he was the one who reported the fraud to the government. It seems to me that this is exactly the situation we had in mind when we first recognized the tort of outrage in M.B.M. Co. Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). Moreover, Ark. Code Ann. § 5-53-112 (1987) makes it illegal for any person to retaliate against an informant by harming or threatening to harm him or another by any unlawful act in retaliation for anything lawfully done by the informant.

The allegations and proof demonstrated that the appellant violated the law in at least two respects. There is no suggestion that the appellee’s alleged conduct was illegal. Whistle blowers are usually right but they also usually get the bad end of the deal, as in this case.

Every person has the duty to conform his conduct to the local and national laws. Any good citizen having knowledge that a corporation is cheating the government has a duty to report such conduct. By reversing the judgment on the tort of outrage this court is in effect punishing the appellee for the alleged performance of his duty as a citizen. There is no need to point out additional evidence of the appellant’s conduct which constituted the tort of outrage because such facts are stated adequately in the majority opinion.

Certainly the conduct complained of in this case went well beyond the conduct found to be actionable in Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), where there was no evidence whatsoever that Hess violated any law. Apparently the majority finds some sort of distinction between the conduct of Hess, lasting two years, and the conduct of the present appellant, lasting only eighteen months. I have found nothing in any decision to indicate that the duration of the conduct is required to last for any particular length of time. It is the outrageous conduct itself which gives rise to the cause of action. The duration is a matter to be considered in awarding damages.

I agree with the statement quoted by the majority that “[A] termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not in the best interests of the economic system or the public good and constitutes a breach of the employment contract.” However, I cannot agree with limiting the recovery in public policy wrongful discharge actions to contract damages. The majority admits only one other state holds such a view.

747 S.W.2d 579

To limit the recovery of damages for wrongful discharge to backpay is almost beyond belief. Employers exposed to no more liability than this will feel free to retaliate and discriminate at will without fear of penalty for their wilful and intentional conduct. On the other hand an unemployed individual, without prospect for a job, will scarcely be noticed by the system. The conduct by the employer in this case caused the appellee embarrassment, humiliation, physical and mental problems, and severe financial losses. None of these elements of damage are recoverable under the majority decision. Recovery limited to back wages is woefully inadequate to compensate for the damages resulting from wrongful discharge.

The opinion itself demonstrates the inherent difficulties in limiting damages for wrongful discharge to loss of wages and “other intangible employment benefits.” The cost of winning a suit limited to this recovery effectively denies most employees any relief. The majority states all the reasons this judgment should be affirmed and then turns right around and reverses it.

It makes no difference whether the appellee was, in fact, the person who reported the appellant to the government. There was no justification for the humiliation and wrongful discharge of the appellee. Such conduct by the appellant should not be condoned by this court under any theory.

Supplemental Opinion on Denial of Rehearing

April 4, 1988

Per Curiam.

Petition for rehearing is denied.

Purtle, J., dissents.

Dudley, J., would grant rehearing.

John I. Purtle, Justice,

dissenting. I agree with the petitioner and amicus curiae that we should reconsider our opinion in this case and grant rehearing. Several independent attorneys, the Arkansas Trial Lawyers Association, and the AFL/CIO have joined in this impressive brief filed in support of the petition for rehearing. Their arguments are very persuasive.

The outstanding characteristic of the opinion in this case is that it clearly requires employees to suffer considerably more outrageous conduct by employers than is required of non-employees. This is a distinction not previously made by any court so far as I can determine. It is a result argued by no one and sought by no one.

I agree with petitioner that this court erroneously substituted its own view of the facts for that of the jury. The evidence presented to the jury concerning the employer’s conduct toward this petitioner showed that the employer:

1. communicated the false message to other employees that the appellant blew the whistle on their overcharges to the government causing the company to pay over $1,000,000 in penalties or fines;
2. demoted him from highest paid sales position to that of a beginning salesman and transferred him to an especially created sales area in Texas;
3. wrote a letter to him setting up his termination (This typed letter had been used to get rid of others);
4. repeatedly and falsely accused him of misconduct when they knew he was under severe stress;
5. refused to issue stock he had earned;
6. sent him on many false sales leads;
7. made unauthorized deductions from his salary or commission;
8. threatened to sue him;
9. placed him under surveillance by other employers;
10. continued this type of conduct for eighteen months; and
11. admitted its conduct was intended as “harassment.”

That’s only eleven of the overt acts directed at the appellant. What course of action short of physical violence could be more outrageous? Obviously the appellee desired to inflict this humiliation and embarrassment upon the petitioner in order to get even with him because they thought he was a “whistle blower.”

The tort of outrage was described by this court in Growth Properties v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984), where we stated:

[T]he essence of the tort of outrage is the injury to the plaintiffs emotional well-being because of outrageous treatment by the defendant. If the conduct is sufficiently flagrant to give rise to tort, then the injury the law seeks to redress is the anguish itself and it need not rest, parasitically, on more demonstrative loss or injury. . . . [T]he argument confuses the intent to cause suffering with the intent to do an act from which suffering can be expected to result. The former may be maliciously intended while the latter may be merely the result of conscious indifference to the consequences. But even the latter, if sufficiently wanton, will sustain the award.

These words defining the tort of outrage describe well the activities of the employer in this case. In fact, the acts of the appellant in this case go beyond the wrongful acts in every case where we have recognized this tort.

“Wrongful discharge” by its very terms is a “tort.” If based upon contract the suit would be for damages for breach of contract or for specific performance. Every charge in the complaint and every pleading and the judgment in this case relate to a tort. As if by “plain error” this court reached back into the past, pulling out an archaic ruling from the only jurisdiction so holding, to declare for the first time ever that this “tort” is a “contract”. I agree with petitioner that: “For this court to adopt an exclusive contract remedy for wrongful discharge and then make the measure of damages back pay [up until] trial would not merely put Arkansas in a distinct minority but would, in fact, make it by far the most regressive state in protecting workers and the public welfare.”

We should reconsider our opinion and grant a rehearing in order that our laws and decisions relating to the tort of outrage and the employment-at-will doctrine remain intact. It is not necessary to overrule any precedent or construe any statute to reach the just and fair result of granting rehearing.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    ARKANSAS DEPARTMENT OF PARKS AND TOURISM, Parks Division, Richard W. Davies, Director v. RESORT MANAGERS, INC.
    87-177
    743 S.W.2d 389
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Steve Clark, Att’y Gen., by; Thomas S. Gay, Deputy Att’y Gen., and Rick D. Hogan, Asst. Att’y Gen., for appellant.

      Mathis & Mathis, for appellee.
   Darrell Hickman, Justice.

The chancery court of Clark County set aside an arbitration award, finding that it was obtained by “undue means.” When the Arkansas Department of Parks and Tourism decided not to renew its lease agreement with Resort Managers, Inc., to operate the lodge at DeGray State Park, the parties agreed to arbitrate some remaining differences. The arbitrators awarded the Department of Parks $65,939.52 as damages or entitlements under the agreement the department had with Resort. Resort filed suit in chancery court to set aside the award. The chancellor found that the department had used undue means to obtain the award by misrepresenting money spent for recarpeting, cleaning, and painting the lodge. The court vacated the award, and the department appeals.

We find no evidence of fraud, corruption, or other undue means; rather, a dissatisfied party who simply did nothing, offered no evidence or argument, made no objections during the arbitration process, and now seeks a retrial of the matter. The arbitration process exists largely to prevent litigation. The judgment is reversed.

The appellee, Resort Managers, Inc., operated the lodge at DeGray State Park under a five year renewable lease, which was to expire December 31, 1985. The department decided not to renew Resort Managers’ lease because they were dissatisfied with the management of the lodge. Instead, the department decided in May of 1985 that the state should take over the management. Resort Managers was notified of the decision, and in August 1985 the parties agreed to submit certain disagreements to arbitration. The “agree to disagree” list was prepared by the appellants and presented to the appellee in January 1986. The main dispute centered on the condition of the lodge, that is, whether certain damages to the buildings were normal wear and tear or caused by neglect or abuse by Resort Managers.

In accordance with normal practice, each party selected an arbitrator, and they, in turn, selected a third arbitrator. Resort Managers selected Coy Theobalt, the department selected Billy Franks, and the neutral was John Aulgur. At the arbitration meeting on February 24, 1986, the department presented a worksheet it had prepared, representing money it claimed for replacing, repairing, painting, or cleaning various items at the lodge.

The appellee presented no evidence and did not challenge any evidence or figures submitted by the department for the cost of replacing the carpet, cleaning the kitchen, and repainting the lodge. The arbitrators toured the facility looking at all the areas in dispute, conferred, and finally awarded the state $65,000, which included 60% of the claimed damages to the carpet, 50% of the cost of cleaning the kitchen and 100% of the painting costs and 70% of the labor.

The appellee was surprised by the award and filed suit in chancery court to modify or correct it. The appellee alleged that one or more members of the arbitration panel was confused regarding exactly which carpet was to be replaced and that the department misled the panel because nothing had actually been spent for carpet. In fact, only one estimate had been obtained for the replacement of the carpet. The appellee further alleged that the department misrepresented that it had spent $ 16,000 to clean the kitchen and other areas, when in fact it had used state employees to do the work. It was alleged that it cost the department no actual money for the labor. The same allegation was made regarding $12,974 that was spent for painting the lodge.

Richard W. Davies, Director of State Parks, testified that the arbitration worksheet was not made available to the appellee prior to arbitration because Mr. A’Hearn, the appellee’s manager, did not ask for it. He said folders were available with supporting documents for the amounts noted. He said the department wanted to be able to document every claim; no attempt was made to hide any information.

After the award, Davies said that A’Hearn remarked that he thought $24 a yard for carpet was high; he also remarked that the paint was cheap and that perhaps a better grade would have saved more. Davies said, however, that A’Hearn had asked for nothing at the arbitration.

A’Hearn disputed nothing before the arbitrators’ decision. In fact, he conceded that he did nothing to prepare for the arbitration. He said he received the list of items the parties had agreed to disagree on January 10, 1986. He said he did not prepare because he felt most of the items were obviously normal wear and tear, which he would not be responsible for. He said “I did absolutely nothing until after the arbiters reached a decision because, frankly, I went into shock at the arbitration .... I made no effort to find any flaws or faults with the arbitration worksheet prior to the arbitration itself, because I kept wanting to get this over with.” He conceded that he did not make the rounds of the premises with the arbitrators. He testified that his company did not clean the premises as they usually did once a year, because their lease was being terminated.

The main basis of Resort Managers’ claim of “undue means” is an arbitrators’ worksheet prepared by the department for the arbitration meeting. Attached is a copy of the first page with notes that were evidently made by the arbitrators.

It is undisputed that no one, arbitrators or A’Hearn, asked the department to explain any of these figures. It was obvious that the old carpet was still in place, because the damage was viewed by the arbitrators. It would not be unreasonable to assume the $58,000 figure was an estimate rather than an expenditure. The parties knew that the state would be taking over the lodge. In fact, the state took possession of it in January 1986. It would not be unreasonable to assume that all the parties knew state employees had been cleaning the lodge. Is money paid to state employees not money expended?

We find no evidence of fraud, corruption, or undue means and no other basis to set aside the award, although some mistakes of fact may have been made. (The appellee argues that one area should not have been recarpeted because the carpet was only one year old. The department concedes that it did not realize a more expensive carpet was used for the estimate than that already in place.) If an arbitration award can be set aside easily, then one of the main purposes of arbitration is thwarted, and that is, to avoid litigation.

In Dean Witter Reynolds Inc. v. Deislinger, 289 Ark. 248, 711 S.W.2d 771 (1986), we said:

In Arkansas arbitration is strongly favored by public policy and is looked upon with approval by courts as a less expensive and expeditious means of settling litigation and relieving congestion of court dockets. McEntire v. Monarch Feed Mills, Inc., 276 Ark. 1, 631 S.W.2d 307 (1982). We have recently addressed the weight to be given an arbitration award in Wessell v. Crossett Public School Dist. #52, 287 Ark. 415, 701 S.W.2d 99 (1985). There we stated: ‘The decision of the arbitration board on all questions of law and fact is conclusive. [Citations omitted.] The court shall confirm an award unless grounds are established to support vacating or modifying the award.’

Arkansas generally follows other state courts in discouraging setting aside arbitration awards. We have adopted the Uniform Arbitration Act, and it provides that an award can be vacated if it can be proved that it was procured by “corruption, fraud or other undue means.” Ark. Stat. Ann. § 34-522 (Supp. 1985). We have not yet interpreted “undue means,” but do not hesitate to adopt an interpretation generally used.

[U]ndue means . . . means something akin to fraud and corruption. “Undue means” goes beyond the mere inappropriate or inadequate nature of the evidence and refers to some aspect of the arbitrator’s decision or decision-making process which was obtained in some manner which was unfair and beyond the normal process contemplated by the arbitration act.

Seither & Cherry Co. v. Ill. Bank Bldg. Corp., 95 Ill. App. 3d 191, 419 N.E.2d 940 (1981). In Shearson Hayden Stone, Inc. v. Liang, 493 F. Supp. 104 (N.D. Ill. 1980), the court said:

The courts, however, appear to interpret ‘undue means’ in conjunction with terms ‘corruption’ and ‘fraud’ found in section 10(A) and thus ‘undue means’ requires some type of bad faith in the procurement of the award.

There are certain ground rules for reviewing arbitration awards.

The object of arbitration is to avoid the formalities, delay and expenses of litigation in court. Judicial review of an arbitrator’s award is more limited than appellate review of a trial court’s decision. [Cites omitted.] Whenever possible, a court must construe an award so as to uphold its validity and gross errors of judgment in law or a gross mistake of fact will not serve to vitiate an award unless these mistakes or errors are apparent on the face of the award. [Cites omitted.] Likewise, a mere allowance of too little or excessive damages will not raise a presumption of fraud in and of itself.... Even if it could be shown that the arbitrator used the wrong basis to calculate the award, a party would not be entitled to relief under section 12.

Seither & Cherry Co. v. Ill. Bank Bldg. Corp., supra.

Mistakes of fact or law are not a basis to set aside an award. In Rural Water District No. 6 v. Ziegler Corp., 9 Kan. App. 2d 305, 677 P.2d 573 (1984), the Kansas court quoted from Coleman v. Local No. 570, 181 Kan. 969, 317 P.2d 831 (1957):

Thus, the fact that the arbitrator made erroneous rulings during the hearing, or reached erroneous findings of fact from the evidence, is no ground for setting aside the award, because the parties have agreed that he should be the judge of the facts. Even his erroneous view of the law would be binding, for the parties have agreed to accept his view of the law. Were it otherwise in either of these cases, arbitration would fail of its chief purpose; instead of being a substitute for litigation, it would merely be the beginning of litigation. Error of law renders the award void only when it would require the parties to commit a crime or otherwise to violate a positive mandate of the law.

See also Shearson Hayden Stone, Inc. v. Liang, supra, and 6 C.J.S. Arbitration § 92 (1975). A party to an arbitration proceeding cannot wait until the award is made and then complain about something that could have been questioned or discovered during the process. Pawlicki v. Farmers Ins. Co., 618 P.2d 1096 (Ariz. App. 1980).

While a mistake may have been made regarding the carpet, it was not akin to fraud or corruption. A question by anyone could have clarified the matter. Resort Managers made no objections and offered to prove nothing. They agree to be bound by arbitration, had their hearing, and should be held to the decision. Every objection now raised by the appellee could have been raised at the arbitration proceeding; all information discovered later could have been discovered then. Instead A’Hearn did not ask one single question, nor make any objection until after the process was over, and he was shocked by the award. The trial court simply made the mistake of allowing the appellee to retry his case in court, which he had agreed not to do.

Reversed.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Larry Thomas MITCHELL v. STATE of Arkansas
    CR 87-62
    742 S.W.2d 895
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988
    [Rehearing denied February 22, 1988.]

      Sexton, Kirkpatrick, Nolan, Vanwinkle & Caddell, P.A., by: Sam Sexton, Jr., for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.

      Hays, J. would grant rehearing.

   Darrell Hickman, Justice.

Larry Mitchell was convicted of first degree murder and sentenced to life imprisonment. Mitchell killed a friend of his, Ronald Sisk, when the two of them were drinking one evening in Mitchell’s home in Fort Smith. The central issue in the case is the entry of Mitchell’s residence by the police without a search warrant. When Corporal Danny Honeycutt of the Fort Smith Police Department opened the front door and looked into the Mitchell residence, he violated the Fourth Amendment to the United States Constitution. Consequently, all evidence seized or gained as a result of the entry has to be excluded from evidence. This does not include all the evidence, and the state may retry Mitchell.

First, we discuss the events leading up to the entry. The Fort Smith Police Department received the following telephone call at 10:44 a.m. on April 6, 1983:

A (Police): Fort Smith Police Department. Sgt. Adams.
W (Caller): Uh. Yes. I’d like to report something I’m not supposed to know. You need to go to 3408 Wilma, Short Wilma, and there is a man dead there.
A. What is he dead from, do you know?
W. I just heard that someone had shot a guy last night and that’s him. Everybody has left it. That is all I am saying but I feel sorry for a man being dead in that house all night.
A. OK, Uh could you tell me how you found out?
W. I overheard it. That’s all I’ll tell you right now.
A. You won’t leave your name or anything?
W. No__
A. Well, could you tell me who you heard the — done it? I mean . . .
W. No, because they’ll tell you.
A. Who will tell us? Ma’am?
W. They’ll tell you. I’m not supposed to have heard it. I don’t want to get into it.
A. Well, I know, you know.
W. They have talked to their lawyers.
A. If we had somebody . . .
W. Listen, they are talking to their lawyers and they are going to tell you but so far nothing has been done but the man is dead. He is there on the couch.
A. OK. OK, now could you tell me. Start a car towards 3408 Short Wilma. Could you could you tell me the man’s name because maybe they won’t come forward and we are going to have to be looking.
W. I’ll make sure. I’ll make sure that they do. I promise. I will make sure if it is not told I will come forward.

During the call, Sgt. Adams dispatched Officer Larry Bunn to 3408 Short Wilma Street.

About the same time, Sgt. Danny Honeycutt radioed in for instructions, and the following conversation transpired.

H (Honeycutt). Let me talk to Kenneth Adams.
O (Officer). What is it this lady called in and we are supposed to have somebody who has been shot.
H. Where at?
O. 3408 Short Wilma.
H. At 3408 Short Wilma.
O. Uh-huh. I just told Larry Bunn, he was standing here. He has gone across to see if he could get a hold of 13 and go out there and check it.
H. 3408 South Wilma.
O. No, Short Wilma.
H. Short Wilma. OK. Thank you.

Honeycutt investigated and found no such residence as 3408 Short Wilma. Instead he went to nearby Wilma Street, which had a residence numbered 3408. Honeycutt testified that he walked onto the porch, knocked on the door, and received no response. He rang the doorbell a few times, still received no response, walked around the residence, spotted a neighbor and went to talk to him. He asked the neighbor if he had seen or heard anything that morning like shots, or someone leaving the house. The neighbor said he had heard nothing and Honeycutt returned to the porch as Sergeant Curtis Balch and Officer Larry Bunn arrived at the scene. Balch joined Honeycutt on the porch and Honeycutt tried the door. He found it unlocked, turned the knob, and pushed the door inward until it was caught by a chain. (The chain became controversial later. By the time Detective Caldwell arrived, the chain was broken, but no one admits breaking it. Honeycutt, though, indicates that it was intact when he opened the door.) Honeycutt stated that he had about a foot of vision into the house, and that he could see a couch and what appeared to be a body wrapped in a blanket on the floor in front of the couch. Honeycutt called into the house at that point, and someone yelled to the effect that they were all asleep and to “get the hell out.” The two officers jumped off the porch with Balch yelling something like “come out with your hands up where we can see them.” The officers did not identify themselves as policemen. Officer Bunn went to the back of the house and yelled that he thought someone was coming out of the back. Honeycutt ran to the back yard, and Mitchell, who is disabled and walks with a cane, had apparently exited from a back window and was limping away. (There was no back door.) Officer Bunn yelled at him to stop, which Mitchell did. Mitchell was then placed under arrest and taken to the police station.

After his arrest, but while the parties were still in the back yard, Detective David Caldwell arrived. He approached the other officers and was told by Honeycutt that there was a body on the floor in front of the couch, that the person may have been shot, and was possibly still alive. Caldwell said he opened the front door and found that the chain was attached to the door but was only draped over the wall bracket. He said he picked up the chain, undraped it from the wall bracket, opened the door, and entered the house. He said he checked the body. Finding the person dead, he then searched the house thoroughly for several hours. He had no search warrant. Besides the body, he found a .22 shell casing and a footstool; both were introduced as eviderice. No murder weapon was found at the time.

The trial court found the search and seizure legal, commenting that even if it was improper, the evidence would have been seized eventually and would be admissible under the inevitable discovery rule. This rule provides that despite unlawful police conduct, evidence should be admitted if it would have been inevitably discovered by lawful means. Nix v. Williams, 467 U.S. 431 (1984). The state must prove the “inevitable discovery” would have occurred by a preponderance of the evidence. In Nix the evidence established that independent searchers were approaching the actual location of the body, and that the search would have been resumed had the respondent not led the police to the body. The evidence would have inevitably been found. Here, the state offered no evidence of an independent search at the time the police unlawfully entered the residence. We can only speculate that the body would have been discovered. Therefore, the search cannot be upheld under this theory.

The warrantless entry into the Mitchell home clearly violated the fourth amendment’s prohibition of unreasonable searches. (It matters not that the door was unlocked and the officer slightly opened the door to peek inside.)

To enter a residence or a private dwelling without a search warrant, two things must be present: probable cause and exigent circumstances. First, we deal with probable cause; that is, probable cause to believe that an offense has been or is being committed. Michigan v. DeFillipo, 443 U.S. 31 (1978). What is probable cause, or reasonable cause as A.R.Cr.P. Rule 14.3 provides? In Brinegar v. U.S., 338 U.S. 160 (1948), the court said:

[I]t has come to mean more than bare suspicion: Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.

See also Rowland v. State, 262 Ark. 785, 561 S.W.2d 304 (1978); Perez v. State, 260 Ark. 438, 541 S.W.2d 915 (1976).

Recently, in Illinois v. Gates, 462 U.S. 213 (1983), the court emphasized that the probable cause standard is a “practical, nontechnical conception,” quoting:

‘The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.’

The court remarked that:

As these comments illustrate, probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. . . . Rigid legal rules are ill-suited to an area of such diversity. ‘One simple rule will not cover every situation.’

In Gates the court abandoned the prior rigid rule for determining probable cause, which was established in Spinelli v. United States, 393 U.S. 410 (1969), and Aguilar v. Texas, 378 U.S. 108 (1964), and adopted instead a “totality of the circumstances” test. The court remarked that an anonymous letter standing alone probably would not provide a sufficient basis for probable cause, noting that the letter provided virtually nothing from which one might conclude that its author was honest or his information reliable. The anonymous telephone call in this case is even less revealing.

Applying these principles to the facts before us, we ask: “Did Officer Honeycutt have probable cause to believe a felony had been committed in this house when he opened the door?” Regardless of what he personally knew, he is charged with the collective knowledge of the police department at the time. Perez v. State, supra. The police had received an anonymous phone call that a shooting had occurred at a certain address and that the person was dead. The caller emphasized that her concern was that the dead person was simply being allowed to remain in the house. There was no information conveyed that would lead one to believe that the person might still be alive, or that anyone else was in danger. The identity of the caller was anonymous; one could only speculate as to the reliability of the caller. See Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987), where we held that unverified, anonymous telephone calls cannot provide probable cause.

Furthermore, Honeycutt found that the reported address did not exist. He went to a different street with an identical number and knocked on a door. Getting no response, he inquired of a neighbor and learned no information that would indicate he had the correct house. Indeed, the neighbor indicated that he had not seen or heard anything. At this point, without a warrant, Honeycutt had no probable cause to believe a crime had been committed in this residence.

The constitution grants no privilege to the police to enter private homes without a search warrant except in well defined circumstances. Homes must remain closed to officers of the law until they have legal justification to open them.

In Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court said:

As the Court reiterated just a few years ago, the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’

It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.

Having determined that there was no probable cause here, we could stop our discussion, but the question of probable cause is closely interrelated to the question of the existence of exigent circumstances. The state contended below and argues to us that an emergency existed. What are exigent circumstances which will permit a search without a warrant? “Exigent” is defined as “requiring immediate aid or action.” Webster’s Third New International Dictionary (3d ed. 1981). See also United States v. Hicks, 752 F.2d 379 (9th Cir. 1985). While there is no definitive list of what constitutes exigent circumstances, there are several established examples. One of the most common examples involves the risk of removal or destruction of evidence. See Arkansas v. Sanders, 442 U.S. 753 (1979). Another involves danger to the lives of the police officers involved or the lives of others. Warden v. Hayden, 387 U.S. 294 (1967). In addition, the hot pursuit of a suspect has been held to constitute exigent circumstances. United States v. Haynie, 637 F.2d 227 (4th Cir. 1980), cert. denied, 451 U.S. 972(1981). None of these situations existed in this case. The strongest argument made by the state is that someone might be seriously injured in the house.

While Officer Honeycutt says that he opened the door to make sure the “body” was not alive, his entry was based on the anonymous phone call, which emphasized that the person in the residence was dead and had been for some time. Therefore, Honeycutt was simply not justified in thinking the person might still be alive. Cf. Ortega v. State, 669 P.2d 935 (Wyo. 1983). A common sense evaluation of the phone call could only lead to the conclusion that no one was in need of medical attention. Additionally, there was no danger to anyone until after the illegal entry was gained. If the police thought they had the right place and feared the removal or destruction of the body, they could have stationed officers nearby to prevent that while they obtained a warrant.

The police do not have a right to enter a residence to investigate the scene of a murder. The United States Supreme Court specifically rejected this idea in Mincey v. Arizona, 437 U.S. 385 (1977). In rejecting this exception to the requirement of a warrant, the court recognized the importance of the police’s ability to respond to emergency situations, and pointed out that the fourth amendment does allow a warrantless entry and search when the police reasonably believe that someone within a residence is in need of immediate aid. However, as the court also pointed out, allowing warrantless searches of a murder scene would lead to allowing warrantless searches of all crime scenes. While this would simplify criminal investigations, it would not justify disregarding the fourth amendment. The state was unable to prove any exigent circumstances existed in this case.

Since the entry of Mitchell’s home was illegal, all the evidence seized as a result of that intrusion must be excluded. If Honeycutt had not discovered a body in the house, Mitchell would not have fled and been arrested; likewise, Detective Caldwell would not have entered the home that morning, and his intensive search would not have occurred. Therefore, the evidence obtained, the shell casing and footstool, should have been suppressed. Mitchell’s statement must also be suppressed since it, too, was obtained as a direct result of the illegal entry. Wong Sun v. U.S., 371 U.S. 471 (1963). The murder Weapon, a .22 caliber pistol, and a hand grenade may be used' against Mitchell on remand. They were properly seized later when Mitchell’s brother called the police and surrendered the itéms.

Mitchell’s brother was the only other witness to the killing, but neither side called him to testify. Mitchell eventually testified at trial, once his statement and the evidence against him were admitted. His testimony did not depart dramatically from his statement to the police. Mitchell, his brother, and Ronald Sisk were sitting in the Mitchells’ living room, talking and drinking until the early hours of the morning. Sisk was an old friend of Mitchell’s, and the two had not seen each other in almost seven years. Sisk had been telling the Mitchell brothers about his new job teaching people how to use hand grenades and other similar weapons. Mitchell said Sisk told them he was going to teach people to “exterminate with extreme prejudice.” Sisk had had a hand grenade displayed earlier in the evening, playing with it, and had asked to look at the Mitchells’ gun. At some point, after midnight, when they were drunk and apparently dozing off, Mitchell says he heard Sisk say “exterminate with extreme prejudice.” He looked up, and Sisk had a hand grenade and was pulling the pin out. Mitchell says his only thoughts were that he and his brother were about to be killed, so he reached for the gun and shot Sisk in self-defense. He claims that he had no other choice. The jury obviously rejected his story and found him guilty of first degree murder.

The remaining issues in this case will not likely arise at another trial. Mitchell’s attorney tried to get the results of a trace metal test introduced through the wrong witness; he did not lay a proper foundation. The state asked a question and made a remark about Mitchell’s brother’s version of what happened. Undoubtedly, the state will have to call the brother to testify at a retrial, and these questions will not arise again.

Reversed and remanded.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I see the issue as simply whether police conduct in opening the door as far as the chain latch would permit, with no actual entry, was unreasonable under the circumstances. Rabinowitz v. United States, 339 U.S. 556 (1950).

It is clear that police powers are broader in emergency situations. Katz v. United States, 389 U.S. 347 (1967); United States v. Rabinowitz, supra. Those situations include saving lives and preserving evidence. Hence, the emergency doctrine is said to encompass the doctrine of “hot pursuit.” Warden v. Hayden, 387 U.S. 294 (1967).

The police action in this instance can be defended on either ground. While the anonymous caller may have assumed the victim was already dead, her message was ambiguous, indicating that she knew “just that someone had shot a guy last night and that’s him.” Whatever her assumption may have been, the police are not limited to inferences that would thwart prompt action, especially when experience teaches that on occasion people thought to be dead, are not. See Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), for example. Officer Honeycutt testified that his purpose in opening the door was to determine if the victim was, in fact, dead. The majority opinion effectively denies the victim the benefit of any doubt. I believe the officer was justified under the law in taking the simple expediency of opening an unlocked door so far as its latch would permit. A.R.Cr.P. Rule 14.3. Had Ronald Sisk been still alive the propriety of the police action would hardly be questioned. I fail to see why we should adopt a rule that discourages, rather than promotes, timely methods by the police to safeguard society. Other jurisdictions have not been hesitant to hold accordingly. Ortega v. State, 669 P.2d 935 (Wyo. 1983); State v. Epperson, 571 S.W.2d 260 (Mo. 1971); State v.Hardin, 90 Nev. 10, 518 P.2d 151 (1974); People v. Brooks, 7 Ill. App. 3d 767, 289 N.E.2d 207 (1972). I would affirm the trial court.


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

text:
    Melvyn BELL and Darlene Bell v. Rory McMANUS
    87-214
    742 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988
    [Supplemental Opinion on Denial of Rehearing February 29, 1988.]

      Tripper Cronkhite, for appellants.

      Howell, Price Trice, Basham & Hope, by: Carey E. Basham and Dale Price, for appellee.
   John I. Purtle, Justice.

During the trial the court dismissed appellant Melvyn Bell as a plaintiff and subsequently granted a judgment notwithstanding the verdict that set aside the jury award of punitive damages to appellant Darlene Bell. The appellants argue four points for reversal: (1) the trial court erred in holding that compensatory damages must be awarded in order to sustain an award for punitive damages; (2) the trial court erred in dismissing Melvyn Bell’s cause of action because he was not present at the trial; (3) the trial court erred in holding that there was no substantial evidence of compensatory or nominal damages; and (4) the trial court erred in not granting appellants’ motion for a new trial. We do not find prejudicial error and therefore affirm the action of the trial court.

The appellants filed a complaint in the circuit court which alleged that appellee masterminded the burglary of their home by two teenagers who stole $7,400 worth of their personal property. The complaint asserted that the appellee’s actions were intentional, malicious, criminal, and constituted not only a trespass, but the intentional infliction of emotional distress which insulted the appellants’ property and sense of well being.

At the trial Mrs. Bell testified that “we were appalled that it happened. We felt violated and very angry. We have always worked for everything we’ve had and to have someone else, who doesn’t want to work, come in and steal from us is not a very good feeling to be violated like that.” There was no other material testimony relating to damages for trespass or outrage. The trial court dismissed Mr. Bell’s cause of action because he was not present at trial.

The court instructed the jury on the tort of outrage without objection. The appellants offered their own version of AMI 2201, which would have allowed the jury to consider as elements of damage the fair market value of the property stolen, and the infringement of the Bells’ rights to maintain their home and property without being violated by intruders. The court modified the proposed compensatory instruction by instructing the jury to compensate Mrs. Bell only for any mental anguish experienced by her in the past. The jury was also instructed on punitive damages.

The jury returned a verdict signed by nine members, which stated:

We, the jury, find for the plaintiff, Darlene Bell, and assess her damages as follows: compensatory -0-; punitive, $3,700.00.

The trial court refused appellants’ motion for judgment on the verdict. The court granted the appellee a judgment notwithstanding the verdict and denied the appellants’ motion for a new trial.

The first argument advanced by the appellants questions the trial court’s holding that punitive damages cannot stand in the absence of an award of compensatory damages. They argue that the cases hold that punitive damages depend upon a showing that compensatory damages have been suffered rather than that compensatory damages were awarded. We are of the opinion that such argument attempts to draw a line too thin to follow.

The court’s instruction on the tort of outrage provided that Mrs. Bell had the burden of proving that she suffered damages and that appellee wilfully and wantonly engaged in extreme and outrageous conduct which proximately caused her damages in the nature of emotional distress. The instruction was proper.

Although there was evidence of a trespass, no such instruction was offered by appellants. The appellants presented their case to the jury on the tort of outrage and the jury simply found that Mrs. Bell had not suffered compensatory damages. In the absence of an award for damages for the underlying cause of action, punitive damages are improper. Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979); and Kroger Grocery & Baking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876 (1946).

In M.B.M. Co. v. Counce, 268 Ark. 269, 280, 596 S.W.2d 681 (1980), we defined the tort of outrage: “One who by extreme and outrageous conduct willfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress.”

Appellant’s second argument is that the trial court erred in dismissing Mr. Bell’s cause of action. In Growth Properties v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1986), several children and their spouses were awarded compensatory and punitive damages caused by the tort of outrage when the defendant trespassed upon the gravesites and vaults of the plaintiffs’ deceased parents. We affirmed the trial court in all but one of the awards. In reversing the award of compensatory and punitive damages in favor of a child who did not appear and testify at trial, we stated:

[D]amages for the mental suffering that results from the tort of outrage cannot be justified on behalf of one who is a party in name only. Don Cannon did not appear at the trial and it was error to award damages for emotional distress in the absence of specific proof. . . . [M]ental anguish may not be inferred on behalf of someone who fails to testify concerning his own experience.

We do not agree with appellant’s assertion in his third argument that the trial court set aside the jury verdict because there was no substantial evidence relating to compensatory or nominal damages. Rather, the trial court vacated the verdict because there was no award for compensatory damages. Even if nominal damages had been awarded, it still would not have supported an award of punitive damages. Growth Properties, supra; Stoner, supra.

The trial court considered the appellee’s motion for a JNOV and the appellants’ motions for judgment on the verdict or, in the alternative, for a new trial at the same time. See ARCP Rule 50(c)(1). The court granted appellee’s motion and denied both motions of the appellants. Appellants’ motion for a new trial in the present case was based upon the argument that the verdict was too low (ARCP Rule 59(a)(5)) and contrary to a preponderance of the evidence and contrary to law (ARCP Rule 59(a)(6)).

Whether to grant a new trial is a matter within the sound discretion of the trial judge and its decision will not be reversed unless there is a showing of abuse of discretion. Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987). It is more difficult to demonstrate an abuse of discretion when a new trial has been granted because there is less basis for a claim of prejudice by one who has the benefit of a new trial than by one who has been denied a new trial. Adams v. Parker, 289 Ark. 1, 708 S.W.2d 617 (1986). A trial court may not substitute its judgment for that of the jury unless the verdict is clearly contrary to a preponderance of the evidence. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 657 (1986).

745 S.W.2d 140

Therefore, we hold that the trial court properly granted appellee’s motion for a JNOV because the verdict was contrary to law inasmuch as the verdict failed to award compensatory damages to support the punitive damages which were awarded. Nor do we find an abuse of discretion by the trial court in denying appellants’ motion for judgment on the verdict or in denying their motion for a new trial because the verdict finding that no compensatory damages were suffered by Mrs. Bell was not clearly against the preponderance of the evidence.

In deciding these motions, the trial court had to decide if the verdict was clearly against the preponderance of the evidence or was contrary to the law. The court did not make specific findings of fact and conclusions of law. The judgment stated that that part of the verdict awarding punitive damages without an award of compensatory damages could not stand. Obviously the trial judge considered whether the verdict was clearly contrary to a preponderance of the evidence. The trial court determined that that part of the verdict which found that Mrs. Bell suffered no compensatory damages was not clearly erroneous.

Affirmed.

Supplemental Opinion upon Denial of Rehearing

February 29, 1988

John I. Purtle, Justice.

In their petition for rehearing the appellants state that this court misstated their third argument for reversal when we stated: “We do not agree with appellants’ assertion in their third argument that the trial court set aside the jury verdict because there was no substantial evidence relating to compensatory or nominal damages.” They are right. The third argument was: “The trial court erred in holding that there was no substantial evidence of compensatory or nominal damages to submit to the jury.” Having stated their argument correctly, we refuse to grant a rehearing because there was no substantial evidence that required the giving of the appellants’ requested instruction on damages.

The A.M.I. 2201 instruction offered by the appellants contained the following elements of damages:

(1) The fair market value of their personal property immediately before the occurrence;
(2) Any mental anguish or sense of outrage experienced by them in the past or reasonably certain to be experienced by them in the past or reasonably certain to be experienced in the future;
(3) The infringement of their right to have their home secure and free from intruders;
(4) The infringement of their right to have possession of their personal property, regardless of its value.

The court amended this instruction by submitting only one element to the jury, as follows:

[1] Any mental anguish experienced by her in the past.

The proffered elements were either incorrect statements of the law or were not supported by substantial evidence.

Petition denied.


author: John I. Purtle, Justice.

text:
    Jeffery ROSE v. STATE of Arkansas
    CR 87-22
    742 S.W.2d 901
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Smith & Drake, by: Mark D. Drake, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was charged with capital felony murder pursuant to Ark. Stat. Ann. § 41-1501(l)(a)(c) (presently codified as Ark. Code Ann. § 5-10-101 (Supp. 1987)), and after a jury trial was sentenced to life without parole. For reversal he argues three points: (1) that the trial court erred in refusing to suppress his custodial confession; (2) that the court erred in allowing the testimony of a witness by telephone; and (3) that the court erred in refusing to grant a continuance. Finding prejudicial error in allowing the confession to be introduced into evidence, we reverse the conviction and remand for a new trial.

The facts are not in material dispute. A double murder occurred near Eudora in Chicot County, Arkansas, the bodies of the victims being discovered in the afternoon of December 2, 1985. The only information the police had connecting the appellant to the murders was that over the weekend the appellant and the victims had been seen together. On Saturday, November 30, 1985, about 2 p.m., one of the victims was arrested for DWI and released the car to the appellant. About 1 a.m. on December 1, 1985, appellant, co-defendant Whitaker, and an unidentified subject were seen in the decedent’s car. The vehicle was discovered burned in the late afternoon or evening of December 2,1985, in a gravel pit east of Lake Village, Arkansas.

About 6:00 p.m. on December 2, 1985, Officer Farris was informed that the sheriff wanted appellant and Whitaker brought in for questioning. No warrant had been issued nor had a probable cause hearing been held. The officer contacted the appellant and Whitaker at their house sometime between 8:00 p.m. and 9:00 p.m. and requested that they go to the Eudora Police Department with him. After arriving at the Eudora Police Department the sheriff notified his deputy to bring the suspects to Lake Village. At Lake Village the appellant was locked up in a holding cell and given his Miranda rights. The appellant testified that at that point he felt he was under arrest and could not leave the jail. The jailer testified he would not have released the appellant from the holding cell if appellant had so requested and that appellant knew he was not free to leave. Sometime after 10:00 p.m. the sheriff arrived at the Lake Village jail where the appellant was still being held in a locked cell.

The sheriff did not remember the exact time he started talking to appellant, but he did remember that no inculpatory statement was given during the first interrogation. At the direction of the sheriff the appellant was returned to the holding cell and ordered to change into prison clothing. The sheriff then questioned Whitaker from 12:20 until 1:15 a.m. on December 3, 1985. After talking to Whitaker, the sheriff again sent for the appellant. The sheriff stated: “I talked to him [appellant] the second time from 2 a.m. until 3 a.m. That is when he told me about his involvement in the case.” The statement given at this time was used as evidence at the trial.

We have held many times that probable cause to arrest without a warrant exists when the facts and circumstances within the collective knowledge of the officers and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense had been committed by the person arrested. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986); see also Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). At the time the appellant was arrested there was no showing of anything beyond suspicion that he might be involved. Acting on this suspicion, the sheriff simply ordered these two men brought in for questioning. A seizure pursuant to an arrest or any other detention that severely intrudes upon a person’s liberty must either be supported by probable cause or by clear and positive testimony that demonstrates consent. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). At the time of the custodial statement the circumstances known to the police amounted only to a suspicion that did not rise to the level of probable cause.

Having decided that the appellant was illegally detained, we must now decide whether his inculpatory statements meet the Fifth Amendment voluntariness standard as well as whether they were sufficiently free acts as to purge from them the primary taint of the violation of his interests under the Fourth Amendment. Custodial statements are presumed involuntary and the state bears the burden of demonstrating their admissibility. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). The state must prove that the custodial statement was voluntary and had no causal connection with the illegal detention. Roderick v. State, supra.

The appellant argues the statements were inadmissible because they were “fruits of the poisonous tree” as defined in Wong Sun v. United States, 371 U.S. 471 (1963),and its progeny. The United States Supreme Court considered a situation quite similar to the present appeal in Brown v. Illinois, 422 U.S. 590 (1975), where Brown, the accused, was taken into custody for investigative purposes without warrant or probable cause. The officers wanted to question Brown in connection with a murder. They went to his apartment and waited for him to arrive. While waiting they broke into his apartment and searched it and upon his arrival, about 7:45 p.m., he was arrested and told he was suspected of the murder of Roger Corpus. After Brown was taken into custody he accompanied the officers in a search to locate another suspect. They returned to the police station about 12:15 a.m. the following morning, and Brown was again placed in the interrogation room. He was given coffee and left alone, for the most part, until about 2 a.m., when the state’s attorney arrived and again gave him his Miranda rights before commencing an interrogation. Brown subsequently made additional inculpatory statements.

The Illinois Supreme Court acknowledged that Brown had been taken into custody without warrant or probable cause for his arrest and concluded that the arrest was unlawful. However, the Illinois court found the confession given after 2 a.m. was a sufficiently free act on the part of Brown to purge the primary taint of violation of a Fourth Amendment right. The Illinois Supreme Court stated:

We conclude that the giving of the Miranda warnings in the first instance by the police officers and in the second by the assistant State’s Attorney serves to break the causal connection between the illegal arrest and the giving of the statements, and that defendant’s act in making these statements was “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” (Wong Sun v. United States, 371 U.S. 471 at 486).

However, the United States Supreme Court reversed the Illinois court and stated:

The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test.

In discussing what the Bhown court called “the crossroads of the Fourth and Fifth Amendment,” the Court gave four basic considerations for determining the admissibility of custodial confessions made while illegally detained. The four basic considerations are: (1) the giving of Miranda warnings; (2) the temporal proximity of the arrest and confession; (3) the presence of intervening circumstances; and particularly (4) the purpose and flagrancy of the official misconduct.

Under the circumstances of this case it is clear that the appellant was arrested without probable cause. He was originally detained for investigative purposes only. Before he made the inculpatory statement he had been at least twice locked in a jail cell while waiting to be interrogated by the sheriff. At sometime after he voluntarily left his residence with the officers he was no longer free to leave if he had chosen to do so. It is undisputed that at the time he gave the statement he was seized within the meaning of the Fourth Amendment.

The state established that the appellant was given the Miranda warnings several times. Therefore, the first part of the four-pronged test was met by the state.

As for the second factor, it is clear that the appellant began making incriminating statements approximately four or five hours after his initial detention. In Taylor v. Alabama, 457 U.S. 687 (1982), the United States Supreme Court held that the causal connection between the illegal arrest and subsequent confession was not broken by the fact that the defendant confessed six hours after his arrest. Therefore, the time between the appellant’s arrest and his confession does not of itself remove the taint of the illegal arrest.

The third factor requires the consideration of any intervening circumstances. The appellant was not confronted by the police with any newly discovered evidence, nor was he visited by friends or family before his confession. The suspect in Taylor had been in police custody for six hours unrepresented by counsel, questioned on several occasions, fingerprinted, and subjected to a lineup. Considering that the appellant in the instant case was under similar custodial pressure without the benefit of counsel, was subjected to questioning and a breathalyzer test, and was ordered into prison clothing, we do not find any intervening factors which would serve to break the connection between the arrest and confession. See Brown, supra.

The fourth factor, the purpose and flagrancy of official misconduct, is entitled to special weight. Brown. The sheriff did not attempt to obtain an arrest warrant and acting without probable cause had his deputy pick up the appellant and lock him in a holding cell for several hours. Such conduct did not comply with the requirements of A.R.Cr.P. Rule 2. Apparently the purpose of holding the appellant and Whitaker was to question them alternatively until one of them confessed or until some other fact implicating them was discovered. Although there was good reason to suspect the appellant was involved in these murders, the officers should have continued the investigation until probable cause was developed, at which time a warrant could have been issued. Failure to adhere to established Constitutional standards cannot go unnoticed. Shortcuts on Constitutional rights cannot be tolerated.

Of the four factors to be considered, only the fact that the Miranda warning was given weighs in favor of a finding that the appellant’s statements were not connected to his illegal detention. A finding of voluntariness for purposes of the Fifth Amendment is merely a threshold question for Fourth Amendment analysis. Lanier v. South Carolina, 474 U.S. 25 (1985). The fact that a confession may be “voluntary” for Fifth Amendment purposes is not by itself sufficient to purge the taint of an illegal seizure in violation of the Fourth Amendment. Taylor v. Alabama, supra. Moreover, the compulsion inherent in custodial surroundings must be considered when deciding whether such custodial statements were obtained through exploitation of the illegal arrest.

The Supreme Court in Taylor reaffirmed the “poisonous fruit” doctrine established in Wong Sun v. United States, supra, and followed in Brown v. Illinois, supra; Dunaway v. New York, 442 U.S. 200 (1970); Miranda v. Arizona, 384 U.S. 436 (1966); and Terry v. Ohio, 392 U.S. 1 (1968). We have held that a confession obtained as a result of an illegal arrest which cannot be justified under the Leon “good faith” exception to the exclusionary rule must be suppressed under the Wong Sun poisonous tree principle. Stewart v. State, 289 Ark. 272, 711 S.W.2d 787 (1986). Realizing that each case must be decided on its own facts, we have determined that there were no attenuating circumstances sufficient to break the causal connection between the illegal seizure of the appellant and the giving of the statements. To approve the introduction of these statements would encourage illegal seizures because the officers would know that evidence derived from such illegal action could nevertheless be used as evidence at the trial of the case. As the Supreme Court stated in Brown: “Fourth Amendment violations would be eviscerated by making the warrant, in effect, a ‘cure-all’ and the constitutional guarantee against unlawful search and seizure could be said to be reduced to a ‘form of words.’ ” Given the “pressure atmosphere” existing during the time the appellant was locked up, and the lack of probable cause, the statements were inadmissible and their introduction constituted prejudicial error.

We need to briefly address the argument that it was error to take the testimony of an officer by telephone. The officer had been present during the interrogation of the appellant and at the time the confession was made. The appellant had requested in writing that all officers present at the time of the alleged confession be present at the suppression hearing. Subsequent to the investigation of the murder the officer had terminated his employment in Chicot County and joined the United States armed forces. The trial court allowed the officer to testify at the suppression hearing by long distance telephone.

Relying on Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985); and Earl v. Smith, 272 Ark. 5, 612 S.W.2d 98 (1981), the state argues that the telephone testimony should have been allowed because the witness was unavailable at the time of the hearing. We do not agree because the record does not show that the witness was unavailable as defined in Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986). There are no provisions under the Arkansas law or rules which allow the taking of a witness’ testimony by telephone. The testimony of the officer was not admissible in this case.

The final argument that the trial court should have granted a continuance is now moot.

Reversed and remanded.

Hickman, J., concurs.


author: Robert H. Dudley, Justice.

text:
    Jimmy SCHERRER v. STATE of Arkansas
    CR 87-80
    742 S.W.2d 884
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      James Clouette, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant, Jimmy Scherrer, was convicted in the trial court of capital murder and was sentenced to life imprisonment without parole. We affirm the judgment of conviction. This case was tried separately, and appealed separately, from the case of Johnny Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988), also decided today.

Debbie Watts, the murder victim, was a teacher who had the additional duty of recruiting students for the Dumas Adult Education Center. At about one o’clock on the afternoon of September 18,1985, she left the Center on a recruiting trip and never returned. Three days later her body was found in a bayou a few miles from Dumas. Her hands and feet were bound, her throat had been cut, and she had been raped. Terry Harrison and Johnny Scherrer were subsequently arrested and charged with her murder. Harrison gave statements to the police which implicated the appellant and also a fourth young man, Billy Ivey. Harrison subsequently pleaded guilty to the murder of Miss Watts and, as a result, was declared an accomplice as a matter of law in the case at bar. Appellant argues that the trial court erred in refusing to also declare Billy Ivey an accomplice as a matter of law. If Ivey were an accomplice as a matter of law in this case, there would be no independent corroboration tending to connect appellant with the murder, see Ark. Code Ann. § 16-89-111 (e)(1), replacing Ark. Stat. Ann. § 43-2116 (Repl. 1977), and we would be required to reverse and dismiss. However, the trial court correctly refused to declare Ivey an accomplice as a matter of law and properly submitted the issue to the jury for its finding.

Appellant contends that the trial court erred in refusing to declare Ivey an accomplice for five reasons: First, he argues that there was testimony Ivey aided in the victim’s abduction by helping Harrison hold her car window down. While Harrison indicated at trial that appellant helped him hold the window down, Ivey denied doing so. Further, the crime laboratory could not identify the fingerprints on the victim’s car window as being Ivey’s. Thus, there was a factual dispute for the jury to decide. Second, appellant argues that there was testimony Ivey participated in the rape. Appellant is mistaken. There was no such testimony at trial. Although Harrison had made a prior out-of-court statement to that effect, at trial Harrison stated that Ivey had not raped Miss Watts. Again, there was a factual dispute for the jury to decide. Third, appellant asserts that Ivey would not discuss the case until he was granted immunity from prosecution. While the record does not clearly reveal whether Ivey was in fact granted immunity, our law is clear that even if it was granted, the grant of immunity alone does not cause a witness to be an accomplice as a matter of law. Johnson v. State, 259 Ark. 773, 536 S.W.2d 704 (1976). Fourth, appellant points out that Ivey was undisputedly present at the scene of the crime. However, mere presence at the scene of a crime does not make one an accomplice. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). Fifth, appellant argues that even though Ivey was on the scene at the time the crime was committed, he did not report it to the police. We have held that the failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Spears v. State, supra.

Since there was a factual dispute concerning Ivey’s involvement, the trial court correctly refused to declare him an accomplice as a matter of law and properly submitted the matter to the jury. The jury’s finding that he was not an accomplice is binding. Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980).

For his second assignment of error appellant argues that the trial court erred in admitting into evidence an in-custodial statement which he made to Donald Moore, a Dumas policeman. At trial Moore testified that another officer, who had been making a cell check, told him that appellant wanted to talk to him. Moore testified that he walked back to the cell, and the appellant asked him for a soft drink. Moore left the cell, got appellant a soft drink, returned, and handed appellant the drink. At that time, appellant asked what he was being charged with. Moore replied he was being charged with murder. Then appellant asked, “what does Terry say about it.” “Terry” is Terry Harrison, who later pleaded guilty to the murder. Moore stated that he told the appellant that Harrison had said that Johnny Scherrer, appellant’s cousin who was tried separately for the murder, cut her throat. Moore testified that after he told appellant that Harrison had implicated appellant’s cousin, the appellant responded, “no, Johnny didn’t do it, Terry did.” The appellant had been read his Miranda rights the day before. The trial court correctly admitted the statement.

A defendant’s spontaneous statement, although made in police custody, is admissible against him. Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). As we explained in Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980):

It was police misconduct that was intended to be inhibited by Miranda, . . . and its progeny and not the making of incriminating statements. Statements which do not result from in-custody interrogation are not barred . . . Spontaneous, voluntary and unsolicited statements made when an accused, although in custody, is not being interrogated are admissible . . . [Citations omitted].

In determining whether a defendant’s in-custodial statement was spontaneous, this Court has focused on whether the defendant’s statement was made in the context of an interrogation made by police. A police interrogation is simply direct or indirect questioning put to the incustodial defendant by the police with the purpose of eliciting a statement from the defendant. Berna v. State, 282 Ark. 563, 567-68, 670 S.W.2d 434, 437 (1984), cert. denied, 470 U.S. 1085 (1985); McGee v. State, 280 Ark. 347, 352, 658 S.W.2d 376, 378 (1983); and Turney v. State, 239 Ark. 851, 395 S.W.2d 1 (1965). There is no indication in the instant case that Moore intended to elicit a statement from appellant when he spoke with him. The officer was asked by the appellant to come to his cell. Appellant brought up the subject of the charges and asked what Harrison had said. The officer simply did not question the prisoner. The trial court properly allowed the statement into evidence. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984).

For his third assignment of error the appellant contends that the trial court erred in denying his pre-trial motion to disqualify the duly elected prosecuting attorney from prosecuting this case. The appellant bases his argument upon our recent case of Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), but that case is vastly different. In Duncan, the prosecutor engaged in extensive interrogation of the defendant, testified on behalf of the State at a suppression hearing, and in closing argument described his interrogation of the defendant and expressed his opinion about the matter. We wrote: “In so doing, the prosecutor effectively became a witness for the state and underwrote his own credibility. A prosecutor should never cast himself in the role of a prosecutor and a witness, and it was reversible error to do so.” Here, the prosecutor did not attempt to underwrite his own credibility. Instead, he granted immunity to a witness, a proper role for a prosecutor preparing for trial, and took the statement of the witness. At no time did he personally attempt to vouch for the credibility of the state’s witnesses.

Pursuant to Ark. Sup. Ct. R. 11(f) we have made our own examination of all other objections made at trial and find no reversible error.

Affirmed.