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

text:
    Thomas Jeffery TACKETT v. STATE of Arkansas
    CR 88-137
    766 S.W.2d 410
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

      Jeff Rosenzweig, for appellant.

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

Appellant Thomas Jeffery Tackett was convicted of manslaughter and sentenced to seventeen years imprisonment. For reversal he argues that the trial court erred in holding that the prosecution could impeach his testimony with evidence of prior convictions arising from the same incident and in permitting the prosecution to use these prior convictions to enhance'punishment. We hold that these arguments have merit and reverse and remand.

In addition, Tackett contends that the trial court erred in refusing to give the jury instructions on lesser included offenses and that his conviction should be reversed because the information did not conform to the proof arid because the State failed to prove the victim’s cause of death. He also alleges that his prosecution is barred by principles of double jeopardy, speedy trial guarantees, the statute of limitations, and due process guarantees. We will address these issues since they are likely to arise on retrial.

On March 24,1983, on U.S. Highway 65 North in the town of Jefferson, Arkansas, Tackett drove his van only two to three feet behind a car driven by Lesa Diffee. With the front of his van, Tackett began to strike the rear bumper of the Diffee car, causing Diffee to lose control of her car. In the ensuing crash, Nancy House, a passenger, was killed instantly; Lesa Diffee was injured but later recovered; and another passenger, Denise Barrentine, was injured and went into a coma. On March 30,1983, Tackett was charged with manslaughter (Ark. Stat. Ann. § 41-1504 (Repl. 1977), currently Ark. Code Ann. § 5-10-104 (1987)) in the death of Nancy House and leaving the scene of an accident (Ark. Stat. Ann. § 75-901 (Repl. 1981), currently Ark. Code Ann. § 27-53-101 (Supp. 1987)). In September 1983 he was convicted of both offenses and sentenced to a term of eight years imprisonment on the manslaughter conviction and a $10,000.00 fine on the leaving the scene of an accident conviction. He then appealed the manslaughter conviction. The court of appeals affirmed. See Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984).

During this entire period, Denise Barrentine remained in a coma. On March 2, 1987, she died; on April 29, 1987, Tackett was charged with manslaughter for recklessly causing her death.

By pre-trial motion Tackett sought dismissal of the manslaughter charge on the grounds his prosecution was barred by principles of double jeopardy, speedy trial guarantees, the statute of limitations, and due process guarantees. The trial court denied the motion.

Tackett then sought a writ to prohibit the State from proceeding with his prosecution based upon the grounds stated in his pre-trial motion. We denied his petition in Tackett v. State, 294 Ark. 609, 745 S.W.2d 625 (1988), holding that neither double jeopardy nor the speedy trial rules barred his trial for recklessly causing the death of Denise Barrentine. As for his other complaints, we held that they were not yet ripe for decision. Thereafter, Tackett was convicted of manslaughter. He appeals from this conviction.

I. IMPEACHMENT WITH PRIOR CONVICTIONS.

Tackett argues that the trial court erred in ruling that the prosecution could impeach his testimony with evidence of his prior convictions for manslaughter and leaving the scene of an accident arising from the same incident. We agree.

At a pre-trial hearing, defense counsel asked the trial court to rule that if Tackett elected to testify, the prosecution could not impeach his credibility with the convictions for manslaughter and leaving the scene of an accident arising from the same incident. Following the court’s denial of this motion, Tackett elected not to testify.

Under Ark. R. Evid. 609(a)(1), a witness’s credibility may be attacked by admitting evidence that he or she has been convicted of a crime only if (1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted; and (2) the trial court determines pursuant to Ark. R. Evid. 403 that the probative value of admitting this evidence outweighs its prejudicial effect to a party or witness. Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988). A trial court has wide discretion in determining the admissibility of such evidence, and its decision will not be reversed absent an abuse of discretion. Id.

Under the circumstances of this case, the prejudicial effect of admitting the prior convictions for manslaughter and leaving the scene of an accident outweighs the probative value of the convictions as bearing on credibility. Since both convictions arose out of the same occurrence as the present manslaughter conviction, a juror would logically conclude that if Tackett was convicted of manslaughter and leaving the scene of an accident in the prior case, he must have committed manslaughter in the case at bar. For this reason, we find that the trial court abused its discretion in ruling that the prosecution could impeach Tackett’s testimony with these prior convictions.

II. USE OF PRIOR CONVICTIONS FROM THE SAME INCIDENT TO ENHANCE PUNISHMENT.

Tackett contends that the trial-court erred in allowing the prosecution to use his prior manslaughter and leaving the scene of an accident convictions arising from the same incident as the present manslaughter conviction to enhance punishment. This contention has merit.

In Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981),weheld that a prior conviction was admissible to enhance punishment pursuant- to the Habitual Offender Act (Ark. Stat. Ann. §§ 41-1001 — 41-1005 (Repl. 1977), currently Ark. Code Ann. §§ 5-4-501 — 5-4-504 (1987)) although the conviction was for an offense occurring after the offense on appeal. This holding was based upon our determination in Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981), that the Habitual Offender Act, which provides that a prior conviction, regardless of the date of the crime, may be used to enhance punishment, was not designed to act as a deterrent, but is simply punitive.

The obvious intent of the Act is to enhance punishment of a party who has a habit of criminal conduct. The manslaughter charge in connection with the death of Nancy House and the charge for leaving the scene of the accident for which Tackett was previously convicted and the manslaughter charge in connection with the death of Denise Barrentine in the case at bar all arose from Tackett’s single act of recklessly driving his car into the victims’ car. To utilize these prior convictions arising from one single act to enhance punishment pursuant to the Habitual Offender Act contravenes fundamental fairness and due process. Simply put, there is nothing habitual about the commission of a single criminal act resulting in multiple charges and convictions.

III. ISSUES ON REMAND.

A. LESSER INCLUDED OFFENSES.

Tackett argues the trial court erred in refusing to give the jury instructions on lesser included offenses of (1) battery in the second degree as defined in Ark. Code Ann. § 5-13-202(a)(3) (1987) and (2) battery in the third degree as defined in Ark. Code Ann. § 5-13-203(a)(3) (1987). We disagree.

The threshold question before us is whether battery in the second degree and battery in the third degree as defined in §§ 5-13-202(a)(3) and 5-13-203(a)(3) are lesser included offenses of manslaughter as defined in Ark. Code Ann. § 5-10-104(a)(3) (1987).

Before an offense will be considered a lesser included offense of a greater one, three basic requirements must be met: (1) the lesser offense must be established by proof of the same or less than all the elements of the greater offense; (2) the lesser offense must be of the same generic class as the greater offense; and (3) the differences between the two offenses must be based upon the degree of risk or injury to person or property or upon grades of intent or degrees of culpability. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985). See also Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988).

Under § 5-10-104(a)(3), a person commits manslaughter if he recklessly causes the death of another person. Under § 5-13-202(a)(3), a person commits battery in the second degree if he “recklessly causes serious injury to another person by means of a deadly weapon.” (Emphasis added.) Under § 5-13-203(a)(3), a person commits battery in the third degree if he “negligently causes physical injury to another person by means of a deadly weapon.’’’’ (Emphasis added.)

Battery in the second degree and battery in the third degree, as defined, require proof that a deadly weapon was used. In contrast, use of a deadly weapon is not necessary for the commission of manslaughter. See Flippo v. State, 258 Ark. 233, 523 S.W.2d 390 (1975). Since battery in the second degree and third degree, as defined, require proof of an element not an element of proof of manslaughter, they are not lesser included oifenses of manslaughter. See Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983), cert. denied, 472 U.S. 1019 (1985). See also Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987). Therefore, the trial court did not err in refusing to give the jury lesser included instructions on the offenses in question.

B. CONFORMITY OF INFORMATION TO PROOF.

Tackett contends that his conviction should be reversed and dismissed because the information did not strictly conform to the proof. This contention is meritless.

Tackett was charged by information with committing manslaughter by recklessly causing the death of Nancy Denise Barrentine in Jefferson County, Arkansas, on March 2, 1987.

At trial the State introduced evidence that on March 24, 1983, in Jefferson County, Arkansas, Tackett caused the accident which subsequently caused Denise Barrentine’s death in Pennsylvania on March 2, 1987.

Granted, the information would have been more accurate if it had stated that Tackett committed the offense of manslaughter by inflicting injuries upon Barrentine on March 24, 1983, in Jefferson County, Arkansas, which caused her death on March 2, 1987, in Pennsylvania. However, notwithstanding variance in the wording of an information and the proof introduced at trial, reversal is not warranted unless the variance prejudiced substantial rights of the accused. See Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982), cert. denied, 459 U.S. 1109 (1983). See also Ark. Code Ann. § 16-85-405 (a) (2) (1987). We find no prejudice in the case at bar.

C. FAILURE TO PROVE CAUSE OF DEATH.

Tackett also argues that the State failed to prove the cause of the victim’s death in that (1) the physician (Eugene Shatz) who testified as to the cause of death was not qualified to do so and (2) even if he had been qualified, his testimony was insufficient to prove the cause of death.

The standard for measuring the qualifications of an expert witness is flexible. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). If some reasonable basis exists from which it can be said that the witness has knowledge of a subject beyond that of a person of ordinary knowledge, his testimony is admissible. Id. See also Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). The determination of the qualifications of an expert witness lies within the sound discretion of the trial judge, and his decision will not be reversed absent an abuse of discretion. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986).

A surgeon or doctor who attends a homicide victim may give his opinion on the cause of death without reference to an autopsy. See Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975); Stewart & McGhee v. State, 257 Ark. 753, 519 S.W.2d 733, cert. denied, 423 U.S. 859 (1975).

The following facts can be gleaned from Dr. Shatz’s testimony in a videotaped deposition admitted into evidence at trial.

(1) Dr. Shatz, who has considerable medical experience, is certified in pediatrics but not in pathology.
(2) Although Shatz does not conduct autopsies, he attends approximately three autopsies a year.
(3) In November of 1983, Dr. Shatz began treating Denise Barrentine, who was comatose as a result of an automobile accident (which occurred on March 24,1983) in which she sustained serious injuries to many parts of her body, including her brain.
(4) Her condition, which was caused by the automobile accident, made her more susceptible to infection.
(5) During the last several months of Denise Barren tine’s life, Dr. Shatz examined her on three occasions.
(6) Two weeks prior to her death, he diagnosed her as having upper respiratory congestion.
(7) On the day of her death, March 2, 1987, he examined her and determined that the immediate cause of her death was pneumonia. This conclusion was based upon her condition two weeks prior and what her mother told him had happened in the interim.
(8) It was his opinion that the motor vehicle accident was the proximate cause of her death.
(9) No autopsy was performed.

What caused Ms. Barrentine’s death is a matter beyond the common knowledge of jurors. Accordingly, the trial court did not abuse its discretion in admitting into evidence Dr. Shatz’s testimony concerning this issue. See Bowden, supra.

Tackett’s contention that Shatz’s testimony was insufficient to prove the cause of death is also meritless.

Causation of death may be found where the death would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient. Ark. Code Ann. § 5-2-205 (1987). Where conduct hastens or contributes to a person’s death, it is a cause of the death. See McClung v. State, 217 Ark. 291, 230 S.W.2d 34 (1950); Rogers v. State, 60 Ark. 76, 29 S.W. 894 (1894). Causation may be found notwithstanding that death occurred several years after the conduct in question took place. See People v. Brengard, 265 N.Y. 100, 191 N.E. 850 (1934).

As noted above, Dr. Shatz testified that (a) Denise Barrentine’s comatose condition, which was caused by the automobile accident, made her more susceptible to infection; (2) he diagnosed her as having an upper respiratory congestion two weeks prior to her death; (3) pneumonia was the immediate cause of her death; and (4) the car accident was the proximate cause of her death. In addition, there was testimony by other witnesses that Tackett caused the accident. Taken together, this evidence was sufficient to prove the cause of Ms. Barrentine’s death.

Tackett’s contention is essentially an attack on the credibility of Dr. Shatz. It is the jury’s province, not this court’s, to judge the credibility of witnesses. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).

D. DOUBLE JEOPARDY, SPEEDY TRIAL, STATUTE OF LIMITATIONS, AND DUE PROCESS.

Tackett argues that his prosecution is barred by (1) principles of double jeopardy, (2) speedy trial guarantees, (3) the statute of limitations, and (4) due process guarantees.

In Tackett v. State, 294 Ark. 609, 745 S.W.2d 625 (1988), we addressed Tackett’s double jeopardy and speedy trial arguments, holding that neither double jeopardy nor our speedy trial rules barred his present prosecution for manslaughter. We adhere to this position.

Tackett asserts that his prosecution is barred by the statute of limitations since his conduct occurred on March 24,1983, and the manslaughter charges were filed on April 29, 1987, outside the three year statute of limitations established by Ark. Code Ann. § 5-1-109 (Supp. 1987) for manslaughter.

Under Ark. Code Ann. § 5-l-109(b)(3) and (e), the statute of limitations for manslaughter begins to run when “every element of the offense has occurred.” Since Tackett did not commit the offense of manslaughter until Denise Barrentine died on March 2, 1987, the statute of limitations did not begin to run until that date. The manslaughter prosecution was brought on April 29, 1987, well within the statute of limitations. Accordingly, Tackett’s contention is without foundation.

Tackett’s due process argument is simply a rehash of his other points for reversal. Therefore, we do not address it.

Reversed and remanded.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result reached by the majority. However, the majority opinion fails to clarify the matter of lesser included offenses. Manslaughter and battery in the first degree require proof of the same elements for a conviction in this case. Indeed, the appellant has already been convicted of first degree battery on the exact same factual situation.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Jessie SCOTT v. STATE of Arkansas
    CR 89-18
    764 S.W.2d 616
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

      Hixson, Cleveland & Kush, by: David L. Rush, for appellant.

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

Appellant Jessie Scott was convicted in circuit court of driving while intoxicated and driving left of center. For reversal he argues that he was denied his right to a speedy trial in that “twelve months passed before he was tried.” We disagree and affirm.

The following is a chronology of significant events:

(1) February 14,1987: Jessie Scott was arrested, charged, and convicted in Logan County Municipal Court of driving while intoxicated and driving left of center.
(2) April 13,1987: Scott appealed to the Circuit Court of Logan County, Northern District.
(3) May 27,1988: He was found guilty of the charges and sentenced to twenty-four hours imprisonment in the county jail, a fine of $150.00, and suspension of his driving privileges for ninety days on the driving while intoxicated conviction and $25.00 on the driving left of center conviction.

Rule 28.1 (c), as amended by per curiam dated July 13,1987, provides as follows:

Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, including released from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3. (Emphasis added.)

Prior to this amendment, Rule 28.1(c) required that a defendant be brought to trial within eighteen (18) months from the time provided for in Ark. R. Crim. P. 28.2.

Under current Rule 28.1(c), a defendant charged after October 1, 1987, shall be entitled to have the charge dismissed unless brought to trial within twelve (12) months from the time provided for in Ark. R. Crim. P. 28.2. Scott was charged on February 14,1987, well before October 1,1987. Accordingly, the prior eighteen-month limitation, not the present twelve-month limitation, applies. See Kain v. State, 296 Ark. 123, 752 S.W.2d 265 (1988). See also Hayes v. Lockhart, 352 F.2d 339 (8th Cir. 1988).

Since Scott was tried in circuit court within eighteen months from the date the case was appealed from municipal court, his right to a speedy trial was not infringed. See Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 138 (1986); Ark. R. Crim. P. 28.2(c).

Affirmed.


author: Darrell Hickman, Justice.

text:
    JONES RIGGING AND HEAVY HAULING, INC., and McConnell Heavy Hauling, Inc. v. HOWARD TRUCKING, INC.
    88-284
    764 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

      Kemp, Duckett, & Hopkins, for appellant.

      Douglas, Hewett and Shock, for appellee.
   Darrell Hickman, Justice.

This is an appeal from a decision of the Arkansas Transportation Commission granting a certificate of public convenience and necessity to the appellee. The circuit court affirmed the order. We affirm because we cannot say the commission’s decision is against the preponderance of the evidence.

The appellants are two trucking companies which have the authority to engage in the intrastate transport of metal products. The appellee, Howard Trucking, has been an interstate carrier for some time. Howard first sought authority from the commission to become an intrastate carrier in 1983, but the request was denied. Application was made again in 1986 and, after hearing numerous witnesses testify in support of Howard, the commission found that an additional metal products carrier would benefit the general public because existing service was inadequate.

The appellants make two arguments on appeal but essentially their claim is that the commission’s findings are not supported by the evidence and are contrary to the law and our decisions.

While we review these cases de novo, we will not disturb the findings of the commission unless they are against the preponderance of the evidence. Batesville Truck Lines v. Ark. Freightways, Inc., 286 Ark. 116, 689 S.W.2d 553 (1985). We do not retry these cases or substitute our judgment for that of the commission. Fisher v. Branscum, 243 Ark. 516, 420 S.W.2d 882 (1967). We will accord due deference to the commission because of its expertise in passing on the fact questions involved and because of its advantage in seeing and hearing the testimony of the witnesses before it. The burden is on the appellants to prove the decision is wrong. When the evidence is evenly balanced, the commission’s view must prevail. Wheeling Pipe Line, Inc. v. Ark. Commerce Comm’n., 249 Ark. 685, 460 S.W.2d 784 (1970); Fisher v. Branscum, supra.

It is settled that a certificate may not be granted when there is existing service in operation over the route applied for unless existing service is inadequate, or additional service would benefit the public, or the existing carrier was given an opportunity to furnish additional service. Santee v. Brady, 209 Ark. 224, 189 S.W.2d 907 (1945); Missouri-Pacific Railroad Co. v. Williams, 201 Ark. 895, 148 S.W.2d 644 (1941). That means if the commission finds any one of these factors, it can issue the certificate.

In this case, the commission found that present service was inadequate and that additional service would benefit the public. Evidence was presented to support those findings.

Afeo Metals and Afeo Steel are major shippers of metal products in Arkansas and are the primary customers of Jones Rigging and Heavy Hauling. Bill Morgan of Afeo Steel testified that the appellants’ equipment was at times inadequate to meet his needs, and he has had to ask customers to wait a day or two on orders as a result. His company has greatly increased its sales to the bridge construction industry, and he said it was especially important that those customers receive shipments in a timely manner.

Bill Rath of Afeo Metals also testified that the appellants could not provide the timely service he requires. When the appellants have been unable to provide service, Rath has used an uncertified carrier. He also testified that McConnell’s rates are so high that he puts his company at a competitive disadvantage when he uses them. Finally, he noted that his West Memphis branch was experiencing a large increase in business.

Both men testified they would divert little business away from Jones and McConnell should the application be granted.

Larry Norris of Razorback Steel testified the appellants did not have the particular kind of equipment he needed to ship his product, and he had lost a sale as a result. He said Howard has the necessary equipment.

Jay Dillard of Tex-Ark. Joist testified he had called McConnell several times, but they did not have equipment available. He supported the need for an additional carrier to help him make his shipping commitments.

There is no doubt that some of the testimony presented by Howard was weakened on cross-examination. Most witnesses indicated they were generally satisfied with the existing carriers, but lack of equipment was causing delays in shipments. But the overall tone of the testimony was that existing carriers could not handle the current level of business, much less the expected increase in business.

Our role is to review the commission’s decision, not to substitute our judgment for its. There is ample evidence to support the commission’s finding that existing service is inadequate and an additional carrier would benefit the shipping public. Since we cannot say the decision is against the preponderance of the evidence, it stands.

Affirmed.

Holt, C.J., not participating.


author: Robert H. Dudley, Justice.

text:
    ARKANSAS KRAFT CORPORATION v. BOYED SANDERS CONSTRUCTION CO.
    88-236
    764 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Ralph R. Wilson, for appellee.
   Robert H. Dudley, Justice.

This case involves a question concerning the interpretation of an indemnity agreement between appellant, Arkansas Kraft Corporation, and appellee, Boyed Sanders Construction Corporation. The trial court granted appellee’s motion for summary judgment, finding that the language contained in the indemnity agreement did not clearly and unequivocally show that appellee intended to indemnify appellant for appellant’s own negligence. We affirm.

Appellant wanted to install a de-inking plant at its paper mill to recycle white waste paper and turn it back into useable pulp. Appellant entered into an agreement with appellee by which appellee was to provide labor and equipment as part of the construction project at the paper mill.

On September 25, 1984, Tommy Goates, an employee of appellee Sanders Construction Company, was injured while working on the construction project. Goates filed suit against appellant and another subcontractor on the job.

Appellant subsequently filed a Third Party Complaint against appellee. The complaint alleged that under the terms and conditions of a contract between the two companies, appellant was entitled to indemnity from appellee in the event that appellant was found to be liable to Goates in any amount.

At the trial of this case, the court withheld the issue of indemnity subject to the disposition of the issue of liability. The jury returned a $400,000 verdict in favor of Goates. It apportioned fault as 5% to plaintiff Goates, 50% to appellant, and 45% to the other subcontractor on the project named as co-defendant in the suit. No allegations of negligence on the part of appellee were made by the appellant before the jury was dismissed. With respect to the issue of indemnity^ motions for summary judgment were filed by both appellee and appellant. The trial court granted appellee’s motion, and denied that of appellant. This appeal followed.

Appellant contends that the language of the indemnity agreement was sufficiently clear and unequivocal to show that the parties intended for appellee to indemnify appellant for any and all claims for injuries arising out of the work, regardless of fault, and that the trial court erred in finding otherwise. The argument is without merit.

The language at issue in the instant case is:

To the extent that, in performance of this order, Seller shall do any work or cause any work to be done on any premises of the Buyer, then Seller shall indemnify and hold Buyer harmless against any and all liabilities or claims for injuries or damages to any person or property arising out of such work and Seller shall, further, upon request furnish Buyer with proof that Seller is carrying adequate public liability, property damage and workmen’s compensation insurance.

A contract of indemnity is to be construed in accordance with the rules for the construction of contracts generally. Pickens-Bond Constr. Co. v. NLR Electric Co., 249 Ark. 389, 459 S.W.2d 549 (1970). If there is no ambiguity in the language of the contract, then there is no need to resort to rules of construction. Id. However, a subcontractor’s intention to obligate itself to indemnify a prime contractor for the prime contractor’s own negligence must be expressed in clear and unequivocal terms and to the extent that no other meaning can be ascribed. Hardeman, Inc. v. Hass Co., 246 Ark. 559, 439 S.W.2d 281 (1969). While no particular words are required, the liability of an indemnitor for the negligence of an indemnitee is an extraordinary obligation to assume, and we will not impose it unless the purpose to do so is spelled out in unmistakable terms. Id.; Batson-Cook Co. v. Industrial Steel Erectors, 257 F.2d 410 (5th Cir. 1958). We find no such clear and unequivocal terms in the instant case.

Appellant argues that the trial court failed to identify any portion of the indemnity agreement which created an ambiguity. The argument misses the point. The language of an indemnity agreement can be unambiguous and still not spell out in clear, unequivocal, unmistakable terms the indemnitor’s intention to obligate itself to indemnify for the indemnitee’s negligence.

Both parties rely upon the case of Pickens-Bond Constr. Co. v. NLR Electric Co., 249 Ark. 389, 459 S.W.2d 549 (1970). Appellant’s reliance upon the case, however, is misplaced because the indemnity language in Pickens-Bond is clearly distinguishable from the language at issue here. The pertinent indemnity language from Pickens-Bond was: “He shall specifically and distinctly assume, and does assume, all risks of damage or injury from whatever cause to property or persons used or employed on or in connection with his work,. . . .” (Emphasis added.) This Court found that language to be so broad and sweeping as to clearly and unequivocally show the indemnitor’s intention to obligate itself, even for the negligence of the indemnitee. Even so, this Court reversed the summary judgment and remanded the case holding that there was a justiciable issue concerning whether the prime contractor’s negligence was the sole proximate cause of the accident. In so holding, this Court found that such a broadly worded indemnity clause would cover any situation unless the damage or injury was due to the indemnitee’s sole negligence. The language at issue here, however, is simply not so broad as to clearly and unequivocally show the indemnitor’s intention to obligate itself to indemnify the indemnitee for the indemnitee’s own negligence.

Appellant contends alternatively that if it is not entitled to full indemnity, then it is at least entitled to indemnity to the extent that appellee was at fault in causing the injuries to Goates. Appellant asks us to remand the case for a determination of that issue. We decline to do so.

Appellant filed its Third Party Complaint against appellee alleging that it was contractually entitled to indemnity from appellee in the event appellant was found to be liable to Goates in any amount. Appellant made no allegations of negligence against appellee in the complaint, and it was never amended. The theory of recovery rested entirely upon the alleged contractual obligation to pay in full any and all amounts for which appellant might be held liable for its own individual acts of negligence. In fact, the first and only time, prior to the briefs submitted in this appeal, that appellant even mentioned any fault on the part of appellee was in appellant’s Brief in Support of Response in Opposition to Motion for Summary Judgment, where appellant stated: “Due to [appellee’s] immunity with respect to plaintiffs claim, the fault attributable to the third party defendant [appellee] has yet to be determined.” The issue was therefore not properly raised below and cannot now be raised on appeal.

Affirmed.


text:
    Mary Louise FILK v. Elizabeth F. BEATTY, By Her Attorney in Fact, Lloyd David Beatty
    89-35
    764 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

      Kelley and Lujfman, by: Eugene T. Kelley, for appellant.

      Scott, Lashlee & Watkins, P.A., by: John R. Scott, for appellee.
   Robert H. Dudley, Justice.

In 1984, Elizabeth F. Beatty executed a durable power of attorney pursuant to the provisions of Ark. Stat. Ann. § 58-501 etseq. (Repl. 1971) (Ark. Code Ann. § 28-68-301 et seq. (1987)) and Ark. Stat. Ann. § 58-701 et seq. (Supp. 1985) (Ark. Code Ann. § 28-68-201 etseq. (1987)) for the purpose for having her son, Lloyd David Beatty, appointed to provide for her needs in the event she became incompetent. The power of attorney was presented to the probate judge pursuant to Ark. Stat. Ann. § 58-501 (Repl. 1971) (Ark. Code Ann. § 28-68-304 (1987)) and was signed by him under the word “approved.” The approval contained no other words of rendition of judgment.

Lloyd Beatty, acting under the power, brought this action in chancery court in the name of his principal against the appellant, to collect amounts past due on a promissory note. In the chancery court action, the appellant questioned the standing of the attorney-in-fact to maintain the action on the ground that the principal was incompetent at the time the probate court approved the power of attorney and at the time the suit was filed; hence, the action could not be maintained either in the principal’s name or in the attorney-in-fact’s name. The appellant further questioned the attorney-in-fact’s standing because of an alleged excessive value in the principal’s estate. The chancellor excluded all evidence of the principal’s competency and of the value of the principal’s estate on the ground that such evidence would only serve to collaterally attack the action of the probate court in approving the power. We affirm that ruling.

Before discussing the points of appeal raised by the appellant, we issue a caveat by noting that a judgment consisting solely of the word “approved” does not clearly specify the relief granted by the trial court, as is required for a valid judgment. See Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967). However, the form of the probate court judgment has never been questioned.

In her two points of appeal the appellant argues that the chancellor erred in refusing to allow her to prove (1) the competency of the principal and (2) the value of the ward’s estate.

The probate court has constitutional and statutory subject matter jurisdiction of persons of unsound mind and their estates. Article 7, Section 34, as amended by Amendment 24, Section 1, of the Constitution of Arkansas, and Ark. Stat. Ann. § 62-2004 (Repl. 1971) (Ark. Code Ann. § 28-l-104(a)(4) (1987)). In addition, the probate court is specifically given subject matter jurisdiction over this kind of power of attorney. Ark. Stat. Ann. § 58-501 (Repl. 1971) (Ark. Code Ann. § 28-68-304 (1987)). Thus, the probate court was clearly acting within its jurisdiction when it approved the power of attorney in this case. When a probate court has acted within its jurisdiction, its judgments are not open to collateral attack. Sullivan v. Times Publishing Co., 181 Ark. 27, 24 S.W.2d 865 (1930). When a probate court acts without its jurisdiction, however, its judgments are void, and subject to collateral attack. McDonald v. Fort Smith & Western Ry. Co., 105 Ark. 5, 150 S.W. 135 (1912).

Here, the appellant’s argument is that the probate court’s granting of the power was erroneous because the principal (a) was incompetent and (b) had too large an estate. An erroneous judgment is not void, but only voidable, and may not be collaterally attacked. McDonald, supra. Thus, the chancellor correctly ruled that the probate court judgment could not be collaterally attacked in chancery court.

Affirmed.


author: Steele Hays, Justice.

text:
    Garland Maurice GIBSON v. STATE of Arkansas
    CR 89-6
    764 S.W.2d 617
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

      Landers and Shepherd, by: Michael R. Landers, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Garland M. Gibson brings this appeal from his conviction for aggravated robbery and burglary. He received a five year sentence for the burglary conviction and a fifteen year sentence for the robbery, the sentences to be served consecutively. The single point for reversal is that the trial court erred in denying Gibson’s motion for a new trial. A new trial was sought because Gibson was not represented by counsel at any stage of the criminal proceedings, nor did he knowingly and intelligently waive his right to counsel. After reviewing the arguments on appeal, we reverse the trial court.

The Sixth and Fourteenth Amendments to our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. Faretta v. California, 422 U.S. 806 (1975); Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938); Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972).

In Faretta v. California, supra, the United States Supreme Court held that before an accused manages his own defense he must first “knowingly and intelligently” waive the right to counsel. Furthermore, the trial court maintains a weighty responsibility in determining whether an accused has “knowingly and intelligently” waived this right. Johnson v. Zerbst, supra; Murdock v. State, 291 Ark. 8, 722 S.W.2d 268 (1987). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Brewer v. Williams, 430 U.S. 387 (1977); Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986).

Determining whether an intelligent waiver of the right to counsel has been made depends in each case upon the particular facts and circumstances, including the background, the experience and conduct of the accused. Johnson v. Zerbst, supra. The facts of this case reveal that on December 16, 1986, Mr. Gibson was arrested for the robbery and burglary of O.W. Stone. While in police custody Gibson signed two Miranda rights forms before giving a statement on December 17, 1986. On December 18, 1986, Gibson appeared before the trial judge. At this time Gibson was informed of the charges against him and, upon the preliminary determination of indigency, the trial court appointed Murray Armstrong as his attorney. Mr. Armstrong met with Gibson, and after discovering that Gibson was gainfully employed, he filed a motion to withdraw as counsel which was granted. Thus, Armstrong was relieved as Gibson’s attorney without ever having acted in his defense.

On August 31, 1987, the trial judge set a trial date for November 2, 1987, and informed Gibson as follows:

The Court:
Alright, Now it’s important sir that you get you an attorney. Do you understand?
The Defendant:
Yes, sir. I understand.

Yet on November 2, 1987, Gibson again appeared without counsel and went into chambers with the judge and attorneys for two co-defendants. The attorney for the co-defendants filed motions for continuance and severance, but the trial judge decided to try Gibson. The following exchange in chambers occurred:

The Court:
Alright. Okay. Now Mr. Gibson do you have your attorney with you this morning, sir?
The Defendant:
No, I don’t.
The Court:
Alright, sir. You don’t plan to get one. Is that right, sir?
The Defendant:
No.
The Court:
Okay. You want to try this man Mr. Gibson? [Addressing Mr. John Frank Gibson, the prosecuting attorney].
Mr. Gibson:
Yes, Your Honor.

To establish a voluntary and intelligent waiver, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. The judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. The last requirement is especially important since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and receives no special consideration on appeal. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). Recently, the United States Supreme Court in Patterson v. Illinois,_U.S__, 108 S.Ct. 2389, 10 L.Ed.2d 261 (1988), held that the constitutional minimum for a knowing and intelligent waiver of the right to counsel requires that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel.

The trial judge complied with the requirement of advising Gibson that he had a right to counsel, and the trial judge briefly appointed counsel. Later, upon further inquiry into Gibson’s financial status, the trial court relieved the appointed counsel. Admittedly, Gibson was aware of his right to counsel, and arguably realized in general the importance of obtaining a lawyer. However, at no time did the trial judge determine that Gibson made an intelligent waiver, by explaining the risks or the consequences of proceeding without counsel. From an examination of the facts and circumstances surrounding this case, it is clear that Gibson did not have the benefit of counsel at any critical stage in the criminal proceedings against him and did not waive his right to counsel. At the August 31 hearing Gibson appeared without counsel, as well as on the date of the trial, November 2nd. On November 2nd, Gibson, who had not been previously arrested and had only attended two years of college, was required to represent himself in a suppression hearing and a jury trial.

Although it is left to the sound discretion of the trial judge whether to grant a new trial, he may be reversed when there is an abuse of discretion or manifest prejudice to the complaining party. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). We must reverse the trial judge in order to avoid manifest prejudice and injustice to the appellant who failed to receive warning of the consequences of foregoing counsel. An accused is entitled to relief from a conviction whenever the proceedings indicate the unfairness of trial without the help of a lawyer. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986); McIntyre v. State, 242 Ark. 229, 412 S.W.2d 826 (1967).

Reversed and remanded.


text:
    Dorothy WARD v. Donald S. DAVIS, Glidth Davis, and Nora Ruark Wells
    88-251
    765 S.W.2d 5
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

      Ed Phillips, for appellant.

      Scott Adams, for appellee.
   Steele Hays, Justice.

Donald and Glidth Davis owned a parcel of land in Conway County containing six acres, more or less. On September 27, 1969, the Davises conveyed a one acre portion of this property to Jimmie Wells. In 1985 the Davises conveyed to Nora Wells a 1.17 acre tract which adjoined Jimmie Wells on the south. The northern boundary of the Nora Wells tract abutted the southern boundary of the Jimmie Wells tract.

Donald S. Davis and Glidth Davis brought a quiet title suit against Jimmie Wells and Nora Wells on September 22,1986, in Conway County Chancery Court. The parties settled the suit by stipulation, and a portion of the land previously deeded to Nora Wells was reconveyed to the Davises.

Some months later appellant Dorothy Ward acquired title to the one acre tract by warranty deed from Jimmie Wells. Subsequently she filed a petition to quiet title naming Donald Davis, Glidth Davis, and Nora Wells as defendants and alleging that the property description in the 1969 deed from the Davises to Jimmie Wells was inaccurate. She alleged that the correct description included land presently claimed by Nora Wells. The chancellor dismissed Dorothy Ward’s petition, finding that it was barred under the doctrine of res judicata. In addition, the chancellor awarded attorney’s fees of $1,590.00 to the defendants, now the appellees. Dorothy Ward appeals from these rulings.

We review chancery cases de novo, reversing the chancellor only when the findings of fact are found to be clearly erroneous or clearly against the preponderance of the evidence. Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987). ARCP Rule 52. The chancellor found that the earlier quiet title suit between Jimmie and Nora Wells and Donald and Glidth Davis had determined the ownership and the boundaries of the property at issue in this case, and therefore he dismissed the appellant’s suit under the principle of res judicata. Res judicata has been applied in quiet title cases in Arkansas. Phelps v. Justiss Oil Co., 291 Ark. 538, 726 S.W.2d 662 (1987); Kirby v. Hedgepeth, 246 Ark. 260, 437 S.W.2d 807 (1969). After de novo review, we affirm the chancellor.

Recently, in Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988), we set out the elements of res judicata which must be present in order to hold that a prior action bars relitigation in a subsequent suit. The claim preclusion aspect of the doctrine bars relitigation in a subsequent suit when: (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or a cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. At issue in this case are elements four and five.

As to the matter of privity, the first quiet title suit concerning the property in dispute was styled Donald S. Davis and Glidth Davis v. Jimmie Harold Wells and Nora Wells. Although appellant was not a party to that action, Jimmie Wells, appellant’s predecessor in title, was a party to the action. We recognized in Phelps v. Justiss Oil Co., 291 Ark. 538, 726 S.W.2d 662 (1987), that a successor in interest may be considered in privity with her predecessor so that relitigation of title to land could be barred. Quoting from the Restatement 2d, Judgments, § 43(b) (1980), this court noted that a judgment in an action that determines interests in real or personal property has preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself. Therefore, privity exists between the parties of both lawsuits.

Turning to whether Jimmie Wells (and, hence, the appellant) would be precluded from relitigating this action because both suits involve the same claim or cause of action which was litigated or could have been litigated in the earlier suit, the answer is clear. The quiet title decree entered in that suit concerned a deed from the Davises to Nora Wells in which Nora Wells deeded back a portion of land to the Davises.

Appellant Ward in this quiet title action alleges that the deed given to her by Jimmie Wells did not accurately describe her tract of land. However, it is clear that the portion of land now claimed by her was involved in the first lawsuit. As a defendant in the former action, Jimmie Wells made no claim to this disputed portion of land even though he was in a position to asser* such a claim. In Wilson v. Dyess Farms, 74 F. Supp. 990 (E.D. Ark. 1948), the court stated that the defendant in a quiet title action should “set up every defense and every claim of title which he then has. . . .” Because the claim to the disputed property could have been litigated by Jimmie Wells in the former action, the appellant, as successor in interest to Wells, is now precluded from relitigating this issue.

The appellant also challenges the chancellor’s award to the appellees of attorney fees of $1,590.00 pursuant to Act 601 of 1987 ([Ark. Code Ann. § 16-22-309 (1987)]. Act 601 authorizes attorney fees for a prevailing party where the court finds a complete absence of a justiciable issue. The appellant points out that her petition to quiet title was filed on May 6,1987, whereas Act 601 did not take effect until July 20, 1987. Therefore, she maintains, the act has no application to a pending case.

The appellee counters with the argument that Act 601 does not disturb vested rights or create-new obligations, and is therefore procedural rather than substantive in nature. Procedural statutes operate retroactively as well as prospectively. City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981); Safeway Stores v. Shwayden Brothers, 238 Ark. 768, 384 S.W.2d 473 (1964); Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962). However, we note that in Aluminum Co. of America v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982), the Court of Appeals examined this question in depth and reasoned persuasively that legislation affecting attorneys’ fees in workers’ compensation cases, being remedial, operates retroactively.

It could, perhaps, be argued that the legislative history and benevolent intent behind workers’ compensation distinguish it from legislation making provision for attorneys’ fees where it had not previously existed and on a broad spectrum affecting litigation in general. But we need not reach that issue, because the answer is readily found in the language of Act 601. The act (Section 1) empowers the trial court to award attorneys’ fees where there is a complete absence of a justiciable issue unless there is a voluntary dismissal or an amended pleading within a reasonable time after the attorney or party knew or reasonably should have known he would not prevail. Section 3 reads as follows:

In order to find an action, claim, setoff, counterclaim or defense to be lacking a justiciable issue of law or fact, the court must find that the action, claim, setoff, counterclaim or defense was commenced, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another, or delaying adjudication without just cause, or the party or the party’s attorney knew, or should have known, that the action, claim, setoff, counterclaim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law. [Our emphasis.]

The act became effective on July 20, 1987, and at that point in time the appellees had filed their answer pleading res judicata and specifically citing the earlier litigation between the Davises and the Wellses. The case was not tried until October. Thus the appellant had ample time after the effective date of Act 601 to determine the merit, or lack thereof, of her position in light of existing law. We conclude that although the filing of the petition may not have triggered the application of Act 601, the continuation of the suit beyond a reasonable time after the act became effective rendered the appellant subject to its terms.

Finally, under the language of Act 601 we review de novo the basis for the award of attorney’s fees on the record of the trial court alone, nevertheless, even in de novo review, it is our duty and practice to affirm the chancellor’s decree if it is not against the weight of the evidence. Mosley v. McDavid, 250 Ark. 735, 466 S.W.2d 922 (1971). We cannot say his finding of a complete absence of a justiciable issue was clearly erroneous and, accordingly, we affirm.


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

text:
    H. Eugene TAYLOR v. Honorable Judith ROGERS
    88-264
    764 S.W.2d 619
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989
    ■ Dodds, Kidd, Ryan & Moore, by: Judson C. Kidd, for petitioner.

      Wilson, Engstrom, Corum & Dudley, by: Wm. R. Wilson, Jr., for respondent.
   David Newbern, Justice.

H. Eugene Taylor seeks a writ of prohibition with respect to contempt citations in the court of Chancellor Judith Rogers. He was sentenced to spend five weekends in jail for failure to make timely child support payments to his wife. The support had been ordered as a temporary measure during divorce proceedings. At the hearing he was again cited for making a profane threat to his wife while the chancellor and counsel were in the chancellor’s chambers discussing the case and Mr. and Mrs. Taylor were in the courtroom. He was sentenced to an additional five weekends, thus making a total of twenty days, in jail.

A writ of prohibition may issue only when the court to which it is to be directed is wholly without jurisdiction and appeal is not an adequate remedy. Municipal Court of Huntsville v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987); State v. Nelson, Berry Pet. Co., 246 Ark. 210, 438 S.W.2d 33 (1969). The arguments of the petitioner do not suggest the court lacked jurisdiction to issue either of the citations. With respect to the first one, he argues the child support order was not sufficiently definite in its statement of the due date of the child support. As to the second citation, he argues he was not in the presence of the court and that the act for which he was found in contempt was not disruptive of court proceedings. Both arguments are allegations of error only.

Writ denied.

Purtle, J., concurs in part and dissents in part.

John I. Purtle, Justice,

concurring in part; dissenting in part. Although I agree that the chancellor was justified in finding the petitioner guilty of contempt for willfully failing to make timely support payments, I would reach a different result with respect to the second citation. I would issue the writ of prohibition on the contempt citation concerning the alleged profane statement of the petitioner to his wife out of the presence of counsel or the court. I realize that prohibition is not proper when appeal is an adequate remedy. However, in the present case it is my opinion that the second citation is so unsupported by the facts that it would be an undue burden to force the petitioner to appeal this contempt citation on its merits when the matter is already before us in complete detail.


author: Tom Glaze, Justice.

text:
    Huey Carnell WHITE v. STATE of Arkansas
    CR 88-120
    764 S.W.2d 613
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

      Matt Keil; Malaby & Shumaker, by: Rick C. Shumaker, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

A Miller County jury found the appellant guilty of capital murder and sentenced him to life imprisonment without parole. On appeal, the appellant argues that there was insufficient evidence to convict him of capital murder. In addition, he argues that he was denied equal protection because of the state’s use of its peremptory challenges to strike two black jurors, and that Arkansas’s capital murder and first degree murder statutes overlap and are therefore unconstitutional. We affirm the appellant’s conviction.

Appellant first contends the trial court erred in failing to grant his motion for directed verdict. This contention is wholly without merit. Arkansas’s capital murder statute, Ark. Code Ann. § 5-10-101(a)(l) (Supp. 1987), provides in relevant partas follows:

(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more persons, he commits or attempts to commit. . . robbery . . . , and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; . . .

Appellant concedes he joined with another, James Lee Thomas, in robbing Hamilton’s AG Grocery in Stamps, Arkansas, but he argues that because he did not actually kill, or aid Thomas in the killing of, the store’s clerk during the robbery, he was not an accomplice to murder. Such a contention has no basis in law. In fact, we have repeatedly held that a person need not take an active part in a murder to be convicted if he accompanies another who actually commits the murder, and he assists in the commission of the crime — in this case, the crime of robbery. See, Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985); Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983); Hallman & Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).

Here, the proof reveals the appellant and Thomas both had guns, and that, during the robbery, Thomas initially struck one clerk, Delores Cockerham, and, at about the same time, appellant struck another clerk, Lori Lemay. Although appellant admits to having seen Thomas strike Cockerham once with his gun, Lemay, who had fallen to the floor and could not see, heard Cockerham being beaten repeatedly. Appellant also admitted that, after the beatings, he placed a trash can over Cockerham’s head. The medical examiner related that Cockerham died from head and brain injuries because of the blows to her head. Based upon those facts alone, we have no hesitancy in concluding that the state met its burden of proving the elements of capital murder.

Conversely, the appellant failed to meet his burden of proving his affirmative defense under Ark. Code Ann. § 5-10-101(b). Pursuant to § 5-10-101(b), appellant contended that he did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission. Even if we accepted appellant’s argument that he did not actually strike Cockerham, the evidence reflects that he had provided Thomas with the gun which was used to beat Cockerham and, at the very least, he assisted Thomas in Cockerham’s beating by hitting Lemay, thereby preventing Lemay from going to Cockerham’s aid or from obtaining help. The trial court was clearly correct in denying appellant’s motion for directed verdict.

Citing Batson v. Kentucky, 476 U.S. 79 (1986), and Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), the appellant next argues he was denied a fair trial because the state improperly exercised two peremptory challenges in striking two black jurors. The appellant is black and the decedent, Mrs. Cockerham, was white.

The Supreme Court in Batson held that a defendant who could make a prima facie case of purposeful discrimination shifts the burden to the state to prove the exclusion of jurors is not based on race. In Ward, we explained that such a prima facie case may be made (1) by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) by demonstrating total or seriously disproportionate exclusion of blacks from any jury venires, or (3) by showing a pattern of strikes, or questions and statements by a prosecuting attorney during voir dire. Ward, 293 Ark. at 92-93, 733 S.W.2d at 730. Appellant has shown none of the foregoing prerequisites.

After the court initially excused seventeen jurors for cause from the original panel, the appellant and the state had fifty-three persons left on the venire, five of whom were black. The court excused one of these five prospective jurors for cause because she had talked to others about the case and her views had become prejudiced. As a consequence, only four prospective black jurors remained on the panel at the time the attorneys began using their peremptory challenges. One of the remaining four veniremen was seated as a juror although the state had peremptory challenges remaining. The state did peremptorily challenge the three remaining black veniremen, but the appellant only questioned two of them. The two prospective jurors, Mr. Junious Lindsey and Mr. Ed Trotter, were challenged by the state after both men expressed reluctance to impose the death penalty. Appellant points to nothing in the prosecutor’s actions and voir dire of these two black men that would lead us to believe the prosecutor acted with purposeful discrimination in striking Trotter and Lindsey. While not conceding that appellant had made a prima facie case of discrimination, the prosecutor stated on record that the two prospective jurors were striken because of their responses to the questions posed to them concerning the death penalty.

As was true in Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988), the record here reflects that after the jury was seated — including the one juror of appellant’s race — the state had peremptory challenges remaining. No discriminatory purpose can be attributed inferentially or directly to the state because of its actions in striking the two jurors in this cause. Neither does the appellant show a disproportionate exclusion of blacks from the venire from which the state and appellant were required to select a jury. Accordingly, we hold the appellant failed to establish a prima facie case of discriminatory purpose as is required in Batson.

In his final point appellant urges that Arkansas’s capital murder statute is unconstitutional because it overlaps the requirements or elements contained in the state’s first degree murder statute. This court has already decided this issue contrary to the appellant’s argument. See Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). In Cromwell, the defendant insisted that Arkansas’s capital murder and first degree murder statutes overlapped and were void for vagueness, because the prosecuting attorney or the trier of fact may arbitrarily decide whether an accused is to be charged with or convicted of capital murder, a capital offense, or murder in the first degree, punishable by imprisonment only. This court held that it found no constitutional infirmity in the overlapping of the two statutes because there is no impermissible uncertainty in the definition of the offenses. The court explained first that it was impossible to avoid the use of general language in the definition of offenses and that the prosecutor or grand jury is often compelled to choose one or two or more offenses, no matter how precise the statute might be. As an example, the court noted that one or the other offense may be established depending upon the credibility or conflicting testimony of witnesses. The court further reasoned that the wording in the first degree murder statute may have been chosen to lighten the possible punishment that might be imposed for conduct falling within the strict definition of capital murder — a consequence that might be acceptable both to the prosecution and to the defense. We reaffirm our decision in Cromwell and hold Arkansas’s capital murder and first degree murder statutes to be constitutional.

In accordance with Ark. Sup. Ct. R. 11(f), we have examined the record of the proceedings and have determined that there are no other rulings adverse to appellant which resulted in prejudicial error. For the reasons set out above, we affirm the trial court’s rulings and judgment.


author: Tom Glaze, Justice. David Newbern, Justice, John I. Purtle, Justice,

text:
    Donald G. JACKSON v. Emily Joy JACKSON
    88-187
    765 S.W.2d 561
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989

      Herrods of Arkansas, P.A., by: E.H. ("Buzz”) Herrod, for appellant.

      Wilson & Associates, P.A., by: Jack T. Lassiter, for appellee.
   Tom Glaze, Justice.

This appeal ensues from a divorce case and involves marital property issues that arise out of appellee’s inheritance of certain stock and the later purchase of her sister’s one-half interest in real-property that she and her sister inherited from their mother. Both of these events, the inheritance and purchase of property, occurred when appellee was married to the appellant. The chancellor held appellant acquired no marital interest in either the stock or real property, and in an unpublished opinion, the court of appeals affirmed. This court granted review pursuant to Ark. Sup. Ct. R. 29(l)(c).

We first consider the house and real property that the appellee and her sister inherited from their mother. The sisters each owned an undivided one-half interest in the property. By agreement with her sister, appellee and her husband, appellant, moved into the house, which is located in the Pleasant Valley Subdivision in Little Rock. Appellee and appellant made improvements on the property with monies appellee testified were her separate funds, which were monies from nonmarital stock inherited from her mother.

At this time, the parties were experiencing marital unrest. For that reason, appellee stated that when her sister offered to sell her one-half interest, appellee bought her sister’s interest by taking title in her name alone and paying her sister $67,850.31, which were funds appellee withdrew from her separate stockbroker account. That account contained the stock that appellee had inherited from her mother. In purchasing her sister’s interest, appellee concedes that she first deposited the funds drawn from her stock account into a joint checking account, bearing both appellant’s and appellee’s names. After depositing these funds, she wrote a check payable to her sister for $67,850.31, which was the full amount of the purchase. Appellant argues that, when appellee placed her nonmarital funds into the parties’ joint checking account, appellant acquired a one-half interest in those funds, as well as the sister’s one-half interest, which was purchased by with those funds.

In McEntire v. McEntire, 267 Ark. 169, 590 S.W.2d 241 (1979), the court recited the established rule that the estate by the entireties may be created in personal property. It stated, noting Ark. Stat. Ann. § 67-552 (Supp. 1965) (now Ark. Code Ann. § 23-32-1005 (1987)), that a bank account held in the names of persons who designate themselves as husband and wife is the property of such persons as tenants by the entireties and upon the death of one of the persons, the account is payable to the survivor. The court further noted that an estate by the entireties in a bank account differs in one significant aspect from an estate in real property in that the estate exists in the account only until one of the tenants withdraws such funds or dies leaving a balance in the account and that the funds withdrawn or otherwise diverted from the account by one of the tenants and reduced to that tenant’s separate possession ceases to be a part of the estate by the entireties . See also Black v. Black, 199 Ark. 609, 135 S.W.2d 837 (1940); Hayse v. Hayse, 4 Ark. App. 160-B, 630 S.W.2d 48 (1982).

In Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975), this court further discussed tenancy by the entirety and held that the acquisition of property, whether realty or personalty, by persons who are husband and wife by an instrument running to them conjunctively, without specification of the manner in which they take, usually results in a tenancy by the entirety. The court added that there is at least a presumption that the taking in such circumstances is by the entirety. The court added that the fact that the consideration given by the property taken in the two names belong to one spouse only is of little, if any, significance where he or she is responsible for the property being taken in both names as the presumption is that there was a gift of an interest by the husband to the wife, even though the wife may have no knowledge of the transaction. Importantly, the Ramsey court held that the presumption is strong, and it can be overcome only by clear, positive, unequivocal, unmistakable, strong, and convincing evidence, partially because the alternate is a resulting trust the establishment of which, under circumstances, requires that degree of proof.

In the present case, the chancellor concluded, correctly we believe, that appellee should be entitled to her inherited or nonmarital funds, unless she did something to destroy the non-marital status of those funds. Clearly, appellee had the right to withdraw the funds she deposited in the parties’ joint account and, as pointed out in McEntire, the mere depositing of those nonmarital funds into the parties’ bank account did not render them forever funds owned by the entirety. The chancellor found that appellee merely “poured” her nonmarital funds in and out of the parties’ checking account, so she would have a receipt and record of the real estate transaction with her sister — a record appellee deemed necessary for the Internal Revenue Service. Also, significantly, the trial judge found appellee took title to the house in her name only, and he obviously believed her testimony that she intended to keep her funds and property separately since the parties were experiencing marital discord. The appellee testified she rejected appellant’s suggestion that they obtain a loan to purchase the sister’s interest because, to do so, would necessitate placing the property in both her name and the appellant’s. The chancellor further found the appellant exercised no dominion and control over appellee’s funds, and he was convinced that appellee never intended to make a gift of those nonmarital funds and property to appellant. We believe the record readily supports the chancellor’s findings in these respects. Our inquiry, however, does not end at this point.

We next must decide whether the one-half interest the appellee purchased from her sister is marital property subject to division under Ark. Code Ann. § 9-12-315 (Supp. 1987). Under § 9-12-315(b), all property acquired by either spouse subsequent to the marriage is marital property, unless it falls within one of five statutory exceptions. See Wagoner v. Wagoner, 294 Ark. 82, 740 S.W.2d 915 (1987); Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984). Of course, the appellee, during her marriage to appellant, acquired the property from her sister but did so, as we concluded above, by using her inherited or nonmarital funds. Based upon the record before us, appellee’s acquisition would appear to be included — if at all — within the exception set out in § 9-12-315(b)(2) which provides as follows:

Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent.

Although our court has not directly construed or interpreted the foregoing exception, other jurisdictions, with identical provisions, have. See Ora Fred Harris, Jr., The Arkansas Marital Property Statute and the Arkansas Appellate Court: Tiptoeing Together Through the Tulips,! UALRL.J. 1,44(1984) (which, in footnote 253, lists twelve states that have statutes that embrace this same exception). In Stevens v. Stevens, 448 A.2d 1366 (Me. 1982), the Supreme Judicial Court of Maine, in considering a provision identical to Arkansas’s “exchange” provision, concluded that only that portion of the property acquired during marriage in exchange for the nonmarital property should be set aside as nonmarital property. The Maine court, adhering to the tracing or source-of-funds theory adopted by that court earlier, further stated that an exchange of a nonmarital interest for other property after marriage will yield only a nonmarital interest proportionate in value in the newly acquired property. See also Tibbetts v. Tibbetts, 406 A.2d 70 (Me. 1979); Hoffmann v. Hoffmann, 676 S.W.2d 817 (Mo. 1984) (en banc).

In Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), this court, relying in part on the Tibbetts case where the Maine court first discussed and applied the tracing or source-of-funds theory, held Mr. Potter was entitled to a separate interest in a lot and house in the amount of $9,656.08, since that sum was directly traceable to the proceeds of the sale of property he owned prior to marriage. Later in Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986), this court said that while the tracing of nonmarital money or property into other forms may be an important tool, or means to an end, we cautioned that tracing is not intended to be an end in itself. In further explanation, we said:

The fact that one spouse made contributions to certain property does not necessarily require that those contributions be recognized in the property division upon divorce. It was certainly not our intention to state an opposite point of view in Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983). We have no doubt that the tracing of funds and even the acquisition of property before the marriage or by gift during the marriage might be inconsequential when considered at the dissolution of a marriage that had lasted for many years and had left the parties with decidedly unequal means for supporting themselves in the future.

Based upon the record in the instant case, we discern no reasons why appellee should not be entitled to her nomarital property. No doubt exists that the funds used to purchase the sister’s one-half interest in the house and property were directly traceable to appellee’s nonmarital stock. Therefore, under the source-of-funds theory, she is clearly entitled to an award of, or to be credited with, the purchase amount, or $67,850.13, which was paid on October 30, 1986. Even so, the property, at the time of divorce in July 1987, was valued at $167,500.00 by appellant’s expert witness, and in view of that unrebutted value testimony, it appears either that the appellee purchased her sister’s undivided interest at a below market price or the property appreciated in value between the time of purchase and the date of the parties’ divorce. Either way, in using the $167,500.00 value figure and crediting the appellee with her one-half nonmarital interest in the property and with her nonmarital funds used to buy her sister’s one-half, appellant would be entitled to a one-half interest, $7,950.00, in the remaining increased value in the property which was $15,900.00.

Appellant next argues he is entitled to an interest in certain First Federal bonds and Baptist Building bonds purchased during the parties’ marriage by appellee with her nonmarital funds and also to an interest in the increase in value of appellee’s stock portfolio. We find no merit in either contention. Unquestionably, appellee used nonmarital funds to acquire the bonds in question, and no evidence countermands that such purchases were no more than an exchange for property and therefore excepted from the definition of marital property pursuant to § 9-12-315(b)(2). Concerning appellant’s claim to an interest in appellee’s stock portfolio (which he concedes is nonmarital), the evidence is far from clear that any increase in values occurred. While appellant claims the portfolio had an initial value of approximately $175,000.00 when appellee inherited the stocks, the appellee argues her account was initially worth $313,936.00, but had decreased to $300,000.00 at the time of trial. In reviewing the record with the accounts and probate petitions and matters attached, we find it impossible to conclude • with any certainty regarding when the appellee’s inherited stocks gained their way into her stock portfolio. We conclude, as did the court of appeals on this point, that there is evidence which clearly supports the chancellor’s failure to find this issue in appellant’s favor.

Finally, appellant argues .the chancellor erred in failing to state reasons for not making an equal distribution of certain personal property as is required under Ark. Code Ann. § 9-12-315. The personal property items to which appellant makes reference were listed on two sheets, only one of which has been abstracted. Without both sheets, we are unable to determine how or to whom all of the items were divided. Suffice it to say, a conflict exists between the parties as to the worth of the items each received, and based upon the record, we are unable to say the chancellor was clearly wrong.

For the above reasons, we affirm the trial court’s decision except we reverse that part of its holding concerning the house and property and remand with directions to award appellant an interest in such property in the sum of $7,950.00.

Holt, C.J., and Newbern, J., concur. Purtle, J., dissents.

David Newbern, Justice,

concurring. The majority opinion reaches the correct result, however, I find the discussion about tenancies by the entireties to be unnecessary and confusing. When funds owned by one spouse are deposited in a bank account held jointly with the other spouse, there is a strong presumption that the spouse who makes the deposit has transferred an interest in the funds to the other spouse by gift. Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975). The presumption may be overcome by “clear, positive, unequivocal, unmistakable, strong, and convincing evidence” as Justice Fogleman wrote in the Ramsey case and as the majority opinion states here. We need only say that there was evidence of that type before the chancellor. As the presumption of gift was overcome, Donald Jackson owned no part of the money Emily Joy Jackson used to purchase the sister’s interest in the house. That interest fell within the “acquired in exchange” exception to marital property. Ark. Code Ann. § 9-12-315(b)(2).

Holt, C.J., joins this opinion.

John I. Purtle, Justice,

dissenting. I cannot “trip it . . . [o] n the light fantastic toe” so spryly as the majority. Neither can I turn to Day v. Day as a cure-all for every marital property question. As for me, I must turn to the law as written.

Ark. Code Ann. § 9-12-315(b) (1987) states:

(b) For the purpose of this section “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise, or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of divorce from bed and board;
(4) Property excluded by valid agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage.

In the present case the funds in the joint bank account were obviously acquired subsequent to the marriage. Moreover, the bank account does not fit into any of the five categories excepted from the basic rule.

It seems to me that the exact issue before us at this time was considered by the Court of Appeals in Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988), where it was stated:

[0]nce property, whether personal or real, is placed in the names of persons who are husband and wife, without specifying the manner in which they take, there is a presumption that they own the property as tenants by the entirety and it takes clear and convincing evidence to overcome that presumption.

Apparently we are going to have two types of property involving joint bank accounts held by a husband and wife. One rule will apply to the Loftons and another to the Jacksons. We will thereafter have problems deciding whether it is a Lofton case or a Jackson case.

Lofton had acquired property by inheritance from his parents. He bought his brother’s half interest in the property. The purchased property was held to be marital property. In the present case the appellee inherited property from her parents. Subsequently she placed some of these funds in a joint account with her husband. These funds were in turn used to purchase the sister’s half interest in the inherited residence. I can find no distinction in the facts of the two cases.

The appellee does not offer to refund to the appellant the amount of money which he had deposited in their account. The $31,000 he received was from the sale of property he owned prior to the marriage. If the chancellor felt a duty to trace the appellee’s money from her separate funds through the joint checking account, he should have also felt the duty to trace the appellant’s separate funds through the checking account. Either the appellant should be given credit for the $31,000 of non-marital funds he deposited in the account, or the appellee should not be given credit for the funds which she “ran through their checking account” to purchase the sister’s interest in the house.

We should either accept the “source-of-funds” theory and “tracing” as recognized in Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), or reject it. We should not continue to trip the light fantastic through the law.

       The court in McEntire offered a caveat that in a proper case, fraud or some other remedy may still be available to sustain an action to recover funds withdrawn or diverted by a co-tenant.

       On this point, the dissenting opinion refers to Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988), and erroneously concludes that the court in Lofton reached a different holding to the one here. The court in Lofton, citing McEntire v. McEntire, 267 Ark. 169, 590 S.W.2d 241 (1979), employed the same legal analysis as we have in this case, but the Lofton court merely concluded that, in reviewing the record, no clear and convincing evidence was presented to overcome the presumption that certain certificates of deposit were owned by the parties as tenants by the entirety. In the instant case, we merely affirm the trial court, by holding that clear and convincing evidence was presented to overcome the presumption of ownership as tenants by the entirety.


author: J. L. Hendren, Special Justice. John I. Purtle, Justice,

text:
    Nelson DROPE v. Vickie Eileen OWENS
    88-174
    765 S.W.2d 8
    Supreme Court of Arkansas
    Opinion delivered February 20, 1989
    [Rehearing denied April 10, 1989.]

      Smith, Jernigan, & Smith, by: H. Vann Smith, for appellant.

      Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by Ralph R. Wilson, for appellee.

      Purtle, J., would grant rehearing. Glaze, J., not participating.

   J. L. Hendren, Special Justice.

This tort action arose out of a right-angle intersection collision between appellant’s southbound motorcycle and appellee’s east-bound automobile. Jurisdiction is in this court pursuant to Rule 29(1 )(o).

Plaintiff-appellant Nelson Dr.ope sued defendant-appellee Vickie Owens for personal injuries and property damages sustained by Mr. Drope when his motorcycle struck Ms. Owens’ automobile within the intersection of Warren Drive and Valley Drive in the city of Little Rock. Mr. Drope appeals from a defendant’s verdict returned by a Pulaski County Circuit Court jury and the lower court’s denial of his motion for a new trial.

Appellant relies upon the following two points for reversal:

I. That the [trial] court erred in refusing to allow an expert reconstructionist to testify as to the speed of the motorcycle prior to the accident.
II. That the [trial] court abused its discretion in refusing to grant a new trial in that the verdict was clearly contrary to the preponderance of the evidence and law.

Appellant’s first witness was Little Rock Police Officer Timothy L. Quinn who testified concerning the investigation he made soon after the accident which had happened shortly after 5:00 P.M. on March 21,1986. Officer Quinn described the scene including some 82 feet of skid, scuff and gouge marks in the appellant’s lane of traffic on Warren Drive continuing into the intersection where the impact apparently occurred. He identified photographs of the intersection made from the respective vantage points of appellant on Warren Drive and Appellee on Valley Drive immediately prior to the collision. Stating it was his normal custom to question both drivers involved in an accident and to take statements from them, Officer Quinn related comments made to him by both appellant and appellee. According to Officer Quinn, appellant stated he had been going at least 45 miles per hour before the accident. Warren Drive is posted 20 miles per hour when children are present (there is a school in the area) and 30 miles per hour, when children are not present.

The record shows the trial court, having received indication that appellant’s second witness would be Mr. Larry Williams as an accident reconstruction expert, determined that a proffer of Mr. Williams’ qualifications and testimony should be made before the court ruled on the admissibility of the evidence. In chambers, Mr. Williams stated impressive credentials and qualifications and appellant’s counsel informed the Court Mr. Williams would testify concerning the speed of the motorcycle upon impact. Before ruling, the court inquired how many eyewitnesses were available and was told there would be four. Whereupon, the court ruled that Mr. Williams would not be permitted to testify “because I do not believe his testimony would aid the jury in making a determination that they are not capable of making based on eyewitness testimony.”

In explaining the reasons for his ruling, the trial court stated his apparent belief that experts are frequently used to promote particular theories; that theories aren’t needed when eyewitnesses are available; that if there were no eyewitnesses, there might be some value or use for specialist, technical, expert testimony; and that since all the expert could go on would be the physical findings of some other witness — such as the marks on the pavement made partly from the tires and partly from the gouge when the motorcycle turned on its side — it was the Court’s view that it would be impossible for an expert to come up with a reasonable conclusion as to speed under the circumstances.

Appellant’s counsel made the following proffer:

Mr. Williams would testify that, based on his examination of the police report, the number of feet of skid marks, gouges and measurements of Officer Quinn, based on his conversations with Nelson Drope and the officer, that Mr. Drope was traveling between 29 and 34 miles per hour.

The record does not disclose any specific contention to the trial court on the part of appellant that Mr. Williams’ testimony was necessary to help the jurors understand some matter which was otherwise beyond their comprehension.

This court has long held, as a general rule, that attempts to reconstruct accidents by means of expert testimony are viewed with disfavor. B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984); Reed v. Humphreys, 237 Ark. 315, 373 S.W.2d 580 (1964); Waters v. Coleman, 235 Ark. 559, 361 S.W.2d 268 (1962); Henshaw v. Henderson, 235 Ark. 130, 359 S.W.2d 436 (1962); Conway v. Hudspeth, 229 Ark. 735, 318 S.W.2d 137 (1958); and Missouri Pac. Ry. Co. v. Barry, 172 Ark. 729, 290 S.W. 942 (1927). However, this court has also consistently recognized exceptions to this general rule where it appears that a particular situation is beyond the jurors’ ability to understand the facts and draw their own conclusions. Price v. Watkins, 283 Ark. 502, 678 S.W.2d 762 (1984); B & J Byers Trucking, Inc. v. Robinson, supra; Wright v. Flagg, 256 Ark. 495, 508 S.W.2d 742 (1974); and Woodward v. Blythe, Adm'r, 249 Ark. 793, 462 S.W.2d 205 (1971).

It has been said that under Uniform Evidence Rule 702, the question is whether specialized knowledge will assist the jury to understand the evidence or determine a fact issue. B & J Byers Trucking, Inc. v. Robinson, supra. Whether or not a particular case should be governed by the general rule or should be treated as an exception thereto, is a matter within the trial judge’s discretion to be upheld on appeal absent an abuse of that discretion. Price v. Watkins, supra; B & J Byers Trucking, Inc. v. Robinson, supra; and Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980).

While the general rule not favoring reconstruction of accidents by expert testimony has been liberalized somewhat since enactment of the Uniform Rules of Evidence (e.g. Price v. Watkins, supra; B & J Byers Trucking, Inc. v. Robinson, supra; and Smith & Vaughn v. Davis, 281 Ark. 122, 663 S.W.2d 165 [1983]), we have continued to follow it. In Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), we said:

The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact issue. Unif. R. Evid. 702; B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the trier of fact’s ability to understand and draw its own conclusions. B & J Byers Trucking, Inc. v. Robinson, supra. Here, lay jurors were fully competent to determine whether the history given by the victim was consistent with sexual abuse.

In Missouri Pac. Ry. Co. v. Biddel, 293 Ark. 142, 732 S.W.2d 473 (1987), we said:

It is also notable that this court has taken the position that the opinion of an expert is not admissible if the point in issue is not beyond the comprehension of the jury. In St. Louis S.W. Ry. Co. v. Jackson [242 Ark. 858, 416 S.W.2d 273 (1967)], we said:
. . . We have consistently held that it is prejudicial error to admit expert testimony on issues which could conveniently be demonstrated to the jury from which they could draw their own conclusions. See S & S Construction Co. v. Stacks, 241 Ark. 1096, 411 S.W.2d 508 (1967). Therefore, we hold that the trial court committed reversible error in admitting the expert testimony on the abnormally dangerous crossing.
We reaffirmed that view more recently in Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986). While we upheld the admission of expert testimony in B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984), there the witness made computations which the jury could not have made on its own.

We agree with appellant that the record shows Mr. Williams is well qualified as an expert accident reconstructionist and that, contrary to the trial court’s view, he could have formulated and expressed an opinion concerning the speed of the motorcycle based on the information available to him. However, these concerns are not controlling on the issue. We further note that the existence or non-existence of eyewitnesses in a given case is likewise not controlling. These matters are but factors to be considered in determining whether or not the testimony of an expert accident reconstructionist is admissible in a given case. In light of our previous holdings, we must agree with the trial court that, in this particular case, the matter of the speed of a motorcyle was not beyond the comprehension or understanding of the jurors. Further, we cannot say the trial court abused his discretion in determining, based upon the proffer and other matters before him, that Mr. Williams’ testimony was not necessary to help the jurors understand the evidence and draw their own conclusions. Accordingly, we find no merit in appellant’s first ground for reversal.

As we have said before, we now say again that the determinations of the need for an expert witness and of the expert witness’ qualifications are matters lying within the trial judge’s discretion, to be upheld upon appeal, absent an abuse of that discretion. With regard to accident reconstruction, the general test for admissibility is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact issue. Among the considerations to be used by the trial judge in determining whether the testimony will aid the trier of fact is whether the situation is beyond the trier of fact’s ability to understand and draw its own conclusions.

Appellant’s second ground for reversal is that the trial court abused his discretion in refusing to grant a new trial and that the verdict was clearly contrary to the preponderance of the evidence and law.

Granting or refusing of a motion for a new trial is a discretionary act by the trial court and the appellate court reverses only where an abuse of discretion is clearly shown. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973). Further, on appeal we must view the evidence in the light most favorable to the appellee and affirm the lower court’s decision if there is any substantial evidence to support the jury verdict. Mallett v. Brannon, 246 Ark. 541, 439 S.W.2d 32 (1969).

With these rules in mind, we review the evidence in this case. The testimony of Officer Quinn has already been summarized above. There were four eyewitnesses to the collision including appellant, appellee, John Drope (appellant’s brother) and Robert W. Harris (a bystander).

Appellant said he saw appellee sitting at the stop sign on Valley Drive when he stopped at a similar stop sign a block away prior to entering Warren Drive and proceeding toward the intersection where appellee already was. He stated appellee started, stopped, started and then stopped again all while he proceeded South on Warren Drive toward its intersection with Valley Drive. He stated he was unable to avoid hitting appellee because of her erratic actions and had to lock his brakes, lay the motorcycle on its side and slide into the side of appellee’s automobile. Appellant admitted telling Officer Quinn he was going between 3 5 and 40 miles per hour but said at the trial he felt his speed was only 25 to 30 miles per hour although there was no speedometer on the motorcycle. John Drope, who was riding a motorcycle behind appellant, testified essentially in accordance with appellant’s testimony.

Appellee said she pulled up to the stop sign on Valley Drive outside the intersection with Warren Drive and then pulled up where she could see. She said she saw appellant and his brother on their motorcycles as they came on to Warren Drive a block away; that she thought she had time to get across the intersection but looked up and saw they were coming very fast and were going to hit her; and that when she saw them coming fast, it appeared appellant was trying to go in front of her car and this is why she stopped. Appellee admitted that she did not come to a complete stop at the stop sign and stated she thought that appellant was coming too fast.

Robert W. Harris testified he saw appellant turn onto Warren Drive without making a complete stop before he did so. He saw the motorcycles proceed down Warren Drive to the intersection with Valley Drive and said appellant was going so fast that he locked his brakes and lost control and there was no way he could have avoided hitting appellee. Mr. Harris testified to his opinion that appellant was driving 45 to 50 miles per hour.

There were no objections to the trial court’s instructions to the jury and we cannot say the evidence in the record was not sufficiently substantial to support the jury’s verdict. Mallett v. Brannon, supra; Arkansas Louisiana Gas Co. v. Wood, 240 Ark. 948, 403 S.W.2d 54 (1966); and Oliver v. Miller, 239 Ark. 1043, 396 S.W.2d 288 (1965). Accordingly, we do not believe the trial court abused his discretion in denying appellant’s motion for a new trial, and we find no merit in the second point for reversal.

Affirmed.

Purtle, J., dissents.

Glaze, J., not participating.

John I. Purtle, Justice,

dissenting. I do not enjoy dissenting from an opinion so well written and so well researched. In fact, the majority opinion correctly states the law as it has been developed in the past. However, I write with the hope of pointing out that the rationale behind these older decisions is not present in today’s society.

Relevant evidence, according to A.R.E. Rule 401, is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 states: “All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State.” Of course the trial court must have discretion in determining the qualifications of a reconstruction expert.

The speed of the vehicles was a matter in sharp dispute in the present case. The investigating officer, who did not witness the accident, gave his testimony concerning the speed of the vehicles at the time of the accident. Certainly evidence on this issue is relevant. All relevant evidence is admissible. It seems to me that if the testimony of one witness concerning speed is relevant, certainly evidence presented by another witness on the same issue is relevant.

In Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971), this court held that expert testimony was necessary in that case for an understanding by the jurors of the physical dynamics and causal relationships involved in the accident. Woodward was rather an unusual case, but the reasons for allowing the testimony of a reconstruction expert are the same in the present case. In a case decided after the uniform rules were adopted, we held that it was proper to permit the testimony of a reconstruction expert. In B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984), we upheld the action of the trial court permitting an officer to testify as a reconstruction expert. The jury in the present case was not shown to have been in any better position to make computations and figure out the physical dynamics and causal relationships involved in the accident than was the jury in Byers.

Our cases should be controlled by the rules of evidence. If evidence is relevant, it is admissible, unless it is excluded by some other rule or law. Otherwise, our cases will continue to be in hopeless conflict.