text:
    Bobbie TATRO, As Personal Representative of the Estate of Arlen D. Tatro, Deceased v. Honorable Don LANGSTON, Circuit Judge
    97-54
    944 S.W.2d 118
    Supreme Court of Arkansas
    Opinion delivered May 19, 1997

      Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by: E. Diane Graham and Rebecca D. Hattabaugh, for petitioner.

      Sexton & Fields, P.L.L.C., by: Stephen H. Meeh, for respondent.
   Tom Glaze, Justice.

On April 3, 1991, Arlen D. Tatro was driving his vehicle when it collided with John Bankord’s. Tatro died the same day as a result of the accident and Bankord sustained injuries due to the collision. Aden’s widow, Bobbie, opened Aden’s estate on May 10, 1991, and was appointed administratrix. The estate’s notice was published on May 17, 1991. All claims against the estate were paid, and on January 22, 1992, the probate court ordered Aden’s estate closed, discharged Bobbie, and released her surety.

Bankord had filed no claim in Tatro’s estate. Instead, on April 4, 1994, and ostensibly within the three-year statute of limitations for negligence claims, Bankord and his wife filed suit in circuit court against Bobbie Tatro, naming her the personal representative of Aden’s estate. Bobbie answered, denying she was any longer the personal representative of Aden’s estate and specifically denying all other allegations in Bankord’s complaint. The Bankords dismissed their complaint without prejudice on April 11, 1995, but they reinstituted their suit on April 9, 1996, to which Bobbie again denied being the personal representative of Aden’s estate.

Bobbie subsequently tiled a motion for summary judgment, alleging that the three-year statute of limitations had expired before the Bankords filed suit, and that under Ark. Code Ann. § 28-53-119 (1987) the Bankords were obliged, but failed, to reopen Tatro’s estate in order to pursue their claims. The Bankords, on the other hand, relied upon Ark. Code Ann. § 28-50-101(a) and (f) (Supp. 1995), and argued that Tatro’s estate continued in legal existence and remained subject to suit in tort even in the absence of initiating the procedure for reopening the estate. Those statutory provisions in § 28-50-101 provide as follows:

(a) STATUTE OF NONCLAIM. Except as provided in §§ 28-50-102 and 28-50-110, all claims against a decedent’s estate . . . shall be forever barred as against the estate, the personal representative, or the heirs and devisees of the decedent, unless verified to the personal representative or filed with the court within three (3) months after the date of the first publication of notice to creditors. However, claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate.
(f) CERTAIN TORT CLAIMS NOT AFFECTED. Notwithstanding the foregoing provisions relating to the time for filing claims against an estate, or any other provisions of this code, a tort claim or tort action against the estate of a deceased tor feasor, to the extent of any recovery which will be satisfied from liability insurance or from uninsured motorist insurance coverage and which will not use, consume, or deplete any assets of the decedent’s estate, may be brought within the limitation period otherwise provided for the tort action. No recovery against the tortfeasor’s estate shall use, consume, diminish, or deplete the assets of the decedent’s estate, and any recovery shall not affect the distribution of the assets of the estate to the heirs, next of kin, legatees, or devisees of the deceased tortfeasor unless a claim is filed in the manner and within the time provided by this code for filing claims against the estate. (Emphasis added.)

Because Arlen Tatro had liability insurance coverage at the time of the April 3, 1991 accident and Bobbie would be merely a nominal party on behalf of her deceased husband’s estate, the Bankords submitted below, and now on appeal that their suit is authorized under provision (f) above.

The circuit court agreed with the Bankords and denied Bobbie’s summary judgment motion. Bobbie then filed her petition for writ of prohibition with us, asserting the circuit court’s ruling was wrong and it was without jurisdiction to proceed. We disagree.

We are first met with the settled rule that prohibition will not lie unless the trial court is clearly without jurisdiction or has acted without authority and the petitioner is unquestionably entitled to such relief. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy by appeal or otherwise. Moreover, it is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Id.

In Vermeer Mfg. Co. v. Steel, 263 Ark. 323, 564 S.W.2d 518 (1978), this court held that, while it was denying the petitioner’s request for writ of prohibition, it was still proper for petitioner to seek prohibition because the three-year statute of limitations for wrongful death was jurisdictional. However, this court in a product-liability case, Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 322, 802 S.W.2d 140, 141 (1991), limited the Vermeer decision by stating the following:

Here, petitioner has faded to establish that the trial court was without jurisdiction. Statutes of limitation constitute an affirmative defense, see ARCP Rule 8(c), but they are generally not jurisdictional. Those that are jurisdictional are tied to the right itself, and not just the remedy. See, eg., Vermeer Mfg. Co. v. Steel, 263 Ark. 323, 564 S.W.2d 518 (1978) (Hmitation for wrongful death actions). Petitioner has not presented us with a case holding that the applicable statute of limitations for product liability cases is jurisdictional. Prohibition is not available as a remedy if the statute of limitation governing a particular proceeding is not jurisdictional, but may only be raised as an affirmative defense. (Cites omitted.) (Emphasis added.)

See 63A Am. Jur. 2d, Prohibition, § 57 (1984) (a defendant in a wrongful death action may seek prohibition on the theory that the statute of limitations contained in a wrongful death act is jurisdictional; . . . But prohibition is not an available remedy if the statute of limitations governing a particular proceeding is not jurisdictional, but may only be raised as an affirmative defense); but see 73 C.J.S. Prohibition § 34B (1983) (time limits set by statute are said to be jurisdictional).

As pointed out in Erwin, we reiterate that statutes of limitation constitute an affirmative defense, and therefore are not jurisdictional; that alone, perhaps, should suffice to deny Bobbie’s present request for prohibition. However, we are mindful of Bobbie’s attempt to come within the Vermeer holding by arguing that, under common law, the Bankords’ right of action in tort expired with the death of the tortfeasor (Arlen). Thus, she submits, any statutory right permitting the Bankords to sue Aden’s estate is jurisdictional and must be strictly followed or no action exists. See White v. Maddux, 227 Ark. 163, 296 S.W.2d 679 (1956); Westbridge v. Byrd, 37 Ark. App. 72, 823 S.W.2d 930 (1992).

Accepting Bobbie’s assertions as correct, we still must deny prohibition because this court has previously held that the plain language in Arkansas’s statute of nonclaim, § 28-50-101(a) and (f), authorizes and extends tort actions for personal injuries in the circumstances in which the Bankords find themselves. See Johnson v. Poore, Ex’x, 266 Ark. 601, 587 S.W.2d 44 (1979). In Johnson, Elvis Johnson, a minor, and his mother filed suit against the decedent Robert Poore’s estate for personal injuries arising out of an accident which they claimed was caused by Poore’s negligence. The statute of nonclaim had expired at the time of filing the suit, and the trial court dismissed Johnson’s and his mother’s lawsuit. The question on appeal was whether Johnson and his mother could maintain their tort actions against Poore’s estate when there was a liability insurance policy in force on Poore’s vehicle at the time of the accident, but the statute of nonclaim had expired. This court held they could. In reversing the circuit court’s dismissal of her complaint, the Johnson court, citing what is now § 28-50-101 (a) and (f), stated the following:

We do not know whether the appellant Johnson will be successful in obtaining a judgment against the estate at the trial of this action. However, we would ignore the plain meaning of the statute if we were to hold that, as a matter of law, [Johnson] is not entitled to a determination of the rights alleged in the complaint. In so holding, we do not imply that [Johnson] would be entitled to obtain satisfaction of any judgment against the assets of the estate of the decedent.
That portion of the complaint filed by the mother of Elvis Johnson on her own behalf is an independent claim, and since it was filed within three years, it is not barred by the nonclaims statute. Therefore, we return the matter to the trial court with directions to reinstate the complaint. (Emphasis added.)

Because Bobbie has faded to show the Bankords’ tort claims are jurisdictionally barred and a writ is clearly warranted, we deny the petition for prohibition.

       It is well settled that only “interested persons” have standing to request the reopening of a decedent’s estate. Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970); Ark. Code Ann. §§ 28-1-102(a)(11) and 28-53-119 (1987). Although Bobbie contends the Bankords are interested persons under § 28-53-119, the Bankords counter that their claims are not against the estate’s assets, but are to recover against Arlen’s liability insurer.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Jackie L. BEERY, Administrator of the Estate of Toni Berry, Deceased v. ST. PAUL FIRE and MARINE INSURANCE COMPANY
    96-197
    944 S.W.2d 838
    Supreme Court of Arkansas
    Opinion delivered May 19, 1997

      Boswell, Tucker, Brewster & Hicks, by: Ted Boswell and John T. Holleman, for appellant.

      Friday, Eldredge & Clark, by: Laura Hensley Smith, Gregory D. Taylor, and Will Bond, for appellee.
   Donald L. Corbin, Justice.

Appellant Jackie L. Berry, Administrator of the Estate of Toni Berry, appeals the judgment of the Saline County Circuit Court implementing the jury’s verdict in favor of Appellee St. Paul Fire and Marine Insurance Company in Appellant’s medical negligence suit. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(15) (as amended by per curiam July 15, 1996). Appellant raises seven points for reversal, while Appellee raises one point on cross-appeal. We find no error and affirm.

Appellant, as the plaintiff in the medical-negligence action below, filed suit against Appellee, insurer for Saline Memorial Hospital, alleging that the hospital’s nursing staff was negligent in its care of the decedent, Toni Berry, ultimately resulting in her death. The decedent was brought to the emergency room at Saline Memorial Hospital on July 25, 1992, complaining of abdominal pain. The decedent was diagnosed with acute vascular embarrassment and was immediately taken to surgery. During surgery, it was discovered that one of the decedent’s intestines had slipped through a tear in her abdominal cavity. The surgeon removed the intestine from the tear and untwisted the knotted intestine. The decedent was then sent to the surgical recovery room in good condition. Unfortunately, on July 26, 1992, a few hours after surgery, the decedent died.

Appellant alleged in his complaint that the hospital was negligent in failing to adequately staff its facility and properly train and supervise its nursing staff. Appellant also alleged that the hospital’s nursing staff was negligent in failing to follow the hospital’s written policies in caring for someone in the decedent’s condition, in failing to properly chart the decedent’s vital signs, and in failing to properly care for, supervise, and monitor the decedent. Trial in this matter commenced on May 8, 1995, and ended on May 19, 1995, with the jury finding in favor of Appellee. Appellant subsequently filed a motion for new trial, citing the same points for reversal that he cites on appeal, but the trial court denied the motion.

Juror Misconduct

For his first point for reversal, Appellant argues that the trial court should have granted his motion for new trial on the ground that Gary Nichols, foreperson of the jury, was employed by Stephens, Inc., at the time of the trial, and that Stephens, Inc., was involved in a $21 million bond issue for Appellee’s insured, Saline Memorial Hospital. In an affidavit filed below, Appellant’s counsel, Mr. Boswell, stated that sometime after the trial had concluded on May 19, 1995, he read a newspaper article dated Wednesday, May 10, 1995, describing the involvement of Stephens, Inc., in a bond-refinancing project for the hospital. Appellant’s counsel explained that he had allowed his newspapers to accumulate and he was thus unaware of the bond project until after the trial had ended. The allegation of misconduct stems from Nichols’s failure to answer affirmatively to the following inquiry made by Appellant’s counsel during voir dire:

Do any of you, as you come here today, have any employment or contractual relationship with Saline Memorial Hospital? Now that would include — or have you ever? Let me add that. That would include if you’re a vendor, if you have a contract relationship with them, if you’ve ever worked with them, or if you had any connection with them that is a business connection or a working relationship. And I would ask that that question be expanded to include, to your knowledge, any member of your immediate family.

Appellant contends that the failure of Nichols to admit to this business connection during voir dire is tantamount to juror misconduct. Appellant contends further that this misconduct is more readily apparent considering the trial judge’s remark, in jest, to Nichols that the judge was in trouble with his neighbor, who also worked for Stephens, Inc., for keeping Nichols out of work for so long.

During the hearing on the motion for new trial, Appellant attempted to question Nichols regarding his employment with Stephens, Inc., and his knowledge, if any, of the business relationship between his employer and the hospital. The trial court refused to allow that type of inquiry pursuant to A.R.E. Rule 606. Upon reading the transcript containing the foregoing questions posed by Appellant’s counsel, the trial court ruled:

The question that I read would not trigger in, I think a lay person’s mind, any response other than does he or she have a relationship. Any business relationship was clear from the jurors’ questionnaire. It could have been delved into in any sort of detail that any counsel thought necessary. But I do not believe the juror responded untruthfully, or in any devious manner by not responding to that question. I do not believe that it was triggered in his or other’s [sic] minds a positive response based on his mere employment by Stephens, Inc.

No verdict shall be void or voidable because any juror shall fail to possess the necessary qualifications unless the juror knowingly answers falsely or knowingly fails to respond to any question on voir dire relating to the qualifications propounded by the court or counsel in any cause. Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989) (citing Ark. Code Ann. § 16-31-107 (1987)). The moving party bears the burden of proving that a reasonable possibility of prejudice resulted from the alleged juror misconduct. Griffin v. Woodall, 319 Ark. 383, 892 S.W.2d 451 (1995). Prejudice is not presumed and we will not reverse the trial court’s denial of a request for new trial on such grounds absent a manifest abuse of the trial court’s discretion. Id.

In Pineview Farms, Inc., 298 Ark. 78, 765 S.W.2d 924, Pineview requested a new trial due to a juror’s failure to disclose during voir dire her husband’s previous business relationship with Pineview, which ended with the juror’s husband being very upset with Pineview. This court held that in order to warrant the granting of a new trial on the grounds of juror misconduct, a party must first demonstrate that a juror failed to honestly answer a question or deliberately concealed a matter during voir dire, and must then further show that a correct response would have provided a valid basis for a challenge for cause. Id. Additionally, the complaining party has the burden of establishing that (1) diligence was used to ascertain the desired information and that (2) he made known to the juror the specific information desired. Id. We will affirm where there is substantial evidence to support a trial court’s finding as to whether a party has met its burden. Id.

In the present case, the series of questions posed to the jurors concerning any relationship that they, or their immediate family members, may have had with the hospital was confusing at best. We cannot say that from those questions a reasonable juror would have understood that Appellant’s counsel was also seeking information as to any relationship his or her employer may have had with the hospital. As such, Appellant did not use due diligence in seeking out the information concerning Nichols’s employer’s relationship to the hospital or Nichols’s position with his employer, nor did he make clear to the potential jurors what particular information he was seeking. Furthermore, Appellant has not shown that a correct response from Nichols would have necessarily warranted his removal for cause, even if there had been any evidence presented, which counsel for Appellant has conceded there was not, showing that Nichols was employed in a “prominent management position,” as Appellant argues. Under such circumstances, the trial court did not abuse its discretion in denying the motion for new trial.

Health Department Letters

For his second point for reversal, Appellant argues that he was prejudiced by the trial court’s refusal to allow him to present letters from the Arkansas Department of Health to Saline Memorial Hospital, in which the Department listed certain deficiencies in the hospital’s operation found during surveys conducted on May 19 and 20, 1988, May 2, 1990, May 27, 1992, and November 10, 1992. Appellant argues that the documents were relevant to the issue of the nurses’ negligence and that they were admissible pursuant to AMI Civ. 3d 601 as evidence of violation of an ordinance or statute. Appellee contends that the survey letters were not relevant to the issue of the nurses’ care of the decedent on July 25 and 26, 1992. Appellee argues further that there is no merit to Appellant’s claim of prejudice because the trial court indicated that it would allow the evidence if Appellant laid the proper foundation for their admission during trial.

The May 1988 survey indicated nursing deficiencies concerning lack of documentation of bedtime nourishment for patients receiving diabetic diets, inadequate floor coverage by registered nurses, and failures to initiate nursing care plans on each patient within twenty-four hours and updating those care plans every twenty-four hours. The May 1990 survey indicated nursing deficiencies in the same three areas previously found in the May 1988 survey, as well as those concerning documentation of patients in restraints, patient discharge planning, improper labeling of expiration dates on pharmaceutical drugs, and failure to properly check “crash charts.” The May 1992 survey noted several nursing deficiencies including a lack of documentation of the revision or update of the nursing care plan to reflect the current status of the patient, insufficient documentation as to patient observation by registered nurses on each shift, and lack of consistent documentation concerning bedtime nourishment to patients on therapeutic diets. The follow-up survey of November 1992 indicated that the documentation deficiencies concerning patient observation by registered nurses and revision of the nursing care plans had not been corrected.

Appellee filed a motion in limine to prohibit introduction of the letters. Appellee argued that the surveys were irrelevant to Appellant’s claim of negligence in that none of the deficiencies pertained to the quality of care received by the decedent, that the first two surveys were too remote in time, and that the vast majority of the surveys had no relation to any deficiencies of the nursing staff on the fourth floor, where the decedent was hospitalized. Appellee contended that Appellant’s own expert witness acknowledged that a care plan for the decedent was initiated within twenty-four hours, and that it was undisputed by Appellee that the plan was not updated because the decedent died before twenty-four hours had expired. Appellee also argued that the fact that the Department may have found certain deviations or violations of its rules and regulations is not evidence of the nurses’ negligence in this case.

A hearing was conducted on the motion prior to trial, during which the trial court examined the letters individually for relevance. After hearing lengthy argument from both sides as to each pertinent point noted on each letter, the trial court granted the motion in limine on the grounds that the survey letters were irrelevant to the issue of the type of care the decedent received from the hospital’s nurses during July 1992. The trial court did, however, indicate that should the documents become relevant at some point during the testimony or should Appellant succeed in laying a foundation indicating that these particular deficiencies contributed to the decedent’s death, the letters could be admitted.

We find no error in the trial court’s ruling that the documents were not relevant to the issue of whether the hospital’s nursing staff was negligent in the care of the decedent, especially given that the court indicated a willingness to allow such evidence should Appellant be able to demonstrate their relevance as the testimony was developed. Appellant never attempted to gain the admission of the survey letters at any later point in the trial; rather, Appellant merely made a proffer of the documents before any testimony had been taken. We will not reverse a trial court’s ruling on the relevancy of evidence absent an abuse of discretion. Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). Appellant has failed to demonstrate such an abuse of discretion.

Improper Conduct by the Trial Court

For his third point for reversal, Appellant argues that the jury was prejudiced against his case due to the trial court’s improper and stern rebuke of his counsel. Appellant argues further that the trial court acted improperly by accepting a gift from the jury.

During the trial, while one of Appellant’s counsel, Mr. Holleman, was examining a witness, Appellee’s counsel, Ms. Smith, objected. The trial court then instructed Mr. Holleman to ask his question in a hypothetical context. Mr. Holleman continued with his questioning when Ms. Smith again objected. The trial court sustained the objection. At that point, the following exchange took place between the trial court and Appellant’s other counsel, Mr. Boswell:

MR. BOSWELL: May I approach the bench, Your Honor?

THE COURT: No, sir.

MR. BOSWELL: Sir?

THE COURT: No. You may ask it in a hypothetical.

MR. BOSWELL: Plaintiffs [sic] move for a mistrial.

THE COURT: Denied.

Mr. Holleman then continued his questioning of the witness.

Appellee denies that the trial court’s remarks amounted to a rebuke of Appellant’s counsel. Appellee maintains that the trial court had been patient with counsel for both sides and that the particular exchange of words cited by Appellant had been preceded by approximately fifty bench conferences, conducted at the requests of both parties.

Remarks of a trial court do not amount to prejudicial error unless they constitute an “unmerited rebuke” giving the jury the impression that defense counsel is being ridiculed. Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974), cert. denied, 421 U.S. 930 (1975). There is no prejudice where the record reveals that the trial judge was merely irritated at defense counsel’s trial tactics. Id.; see also Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

From our reading of the foregoing exchange of words, it is not evident that the trial court’s remarks amounted to an unmerited rebuke of Appellant’s counsel. Moreover, it does not appear from the trial court’s remarks that the court was even irritated with counsel. It is the trial court’s duty to maintain order and proper decorum in the courtroom, which includes the ability to control the flow of the examination of witnesses and the presentation of evidence. See Rules of Professional Conduct Canon 3(B)(3); A.R.E. Rule 611. We thus conclude that the trial court’s conduct was not at all improper, let alone rising to the level of the serious allegation of judicial misconduct.

Appellant’s next contention of misconduct involves the judge and some members of his staff receiving small gifts from the jury, namely nail clippers, files, and a penknife. Appellant was aware of the gifts during the trial because the trial court thanked the jurors for the tokens in open court, in the presence of both parties. In denying the motion for new trial, the trial court stated that the gifts were acknowledged in open court and that Appellant should have objected at that time.

We agree with the trial court that Appellant should have objected at the first opportunity when the gift was brought to the attention of the parties. A contemporaneous objection is necessary in order to preserve an issue for appellate review. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995). Appellant’s failure to make a contemporaneous objection below precludes our review of the issue on appeal.

Remarks During Opening Statement

For his next two points for reversal, Appellant argues that the trial court erred in refusing to grant a new trial due to Appellee’s counsel’s remarks made during opening statement involving an alleged misstatement of law and counsel’s use of a chart, which listed possible causes of the decedent’s death.

The alleged misstatement of law involved Appellee’s counsel’s remarks regarding the nurses’ use of their professional medical judgment in caring for patients. Appellant argues that the use of such language improperly apprised the jury of the wrong standard of care in this case. The record reflects that Appellee’s counsel stated:

[N]ursing is not an exact science. There are a lot of unknowns about what happens to a human body during and after surgery. And the medicinal trial in this case is that of several different people, human beings, nurses, who were exercising their professional medical judgment in taking care of a patient after surgery.

When Appellant objected below, the trial court sustained the objection. In response to the trial court’s inquiry as to what relief he was seeking, Appellant indicated that he was asking that Appellee not be permitted to make reference to the defense in any way utilizing “nurse’s judgment.” The trial court instructed Appellee’s counsel to refrain from using that term and stated that it would instruct the jury as to the relevant law at the appropriate time. Additionally, the trial court offered to give the jury a cautionary instruction on the issue, but Appellant declined the offer.

Appellant now argues that the remarks by defense counsel constituted reversible error. We disagree. Given the context in which the term was used, we are not persuaded that such remarks amounted to an improper instruction as to the relevant standard of care. Appellant has failed to demonstrate how counsel’s remarks prejudiced him, other than the bare allegation that the remarks constituted reversible error. Furthermore, Appellant is entitled to no relief on appeal because he was the prevailing party on this issue in the trial court and because he received all the relief he requested. Kelley v. Medlin, 309 Ark. 146, 827 S.W.2d 655 (1992). Appellant refused the trial court’s offer of a cautionary instruction to the jury, thus he should not now be heard to complain on appeal.

Appellant next contends that it was reversible error for Appellee’s counsel to use a chart during opening statement to describe how Appellee’s experts would testify regarding possible causes of the decedent’s death. Appellant objected below to the fact that the chart referred to “causes of death,” as it implied to the jury that Appellee’s expert witnesses would testify to the exact cause of death. Appellant subsequently moved for a mistrial, arguing that defense counsel’s use of the chart violated the trial court’s previous ruling on Appellant’s motion in limine. The trial court denied the motion.

We find no merit to this argument. Contrary to Appellant’s assertion, the trial court’s ruling did not prohibit Appellee’s experts from testifying as to the possible causes of death; instead, the trial court merely ruled that Appellee’s experts would not be able to testify differently than they had in their depositions. Notwithstanding its previous ruling, the trial court instructed Appellee’s counsel to clarify to the jury that the causes of death that were listed on the chart were only possible causes of death. The chart itself was not admitted into evidence for the jury to consider; rather, it was used for demonstrative purposes only. Thus, under those circumstances, we can hardly conclude that the trial court abused its discretion in denying Appellant’s motion for a new trial on this issue.

Use of “Time Line"

For his next point for reversal, Appellant argues that the trial court abused its discretion in allowing Appellee to use a “time line,” which listed specific times of events pertaining to the nursing care of decedent, during direct examination of its witnesses. Appellant contends that because the chart had been pre-marked by Appellee’s counsel with the various times involved, the “time line” improperly shaped the witnesses’ testimony and violated the trial court’s invocation of A.R.E. Rule 615.

Appellee argued that the “time line” was merely used as a demonstrative tool to fill in the relevant times and events as each of the witnesses testified. The trial court allowed the use of the chart provided that nothing more was filled in and that no indications were made to it by Appellee’s counsel until after the witnesses had given their testimony. The “time line” was not introduced into evidence for the jury’s consideration; rather, it was used strictly for demonstrative purposes only.

The admissibility and use of demonstrative evidence is a matter falling within the wide discretion of the trial court. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Appellant offers no convincing authority or argument in support of his contention and thus, he has failed to show that the trial court abused its discretion in allowing the use of such a demonstrative aid. We will not consider assignments of error that are unsupported by convincing legal authority or argument. Schmidt v. Pearson, Evans, & Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996).

Failure to Remove Jurors for Cause

For his final point for reversal, Appellant argues that the trial court erred in failing to excuse for cause two potential jurors, Mr. McClanahan and Ms. Peterson. Appellant asserts that the court’s failure to excuse those two persons for cause forced him to accept two other jurors that he would have otherwise removed from the panel.

During Appellant’s voir dire of the potential jurors, Mr. McClanahan indicated that he did not understand why Appellant was not required to prove his claim beyond a reasonable doubt. When asked by Appellee’s counsel whether he would listen to the judge’s instructions and follow the law as instructed, Mr. McClanahan indicated that he would follow the law. Appellant later moved to strike Mr. McClanahan for cause on the ground that he would hold the Appellant to a higher standard of proof than was required by law. The trial court refused to strike the juror due to the fact that he had indicated that he would follow the law as instructed by the court. The trial court further remarked that it was Mr. McClanahan’s first time to sit on any type of jury and that, as such, he was bound to be a little confused as to the law, but no more so than any other new juror.

Also during voir dire, Appellant’s counsel questioned Ms. Peterson about her work in a medical laboratory in Little Rock, Arkansas. Appellant’s counsel inquired as to whether Ms. Peterson worked with any physicians associated with Saline Memorial Flospital, and she indicated that she was not aware of any connection with that hospital. Ms. Peterson apparently did some checking during a break and later reported that one of the doctors that she worked for was on the staff of that hospital. In response to further questioning by Appellant’s counsel, Ms. Peterson stated that her working relationship with that doctor would not cause any bias on her part. The trial court denied the motion to excuse Ms. Peterson for cause on the basis that Ms. Peterson had stated unequivocally that her working relationship with that particular doctor would not cause her any problems in hearing the case.

The following day, after the jury had been chosen and qualified to hear the case, Appellant moved to “complete” his motion to excuse jurors McClanahan and Peterson for cause. Appellant argued that because the trial court had refused to strike Mr. McClanahan and Ms. Peterson for cause, Appellant was forced to use two of its three peremptory challenges to remove the jurors and was thus unable to use those challenges on two additional jurors, Mr. Shepard and Mr. Wood. The trial court held that because the jury had already been qualified, it would not entertain Appellant’s motion. The record reflects that Mr. Shepard and Mr. Wood sat on the jury and that Appellant exhausted all of his peremptory challenges. Interestingly, the record further reflects that Ms. Peterson also sat on the jury, contrary to Appellant’s claim that he had been forced to use one of his peremptory challenges to remove her.

To preserve for appeal an objection to an empaneled juror, a party is required to have exhausted his or her peremptory challenges and must show that he or she was forced to accept a juror who should have been excused for cause. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). Persons comprising the venire are presumed to be unbiased and qualified to serve, and the burden is on the party challenging a juror to prove actual bias. Id. When a juror states that he or she can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entided by law, a trial court may find the juror acceptable. Id. The issue of a juror’s qualifications lies within the sound discretion of the trial court and we will not reverse such decision absent an abuse of discretion. Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991).

In the present case, it is clear that Appellant did not make a motion to have Mr. Shepard or Mr. Wood excused for cause. The only objection to either one of those jurors was made after the jury had already been qualified and seated, and was further not made on the basis that the two jurors should have been struck for cause, only that Appellant would have used his peremptory challenges to remove them from the jury. The trial court did not abuse its discretion in refusing to entertain the late motion or in refusing to excuse the first two jurors for cause, as Appellant failed to demonstrate that they were biased or otherwise unqualified to sit on the jury.

Based upon the foregoing reasons, we conclude the trial court did not abuse its discretion in refusing to grant Appellant’s motion for new trial and we affirm the judgment in favor of Appellee. Hence, we do not reach the issue on cross-appeal, whether the Boswell firm should have been disqualified from representing Appellant in this matter, as our decision to affirm on appeal renders that issue moot.

Leo “Bud” Carney and Norman Mark Klappenbach, Sp.JJ., join in this opinion.

Glaze and Thornton, JJ., not participating.


author: Ray Thornton, Justice.

text:
    Melissa STEPHENS v. STATE of Arkansas
    CR 96-403
    944 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered May 19, 1997

      Office of the Public Defender, by: Theresa S. Nazario, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Melissa Stephens was convicted of filing a false report with a law enforcement agency. She challenges her conviction, raising the question whether our criminal statute prohibiting the filing of a false report with a law enforcement agency is violated when the false statement is made by a person other than the one who actually called the police to report the crime. She asserts that the trial court erred when it denied her motion for directed verdict, in which she argued that the State had failed to prove that she “filed” the report. We find no error and affirm.

The facts surrounding her conviction are as follows. Appellant’s boyfriend, Ron Mettetal, told her to ask her friend Sherry Taylor if she had given John Richards permission to take $600.00 from cash savings, which Sherry was holding in her apartment to buy equipment to treat her sick child. Appellant gave Sherry a detailed but fictitious account of how Richards told her that Sherry had given him permission to go into her apartment and take the money, that he said that he knew where the money was, and later that he asked appellant to go to Florida with him and fanned out six one-hundred dollar bills from his pocket.

Sherry and her boyfriend, Curt Ayers, went to the apartment and discovered that the amount of $600.00 was indeed missing. They called the police, and appellant came to Sherry’s apartment and repeated the fictitious account to Officer Michael LeBlanc.

Later that evening appellant arranged a meeting with Richards at a parking lot, where Mettetal and Ayers forced him into the car. Appellant drove them to the police station, where they delivered Richards into the custody of the police. At the police station, appellant gave a statement to Detective Debra Crews maintaining that Richards had told her that Sherry gave him permission to borrow $600.00, and that the next day Richards had shown her six one-hundred dollar bills.

Richards, who was interviewed by another officer at the station, denied taking the money, but said that he would pay it back to prevent any hard feelings. He was arrested and charged, but was released pending trial.

Shordy before Richards’s trial date, the State became concerned about discrepancies in the stories, and interviewed appellant again on a prosecutor’s subpoena. Upon being confronted with these discrepancies, appellant admitted that her earlier account was false. She said that she told Sherry that Richards had taken the $600 because Mettetal, who was listening to the phone conversation, had suggested that she say that. She admitted that there was no meeting with Richards where he fanned out six one-hundred dollar bills.

Arkansas Code Annotated § 5-54-122 (Repl. 1993) provides:

(a) For the purpose of this section, “report” means any communication, either written or oral, sworn or unsworn.
(b) A person commits the offense of filing a false report if he files a report with any law enforcement agency or prosecuting attorney’s office of any alleged criminal wrongdoing on the part of another knowing that such report is false.
(c) (1) Filing a false report is a Class D felony if:
(A) The crime is a capital offense, Class Y felony, Class A felony, or Class B felony.
(B) The agency or the office to whom the report is made has expended in excess of five hundred dollars ($500) in order to investigate said report, including the costs of labor; or
(C) Physical injury results to any person as a result of the false report; or
(D) The false report is made in an effort by the person filing said false report to conceal his own criminal activity; or
(E) The false report results in another person being arrested. (2) Otherwise, filing a false report is a Class A misdemeanor.

Under the facts of this case, making a false report would be a Class D felony because the amount of the alleged theft, $600, would constitute a Class B felony; the expenses incurred by the law enforcement offices exceeded $500; and the false report resulted in the arrest of another person.

The thrust of appellant’s argument is that the State did not prove that she “filed” a false report within the meaning of the statute because it was Sherry, and not appellant, who made the call to the police about the theft. When interpreting statutes, this court adheres to the basic rule of statutory construction that gives effect to the intent of the legislature, making use of common sense. Sanders v. State, 310 Ark. 630, 839 S.W.2d 518 (1992).

Here, appellant’s statements to police were the sole links that connected Richards to the disappearance of the money. Further, not only did appellant contact Sherry and tell her Richards had the money and then repeat the story to Officer LeBlanc when he went to Sherry’s apartment to investigate the incident; but she also brought Richards to the police station, where she again reported to police that he took the money. While the statute speaks of “filing a report,” it very clearly does not require that this be a formal written document, but specifically includes in the definition “any communication, either written or oral, sworn or unsworn.” Ark. Code Ann. § 5-54-122(a).

We conclude that appellant’s false statements, made under these circumstances, were prohibited by both the spirit and the letter of the law regarding the filing of a false report. The trial court correctly denied her motion for directed verdict.

Affirmed.


text:
    Vickie VICE v. Lena Loraine ANDREWS and Larry Duane Andrews, Jr.
    96-544
    945 S.W.2d 914
    Supreme Court of Arkansas
    Opinion delivered May 19, 1997

      Hani W. Hashem, for appellant.

      Michael D. Ray, for appellees.
   Ray Thornton, Justice.

Ricky Wilkinson and Lena Loraine Andrews were divorced in Alabama on November 26, 1991. One child, Margaret LeAnn, was born to the couple during their marriage. Lena Loraine later married Larry Duane Andrews, Jr., and they moved to Arkansas. A petition was filed in probate court to allow Larry Duane to adopt the minor child, and Ricky Wilkinson, the biological father, consented to this proposed adoption according to the provisions of Ark. Code Ann. § 9-9-220 (Supp. 1995). On August 16, 1995, the final decree of adoption was entered granting Larry Duane’s adoption of Margaret LeAnn. Appellant, Vickie Vice, is the mother of Ricky Wilkinson, and therefore is the biological grandmother of Margaret LeAnn.

This case presents the issue whether a biological grandmother’s statutory right to petition for visitation can withstand a motion to dismiss on grounds that an adoption terminated the legal relationship between the child and her biological grandmother. The chancery court found that the adoption, which was granted with the consent of the biological father, not only terminated any relationship he might have with his daughter, but also terminated any rights of visitation which his mother, Ms. Vice, might claim. We agree and affirm.

From the time of King Solomon, the decision as to which of two competing claimants should be allowed to nurture and rear a young child has challenged the best efforts of our institutions of jurisprudence. Unlike many controversies whose resolution depends upon a judgment as to which party is right and which party is wrong, a choice between the rights of an adopting parent and visitation by a biological grandparent requires a decision between parties who truly and sincerely care for the child.

The public policy regarding this issue has been established by legislation. The laws relating to adoption are derived from statutes; and at common law, a grandparent could not maintain an action for visitation rights to a grandchild except as a party to a custody proceeding. Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994) (citing Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981)). We have often relied on our rule that any right that a grandparent possesses must be either derived from statutes or conferred by a court of competent jurisdiction pursuant to statute. Id. at 19, 889 S.W.2d at 730 (citing Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 619 (1981)).

In recent years, Arkansas statutory law has become more liberal in establishing grandparents’ rights. In 1975, the legislature provided for grandparent visitation in the event of divorce or custody proceedings. Ark. Stat. Ann. § 34-1211.1 (Supp. 1983). A later amendment enacted a very broad standard for grandparent visitation and allowed visitation to a grandparent “regardless of the marital status of the parents of the child or the relationship of the grandparents to the person having custody of the child.” Ark. Stat. Ann. § 34-1211.2 (Supp. 1985). In 1987, the legislature again revised this area of statutory law and granted courts permissive authority to allow grandparents visitation in situations where the “relationship between the parents of the child has been severed by death, divorce, or legal separation.” Ark. Code Ann. § 9-13-103(a)(1)(A) (Supp. 1995). This is the current law, which Ms. Vice cites as applicable to the present case.

If there had been no adoption, the provisions of Ark. Code Ann. § 9-13-103 permitting grandparent visitation privileges would be the controlling statute. However, not only were Margaret LeAnn’s parents divorced, but her biological father voluntarily consented to her adoption by a stepparent.

Even as grandparent’s visitation rights have been articulated by statutory expressions of public policy, so also have there been statutory declarations of public policy favoring the rights of an adoptive family over the interests of biological relatives. Except with respect to the adopting parent’s spouse and his or her relatives, the effect of the final decree of adoption is to “terminate all legal relationships between the adopted individual and his natural relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives for all purposes.” Ark. Code Ann. § 9-9-215(a)(l) (Supp. 1995). When a natural parent consents to the adoption of a child by another person, the consenting parent’s relatives lose their legal rights to visitation because such rights are derivative of the consenting parent’s rights and likewise are terminated when parental rights are ended. See Chauncey Brummer and Era Looney, Grandparent Rights in Custody, Adoption, and Visitation Cases, 39 Ark. L. Rev. 259 (1985).

In Suster v. Arkansas Dep’t of Human Services, 314 Ark. 92, 858 S.W.2d 122 (1993), we interpreted Ark. Code Ann. § 9-9-215 (a)(1) as an expression of public policy favoring a complete severance of the relationship between the adopted child and its biological family in order to further the best interest of the child. Id. at 97, 858 S.W.2d at 125. Because all legal relationships terminate once a child is adopted, a biological grandparent is no longer legally entitled to visitation privileges. Id. In Suster, we reiterated that it is “unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring grandparents and other blood kin. . . .” Id. (quoting Wilson v. Wallace, 274 Ark. 48, 50, 622 S.W.2d 164, 166 (1981)).

A recent modification of this complete termination of grandparents’ rights was adopted by Act No. 889 of 1995, codified at Ark. Code Ann. § 9-9-215, which enacted an exception to the termination of grandparent’s visitation rights by the following language:

However, in cases where a natural or adoptive parent dies before a petition for adoption has been filed by a step-parent of the minor to be adopted the Court may grant visitation rights to the parents of the deceased natural or adoptive parent of the child if such parents of the deceased natural or adoptive parent had a close relationship with the child prior to the filing of a petition for step-parent adoption, and if such visitation rights are in the best interest of the child.

Id. § 9-9-215(a)(l). This limited exception does not apply to the facts in the case before us, as this statute specifically relates to visitation rights derived through a deceased parent when those rights are asserted before the adoption decree is entered. However, the statutory language confirms the principle that with very narrow and specific exceptions, all legal relationships between the adopted individual and her natural relatives are terminated upon adoption.

Ms. Vice also states that she received no notice of the adoption and that she previously had acted in loco parentis to Margaret LeAnn because she allowed the child to live in her home for several months. However, in her appeal she does not provide authority for any claim that she was legally entitled to notice or deprived of any right to intervene in the adoption proceedings.

We agree with the chancellor’s determination that Ms. Vice’s rights were derivative of her son’s rights, and that the effect of Ark. Code Ann. § 9-13-215 was to terminate those rights. We hold that the chancellor did not err in granting the motion to dismiss appellant’s petition for visitation.

Affirmed.


author: Per Curiam.

text:
    Excel WARREN v. STATE of Arkansas
    CR 97-166
    943 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered May 19, 1997
   Per Curiam.

On April 21, 1997, we issued an order for attorney Zimmery Crutcher to appear before this court at 9:00 a.m., Monday, May 5, 1997, to show cause why he should not be held in contempt of court for failure to perfect the appeal in this case.

Zimmery Crutcher denies responsibility by pleading not guilty, and requests a hearing. Therefore, we appoint the Honorable Jack Lessenberry as a master to conduct the hearing. After the hearing, we direct the master to make his findings of fact, and file them with the court. Upon receiving the master’s findings, we will decide whether counsel should be held in contempt.


author: David Newbern, Justice.

text:
    Scarlett DeHART v. WAL-MART STORES, INC.
    96-546
    946 S.W.2d 647
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Young & Finley, by: Richard H. Young, for appellant.

      Williams & Anderson, by: Steven Quattlebaum and Thomas G. Williams, for appellee.
   David Newbern, Justice.

Scarlett DeHart sued Wal-Mart Stores, Inc., alleging that Blair O’Neal, a Wal-Mart pharmacist, negligently reported to police officials that Ms. DeHart might be attempting to obtain a controlled substance by using a fraudulently obtained prescription. Wal-Mart’s motion for summary judgment was granted, and Ms. DeHart has appealed on the ground that there are remaining genuine issues of fact. Ark. R. Civ. P. 56(c). She also contends the judgment was issued prematurely because discovery had not been completed. We dismiss the latter point because it was not raised before the Trial Court. We decline to reverse on the former point because we have been given no authority or convincing argument in support of holding that there is a cause of action for negligent reporting or prosecution of suspected crimes.

According to Ms. O’Neal, a woman telephoned the pharmacy and said, “I’d like to call in a prescription for DeHart.” The caller said the prescription was for Scarlett DeHart for twenty-four Darvocet, gave her the directions for usage, then said “Doctor Lipsmeyer” and hung up.

Ms. O’Neal explained that she became suspicious because the directions, though presented in medical vernacular, were given incorrectly. She called Dr. Lipsmeyer’s office and was told that Ms. DeHart was not a patient of the Doctor, and that the prescription call was not made by anyone in the Doctor’s office.

Ms. O’Neal called the Drug Enforcement Agency and reported what had occurred. She was told to stall until they arrived. When Ms. DeHart entered the pharmacy and asked if her prescription was ready, she was asked to wait. Officers arrived, and Ms. DeHart was arrested and charged with fraudulent attempt to procure prescription drugs.

Ms. DeHart alleged she spent twenty-eight days in jail and lost her job as a result of the incident. Ms. DeHart had apparently been convicted previously of uttering bad checks in several counties and was on parole. Attached to Wal-Mart’s motion for summary judgment was the record of a parole-revocation hearing at which testimony concerning the matter of the prescription was taken from the parties and witnesses involved. The evidence was, to say the least, conflicting. It was clear, however, that Ms. O’Neal had not checked the pharmacy computer prior to calling Dr. Lipsmeyer’s office. Had she done so, she said, it would have shown authorized refills. It was also clear that Ms. DeHart had been a patient of Dr. Lipsmeyer who had prescribed Darvocet for her, but that he could not recall whether any refills were ordered.

Also attached to the motion for summary judgment was the affidavit of Robin Wright, a licensed pharmacist. According to the affidavit, Ms. O’Neal, by contacting the DEA, acted in accordance with the standard operating procedure for licensed pharmacists.

In granting the motion for summary judgment, the Trial Court stated there had been no demonstration of a “breach of duty.” We echo that determination here.

1. Summary judgment

The question of the duty, if any, owed a plaintiff alleging negligence is always one of law and never one for the jury. Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 870 S.W.2d 729 (1994); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). Ms. DeHart’s argument must rest on a cause of action for negligent prosecution or negligent reporting. Stated differently, there is no need for us to get to the issue whether there are facts to be determined unless it is clear that, as a legal proposition, Wal-Mart owed a duty to Ms. DeHart that could have been violated in this case.

In the argument portion of her brief, Ms. DeHart cites three cases to support her contention that summary judgment should not have been granted. The first case, Miller v. Nuckolls, 11 Ark. 64 (1905), involved an action “for slander and libel,” and it is cited for the proposition that every citizen has the duty to aid the detection of crime. The second case, St. Louis Sw. Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W.2d 334 (1967), is a railroad crossing accident case, cited for the proposition that compliance with safety regulations does not completely discharge one’s duty to act reasonably. The third case, Lee v. John Doe, 274 Ark. 467, 626 S.W.2d 353 (1981), is cited for its general language concerning the proper standards for the granting of a summary judgment. None of the cases cited touches upon the Trial Court’s determination that Wal-Mart owed to Ms. DeHart no duty which was allegedly violated.

A Texas Court of Appeals has, in a scholarly opinion, illuminated the issue Ms. DeHart has not tackled. In Smith v. Sneed, 938 S.W.2d 181 (Tex. Ct. App. — Austin 1997), that Court held, in essence, that there is no cause of action for negligently reporting activity thought to be criminal in nature. The question presented concerns the balance between the need to refrain from discouraging citizens from reporting crimes and the need to prevent persons from doing so in a manner that unnecessarily harms the persons reported. As explained by the Texas Court, the requirement of a showing of malice in malicious prosecution actions is a result of the law’s attempt to provide the properly placed fulcrum.

We take no position on the issue in this case, as there has been no attempt to argue that the Trial Court erred in holding that Wal-Mart had no duty to refrain from reporting the incident as it did. The law of negligence requires as an essential element that the plaintiff show that a duty was owed. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988). Although there may be unresolved factual disputes about what happened between Ms. DeHart and Wal-Mart, we affirm the decision because Ms. DeHart has given us no basis to hold that the Trial Court erred in his decision with respect to the duty owed by Wal-Mart to Ms. DeHart.

2. Discovery

Ms. DeHart contends, for the first time on appeal, that the Trial Court should not have granted the motion for summary judgment while discovery was outstanding. When an argument has not been presented to the Trial Court we will not consider it on appeal as a basis for reversal. Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996); Carr v. General Motors Corp., 322 Ark. 664, 911 S.W.2d 575 (1995).

Affirmed.

Corbin, J., not participating.

Hani Hashem, Special Justice, joins in this opinion.


text:
    Everett FOREMAN v. STATE of Arkansas
    CR 96-1272
    945 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellee.
   David Newbern, Justice.

Everett Foreman and Durell Childress were charged with the murder of Little Rock Police Officer Henry Callanen. They were tried separately. Mr. Childress was convicted of capital murder and sentenced to life imprisonment. We affirmed the judgment on appeal. Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995). Mr. Foreman was convicted of first-degree murder and sentenced to life imprisonment. We reversed the judgment against Mr. Foreman and remanded the case. Foreman v. State, 321 Ark. 167, 901 S.W.2d 902 (1995). Upon retrial, Mr. Foreman was again convicted and again sentenced to life imprisonment. He has raised six points of appeal, none of which requires a second reversal; thus, we affirm the judgment.

Í. Sufficiency of the evidence

Officer Callanen was shot and killed while working, off-duty, for a McDonald’s restaurant. The evidence against Mr. Foreman included a statement he gave to the police after his arrest in which he admitted driving Mr. Childress to the restaurant on the night of the shooting, waiting with Mr. Childress while standing in some bushes behind the restaurant and seeing Officer Callanen emerge, hearing gunshots, running from the scene, and telling his girlfriend, Tracy Brooks, that Mr. Childress had “done something bad.”

Mr. Foreman’s testimony at the trial differed somewhat. He stated that Mr. Childress had said he needed some money and that he knew Mr. Childress was carrying a silver .22 automatic. He said his purpose in going to the restaurant was to get free food from a friend who previously had brought food to him at the rear door. Mr. Foreman testified that he was peering in at the back door when he heard Mr. Childress mention that Officer Callanen had emerged from the restaurant and saw Mr. Childress pull out his pistol. At that point, Mr. Foreman testified, he ran away. He said that he did not know Mr. Childress was planning to rob the restaurant and that he took no part in the attempted robbery or shooting.

The State’s witnesses included Tonya Butler, who lived near the restaurant. Ms. Butler testified that her brother told her it looked like someone was about to rob McDonald’s. She went outside and saw two people in the bushes near the restaurant, one squatting down “peeking” and the other standing up beside the drive-through menu board. She went inside and tried to telephone the restaurant without success. When she came back outside, she saw one person approach the side of the restaurant and then heard gunshots. She then telephoned 911 and saw someone run across her yard.

Anthony Brown testified that he was working at the restaurant on the night of the shooting. He testified that Officer Callanen had arrived around midnight to collect the day’s deposit. As the Officer was getting in his car to depart, Mr. Brown heard a gunshot. Officer Callanen got out of his car to see what was happening. A second shot was fired. Officer Callanen returned fire as he was falling. Mr. Brown’s girlfriend, Carla Jackson, was waiting for him in a car in the restaurant parking lot.

Carla Jackson testified she heard shots and saw a man holding a gun near the restaurant drive-in window. She heard a voice say “drop it.” She drove away but returned to find Officer Callanen on the ground.

Keith Abney, owner of the restaurant, testified that Mr. Foreman had been employed at the restaurant and had on at least two occasions assisted in the closing routine. Mr. Abney testified that Officer Callanen worked as a security guard for the restaurant during Mr. Foreman’s employment there.

Dedric Weems testified he heard Mr. Childress and Mr. Foreman planning a robbery some three weeks or a month before the shooting occurred. He did not know where the robbery was to occur, but he knew it would be somewhere in their neighborhood.

Mr. Foreman’s girlfriend, Tracy Brooks, testified she was with Mr. Foreman the night of the shooting. She lived with Mr. Foreman and his family. Ms. Brooks said she had been questioned by the police after the incident but she could not remember what she had told them. She said the police had been verbally abusive to her and had threatened her and that she said some things to the police in order to help Mr. Foreman. She said that Mr. Foreman, who was upset and crying on the night in question, had not discussed the shooting incident with her and that whatever she had told the police about the incident had come from Mr. Childress who had called the Foreman home that evening. She said that she knew about “the gun” and that she had seen Mr. Foreman and Mr. Childress with the gun that she had, on occasion, obtained from Mr. Foreman and carried in her purse.

Ms. Brooks was cross-examined extensively about a statement she had given to the police shortly after the event in question. For the most part, she said she could not remember having made the remarks contained in the statement. She ultimately admitted, however, that she had told the police that “Pee Wee” (Mr. Foreman’s nickname) had shot the police officer.

The State’s theory was that Mr. Foreman was an accomplice to the crime. Although there was no eye witness who could testify that Mr. Foreman was at the scene throughout the attempted robbery and shooting, there was circumstantial evidence to that effect. When the evidence is circumstantial, a conviction may be sustained if that evidence excludes every other reasonable hypothesis consistent with innocence. Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). Whether every other reasonable hypothesis has been excluded by the evidence is largely a factual determination to be made by the jury. Chism v. State, 312 Ark. 559, 853 S.W.2d 555 (1993); Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979).

Mr. Foreman’s statement to the police and his trial testimony placed him at the scene with another person who was carrying a weapon and had announced his need for money. Ms. Butler said she saw two men behind the restaurant prior to the shooting. She testified she saw a man running past her house after the shooting. Mr. Foreman said he ran prior to the shooting. That evidence, when combined with the testimony that Mr. Foreman and Mr. Childress had been overheard planning a robbery and the evidence that Mr. Foreman knew the restaurant’s closing routine, makes a sufficient circumstantial case to go to the jury for a determination whether Mr. Foreman participated in the crimes charged. It was not error to overrule Mr. Foreman’s motion for a directed verdict.

2. Improper impeachment

The statement given by Ms. Brooks to the police when she was interviewed shortly after the crime was highly inculpatory of Mr. Foreman. The prosecutor was permitted to question Ms. Brooks about her earlier statement for the purpose of impeaching her trial testimony. The Trial Court instructed the jury that the extra-judicial statement of Ms. Brooks could be considered only for the purpose of impeachment. The prosecutor had Ms. Brooks read large segments of the statement in which she told the police that Mr. Foreman had told her that he had shot at Officer Callanen’s car and that Mr. Childress had called to say he thought Mr. Foreman had hit Officer Callanen.

The readings from the statement were interrupted occasionally by questions from the prosecutor referring to Ms. Brooks’s trial testimony and making the impeaching comparison with her statement to the police.

In Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), we roundly condemned the practice of using impeachment as a “subterfuge” for getting before the jury an unsworn, out-of-court statement of a witness that would not otherwise be admissible. We also said the limiting instruction was not sufficient to eliminate the danger of convicting an accused on inadmissible evidence. See also Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983).

The problem with Mr. Foreman’s reliance on the Roberts holding is that the readings by Ms. Brooks from her statement to the police occurred in segments. Long passages of the statement were read with no objection being made. It was not until the prosecutor’s redirect examination that an objection was made. When an objection is not made at the earliest opportunity, it is waived. Laymon v. State, 306 Ark. 377, 814 S.W.2d 901 (1991); Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991). In addition, when the prosecutor responded to the objection by saying she had no way to impeach Ms. Brooks’s testimony other than by having her read from her statement, the Trial Court merely said he could “relate to that.” There was no ruling on the objection. Failure to obtain a ruling would preclude review of the issue even if there had been a timely objection. Bayless v. State, 326 Ark. 869, 935 S.W.2d 534 (1996).

3. Admissibility of pretrial statement

Statements given by accused persons who are in police custody are presumed to be involuntarily given; thus, the burden is on the State to prove voluntariness. As a part of overcoming that burden, the State must produce at a Denno hearing all of the persons who were witnesses to the taking of the statement or explain their absence. When the necessary witnesses are not produced, and no satisfactory explanation of their absence is forthcoming, we hold that evidence of the accused that his statement was involuntarily given “stands uncontradicted.” Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Russey v. State, 257 Ark. 570, 519 S.W.2d 751 (1975).

In our earlier decision in this case, we held that the Trial Court erred in admitting Mr. Foreman’s pretrial statement to the police because the State failed to produce a material witness at the Denno hearing held before the first trial and thereby failed to sustain its burden of proof as to the voluntariness of the statement. We reversed and remanded. Our mandate provided that the case was to be remanded to the Trial Court “for further proceedings to be therein had according to law, and not inconsistent with the opinion herein delivered.” Over Mr. Foreman’s objections, the prosecutor presented the testimony of the material witness at another Denno hearing held prior to the second trial. The officer denied abusing Mr. Foreman and testified that Mr. Foreman’s statement had not been coerced and was voluntary. The statement was later admitted into evidence over Mr. Foreman’s objection.

Mr. Foreman argues that the statement was admitted in the second trial in violation of the law-of-the-case doctrine. According to Mr. Foreman, our holding that the State did not prove the voluntariness of the statement on account of its failure to produce a necessary witness was in essence a “finding” that the statement was involuntarily given and therefore inadmissible. He asserts that, under the law-of-the-case doctrine, the Trial Court in the second trial was required by this finding to suppress the statement.

The question here is whether our previous holding that the State failed to sustain its burden of proof was the “law of the case” that barred the Trial Court from considering the voluntariness issue in a second Denno hearing and admitting the statement. In at least three cases in which we have reversed and remanded because of the State’s failure to produce a witness to an accused’s statement, we have — albeit without discussing the law-of-the-case doctrine — either directed that a second Denno hearing should occur or indicated that one could occur. See Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996); Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982) (Supp. Op. on Denial of Rehearing)(1983); Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974). In the case now before us, we did neither.

The law-of-the-case “doctrine” consists of a set of distinct rules that “have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” 18 Wright, et al., Federal Practice & Procedure: Jurisdiction § 4478, at p. 788 (1981). The particular rule at issue here provides that “inferior tribunals are bound to honor the mandate of superior courts within a single judicial system.” Id. at p. 792. As we have said, “[t]he law of the case doctrine would preclude a trial court on remand . . . from reconsidering earlier decisions made in the case before it.” Christian v. State, 318 Ark. 813, 819, 889 S.W.2d 717, 720 (1994). See also People v. Feagans, 480 N.E.2d 153, 157 (Ill. App. Ct. 1985) (stating “the trial court is bound by the appellate court’s resolution of the issues decided on appeal and must proceed in a manner consistent with the reviewing court’s directions”). See generally Brett T. Parks, McDonald’s Corp. v. Hawkins and “The Law of the Case” Doctrine in Arkansas, 50 Ark. L. Rev. 127 (1997).

The doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. As the commentators have observed, “questions that have not been decided do not become law of the case merely because they could have been decided; at the same time, law of the case principles are applied when a court concludes that an issue was resolved implicitly despite the lack of any explicit statement.” Wright, supra, at p. 789 (emphasis added).

We must reject Mr. Foreman’s argument because it is clear that we did not determine in Foreman I that his custodial statement was involuntary or inadmissible. We made no pronouncement in Foreman I with respect to the voluntariness of the statement. Rather, we held only that the State failed to carry its burden of proving the statement was voluntarily given and that the statement therefore should not have been admitted at trial. Our mandate permitted the Trial Court to conduct further proceedings consistent with our opinion in Foreman I, and the decision to hold a second Denno hearing was in accordance with our mandate.

An Illinois court of appeals dealt with the issue and held that an appellate decision that a conviction must be reversed because of the prosecution’s failure to produce or explain the absence of a witness at a Denno hearing merely rendered the record “insufficient to determine the propriety of the trial court’s denial of a motion to suppress a defendant’s confession.” People v. Feagans, 480 N.E.2d at 158.

Unlike the situation in which the State has done its best, but the overall proof was insufficient to go to the jury, this is an instance of trial error. Had the Trial Court held the statement inadmissible in the absence of the missing witness, the State might well have produced the witness as it ultimately did in the second attempt. There is, of course, no opportunity for a second attempt when a court has directed a verdict of acquittal due to the failure to produce sufficient evidence to go to the jury. A second trial in that instance would violate the prohibition against former jeopardy. Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997); Foster v. State, 290 Ark. 495, 722 S.W.2d 869 (Supp. Op. on Denial of Rehearing) (1987). This situation is fundamentally different.

We adopt the Illinois Court’s rationale and hold that the law-of-the-case doctrine is not a bar to producing the witness at the second Denno hearing.

4. Dedric Weems’s testimony

Before Dedric Weems testified to the conversation that he said he overheard between Mr. Foreman and Mr. Childress, defense counsel made a motion in limine to exclude Mr. Weems’s testimony on the basis that the prosecutor, during Mr. Childress’s trial, had sought to exclude the testimony as untrustworthy. The Trial Court denied the motion.

At trial, defense counsel raised no objection to Mr. Weems’s testimony until after the prosecutor had completed her direct examination of Mr. Weems and had asked him about the conversation between Mr. Childress and Mr. Foreman that he said he had overheard. When the direct examination ended, a side-bar conference was held in which Mr. Foreman’s counsel asked that the testimony be struck as too “speculative” because the incident had occurred “several months or weeks before the McDonald’s incident” and had failed to mention any specific date, time, or victim. The request was denied.

After cross-examination, redirect, and then dismissal of Mr. Weems as a witness, Mr. Foreman’s counsel renewed the objection and added an objection that the testimony violated Ark. R. Evid. 404(b) by accusing Mr. Foreman of a “prior bad act” and suggesting he would commit a robbery because he was a “bad person.” Again, the objection and motion to strike were overruled.

In his testimony, Mr. Weems admitted that he had been smoking “weed” and drinking alcohol when he heard the plans for the robbery. He remembered telling the judge in Mr. Childress’s trial that he was “half asleep” during the conversation he had overheard, and he could not remember the exact time when the conversation occurred.

In this appeal, Mr. Foreman argues that the Trial Court erred in admitting Mr. Weems’s testimony over his objections concerning Rule 404(b) and the speculative nature of the testimony. We do not address these argument because it is clear that the objections were not timely. Watkins v. State, 320 Ark. 163, 167, 895 S.W.2d 532, 534 (1995) (“An issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal.”).

Although Mr. Foreman did raise a timely objection on the basis of his argument that the prosecutor had previously characterized Mr. Weems as an unreliable witness, that objection does not preserve for our review Mr. Foreman’s arguments concerning Rule 404(b) and the allegedly speculative nature of Mr. Weems’s testimony. An appellant must make a specific objection that apprises the Trial Court of his current argument, and he may not change arguments on appeal. Pike v. State, 323 Ark. 56, 912 S.W.2d 431 (1996); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).

5. Joe Childress’s testimony

Tracy Brooks’s statement to the police implicating Mr. Foreman as the person who shot at Officer Callanen was admitted into evidence at the first trial on the ground that she was unavailable to testify. In response, Mr. Foreman presented a statement given by Durell Childress’s brother, Joe Childress, to the police. Joe Childress told the police that his brother told him he was the person who did the shooting.

At the time of the first and second trials, Joe Childress was deceased. In the second trial, Mr. Foreman sought to introduce Joe Childress’s statement. Mr. Foreman’s counsel argued that the statement, although obviously hearsay, should be admitted under Ark. R. Evid. 803(24), which is the residual or “catch-all” exception for statements that have guarantees of trustworthiness equivalent to those supporting the other exceptions to the hearsay rule.

In colloquy between counsel for Mr. Foreman and the prosecutor, the law-of-the-case doctrine was mentioned. Mr. Foreman’s counsel pointed out that the statement had been admitted in the first trial and asserted that the prior Judge’s ruling as to the statement’s admissibility was binding in the second trial.

There is some authority for Mr. Foreman’s position. See, e.g., Commonwealth v. Starr, 664 A.2d 1326 (Pa. 1995). Other authority suggests that the argument is meritless. See, e.g., United States v. Riley, 684 F.2d 542, 545 n.5 (8th Cir. 1982).

Although Mr. Foreman presents an interesting legal question, we decline to address it further because the issue is not preserved for review. Although Mr. Foreman’s abstract suggests that his counsel made an objection based on the law-of-the-case doctrine to the Trial Court, our review of the record shows that defense counsel only discussed the point with the prosecutor. There is no indication that a law-of-the-case argument was made to the Trial Court or that the Judge even heard the colloquy between counsel. The Trial Court’s sole remark concerning Joe Childress’s statement was his ruling on Rule 803(24). Because the Trial Court was not presented with an argument on this point concerning the law of the case, and made no ruling on it, the issue is barred. Terry v. State, supra.

6. Improper argument

In closing argument, the prosecutor implored the jury not to be the “weakest link” in the justice system. Counsel for Mr. Foreman objected and asserted that the remark was improper because it suggested the jury was a part of the prosecution effort. The objection was sustained. Mr. Foreman’s counsel sought a mistrial. The motion was denied.

The jury was instructed that the remarks of counsel are not evidence and that any remarks having no basis in evidence should be disregarded. A mistrial is an extreme remedy to be used only when it is determined that something has occurred that will undoubtedly deprive a party of a fair trial. A trial court has wide discretion when it comes to a motion for a mistrial. See Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Under these circumstances, we hold the Trial Court did not abuse his discretion in refusing a mistrial.

7. Rule 4-3 (h)

In accordance with Supreme Court Rule 4-3 (h), the record has been reviewed for erroneous rulings prejudicial to Mr. Foreman, and none has been found.

Affirmed.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Mikel D. LOTT and Luyen Lott v. The CIRCUIT COURT of Benton County, et al.
    97-16
    945 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Mashburn & Taylor, by: Scott E. Smith, for petitioners.

      Howard L. Stinkard, P.A., by: Howard L. Stinkard and Pat Moran, for respondents.
   David Newbern, Justice.

Cooper Communities, Inc., petitioned the Benton County Court for the establishment of a private road for purposes of gaining access from public roads to a tract of land it owned. The proposed road crosses properties owned by others, including that of the petitioners, Mikel D. and Luyen Lott. The County Court ordered the road established and ordered payment to the Lotts of damages of $798. The Lotts and other landowners whose property would be crossed by the proposed road appealed to the Circuit Court.

Cooper Communities, Inc., sold its tract of land to the Seth Family Trust and, pursuant to Ark. R. Civ. P. 25(c), moved the Circuit Court for an order joining or substituting the Trust in its place in the litigation. An order allowing the Trust to be joined with Cooper Communities, Inc., as a party was entered. The Lotts seek a writ of prohibition, claiming that the joinder deprives the Circuit Court of jurisdiction because the claim is not the same as the one tried by the County Court. We deny the writ.

The initial, exclusive jurisdiction of county courts with respect to matters related to county roads is conferred by Ark. Const, art. 7, § 28. Appeals from decisions of the county courts are taken to the circuit courts. Ark. Const, art. 7, § 33. In support of their claim that the Circuit Court in this case had no jurisdiction, the Lotts cite art. 7, § 28, and two cases. The more recent of the two cited cases is Sharp County v. Northeast Arkansas Planning & Consulting Co., 275 Ark. 172, 628 S.W.2d 559 (1982). There, the claim was for a fee said to be owed by Sharp County to Northeast Arkansas Planning and Consulting Company (“Northeast”). The County Court denied the claim. Northeast appealed, and in the Circuit Court the County alleged lack of jurisdiction because Northeast’s claim was based upon a payment order of a date different from the one alleged in the County Court and because it had reduced the amount of its claim. We held the claim was the same, and we could see no reason for holding that a reduction in the amount sought was prejudicial to the County. Although the case did not involve substitution, or even joinder, of a new party, we wrote the following obiter dictum:

We have held that on appeal from the county court, the circuit court could not allow a substitution of parties since this would permit the circuit court to exercise original jurisdiction, McLain v. Miller County, 180 Ark. 828, 23 S.W.2d 264 (1930)

Sharp County v. Northeast Ark. Planning & Consulting Co., 215 Ark. at 173-74, 628 S.W.2d at 560.

In the McLain case, which is the other decision cited by the Lotts, the original claimant against Miller County was the Miller County Judge who, not surprisingly, was granted relief on his claim by the County Court, which consisted of himself. In the Circuit Court it became apparent that the County Judge had collected from the County a debt that was not even ostensibly owed to him but was owed to his sisters. The Circuit Court overruled the County Judge’s motion to substitute his sisters as the proper claimants because the procedural code did not allow for such a substitution and because original jurisdiction lay in the County Court. We affirmed.

As to the first holding in the McLain case, the law has changed. It is now clear that a substitution of the real party in interest, upon a transfer of interest, is permitted as a procedural matter. Ark. R. Civ. P. 17(a) and 25(c). As to the second holding, concerning jurisdiction of a county court, there is an important distinction between the McLain case and this one. The original plaintiff in the McLain case had no claim in either the County Court or the Circuit Court. He was not even a party to the notes he sought to enforce. To the contrary, the case now before us was prosecuted originally in the County Court by Cooper Communities, Inc., whose standing at that stage of the proceedings is not questioned.

The essence of the Lotts’ argument is that, when a case is appealed, new claims may not be permitted at the appellate level. There is no assertion that the claim has increased or that it differs from the original in any way or that there are new pleadings to be considered by the Circuit Court. While the Lotts offer speculation that the Seth Family Trust may have access needs that differ from those of Cooper Communities, Inc., or may seek a different route for the road, we see no evidence of it.

The writ of prohibition is an extraordinary writ that is only granted when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. Bonnell v. Smith, 322 Ark. 141, 908 S.W.2d 74 (1995); State v. Pulaski County Circuit-Chancery Court, 316 Ark. 473, 872 S.W.2d 854 (1994). On appeal from the County Court, the Circuit Court must try the case de novo. Ark. Code Ann. § 16-67-207 (1987); Pulaski County v. Horton, 224 Ark. 864, 276 S.W.2d 706 (1955). If, however, it turns out that joinder of the Seth Family Trust in some way makes the claim different from the one presented by Cooper Communities to the County Court, then the Circuit Court can take appropriate action. From its decision, whether or not it reaches the merits of the case, an appeal presumably will lie. Nothing presently before us shows that the Circuit Court is wholly without jurisdiction.

Writ denied.

Brown and Imber, JJ., dissent.

Robert L. Brown, Justice,

dissenting. Article 7, § 28, of the Arkansas Constitution provides that county courts “shall have exclusive original jurisdiction in all matters relating to county . . . roads [.] ” The majority opinion would permit a joinder or substitution of a new party on appeal in this case, a position that runs directly counter to the State Constitution and to caselaw. I would grant the writ of prohibition.

Cooper Communities, Inc., filed a petition for a private road in Benton County Court, and the road was established by the county court. Several landowners appealed to circuit court. At the appellate level, the Benton County Circuit Court permitted a new party, the Seth Family Trust, to be joined with Cooper Communities in the appeal because of a transferred interest and, in effect, to assume the role of appellee. The majority opinion concludes that this is appropriate because our civil rule, Ark. R. Civ. P. 25(c), permits substitution or joinder of parties due to a transferred interest. Yet, Rule 25(c) clearly does not apply at the appellate level, as the Court of Appeals has already held. See Constitution State Ins. Co. v. Passmore, 18 Ark. App. 247, 713 S.W.2d 255 (1986) (per curiam). Moreover, to hold that this court’s procedural rules can alter the jurisdictional mandates fixed in the State Constitution is a unique conclusion indeed.

This court has already decided this jurisdictional issue. See McLain v. Miller County, 180 Ark. 828, 23 S.W.2d 264 (1930). In McLain, a county judge first sought to collect on promissory notes issued by the county to his sisters. The county court authorized payment. A taxpayer appealed to circuit court, and that court held the county judge had no interest in the notes. The county judge then tried to substitute his sisters as parties at the circuit court level, and the circuit court denied the motion. We agreed on appeal and said:

An additional reason why the amendment [substituting the sisters as parties] could not be made in this case is that the circuit court had no original jurisdiction of a claim against the county. The county court had exclusive original jurisdiction. The circuit court can try a case of this kind; has jurisdiction to do so only when it is appealed from the county court. To permit an amendment substituting a party in the circuit court in this case, would be permitting the circuit court to exercise original jurisdiction, and this it cannot do.

McLain v. Miller County, 180 Ark. at 835, 23 S.W.2d at 267. See also Madison County v. Nance, 182 Ark. 775, 32 S.W.2d 1073 (1930) (new pleadings and new issues cannot be filed in circuit court in an appeal from county court due to lack of original jurisdiction).

The majority attempts to distinguish the McLain case from the instant case on grounds that the county judge in McLain had no interest in the promissory notes in county court or circuit court. But that analysis misses the mark. The issue in McLain was whether the circuit court could exercise original jurisdiction over the sisters, as the issue in the case at hand is whether the circuit court can assume original jurisdiction over the Seth Family Trust. Of course, the answer in both cases is “no,” as is made abundantly clear in McLain v. Miller County, supra.

The majority assumes the transferred interest from Cooper Communities to the Seth Family Trust is the same. It may or may not be, but in any case that is for the court of original jurisdiction to determine — not the appellate court. We embark down a rocky road when we permit appellate courts to exercise original jurisdiction over new parties and permit new parties to intervene on appeal. It is bad precedent and a case that should not be driven by considerations of judicial economy.

I respectfully dissent.

Imber, J., joins.


author: Tom Glaze, Justice.

text:
    Lonnie Phillip HAZELWOOD v. STATE of Arkansas
    CR 96-1287
    945 SW.2d 365
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997
    [Petition for rehearing denied July 14, 1997.]

      Randel Miller, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Lonnie Hazelwood was convicted of possession of methamphetamine with intent to deliver, possession of cocaine with intent to deliver, and sentenced to forty years and twenty years respectively — the sentences to run concurrendy. His sole point for reversal is that the trial court erred in denying his motion to suppress the evidence seized during a pat-down search after he was arrested. The trial court was correct in its ruling, so we affirm.

On August 8, 1995, Officer Frank Hannah saw a red pickup truck that bore the license plate YLM134, and when he checked, the plate was registered to a different vehicle. He stopped the truck, and learned the driver was Hazelwood, who, when asked for a driver’s license, admitted his license was suspended. Hazel-wood’s wife was with him, so Hannah let her drive the couple home, giving Hazelwood a verbal warning that if Hazelwood was stopped again, he would be subject to arrest. On the next day, Hannah again saw Hazelwood driving the pickup, and Hazelwood saw Hannah. When Hannah turned around to follow Hazel-wood’s truck, Hazelwood sped, doing an estimated fifty miles per hour in a thirty-mile-per-hour zone. The truck hit a curb, and Hannah and his partner, Officer Russ Manning, viewed a black object being thrown out the passenger window. During the chase, Hannah turned on his lights, and then Hazelwood’s vehicle stopped. Officer Hannah instructed Hazelwood to exit his truck, told him he was under arrest and to walk to Officer Manning who was positioned behind the truck. Hannah admonished Hazel-wood not to do anything foolish, indicating Hannah might merely write him a ticket and let him go. While Hannah was talking with Hazelwood’s passenger, Dickie Ray Parnell, Officer Manning patted down and searched Hazelwood, finding two plastic bags of controlled substances and $1,560.00 in Hazelwood’s pockets.

In his appeal, Hazelwood argues the officers’ stop and arrest was not based on reasonable cause, and Manning’s pat-down search was unreasonable and unnecessary to protect the officers’ safety. His argument is meritless. Hazelwood concedes that A.R.Cr.P. Rule 4.1 (a) (iii) provides that a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed any violation of law in the officer’s presence. However, he claims Officers Hannah and Manning had no factual basis for the stop here because the officers never made a radio call before the stop in order to confirm Hazelwood’s driver’s license was still suspended. Hazelwood’s argument ignores Hannah’s earlier knowledge of Hazelwood’s suspended license and his continuing display of a fictitious plate on his truck. See Ark. Code Ann. §§ 27-14-306 and 27-16-303(a)(l) (Repl. 1993). Plus, Hannah and Manning witnessed Hazelwood speeding, his vehicle hitting a curb when taking a corner, and someone throwing a black object out the passenger window during the chase. The officers indisputably observed Hazelwood violate several laws while in their presence.

Hazelwood’s other argument is that, even if the stop and arrest were lawful, Manning’s search of him was not justified. He cites A.R.Cr.P. Rule 12.1 which provides as follows:

An officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused for the following purposes only:
(a) to protect the officer, the accused, or others;
(b) to prevent the escape of the accused;
(c) to furnish appropriate custodial care if the accused is jailed; or
(d) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense.

Hazelwood submits that none of the four purposes listed in Rule 12.1 existed at the time of his stop, and since he was stopped only for a routine traffic offense, there was no basis for a search of his person beyond a safety pat-down. Hazelwood concludes that Manning’s search of Hazelwood’s pockets violated his Fourth Amendment rights and this state’s rules of criminal procedure. He is wrong.

First, Hazelwood fails to mention A.R.Cr.P. Rule 12.2, which establishes the permitted scope of a search by an officer making a lawful warrantless arrest. That rule provides as follows:

An officer making an arrest and the authorized officials at the police station or other place of detention to which the accused is brought may conduct a search of the accused’s garments and personal effects ready to hand, the surface of his body, and the area within his immediate control. (Emphasis added.)

Arkansas criminal rules 12.1 and 12.2 reflect the Supreme Court decisions in Chimel v. California, 395 U.S. 752 (1964) and United States v. Robinson, 414 U.S. 218 (1973). In Chimel, the Court declared that when an arrest is made “it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape” and also “to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” In Robinson, the officer arrested Robinson for driving while his license was revoked, and after arresting him, searched his coat pocket and found heroin in a cigarette package. The District of Columbia Court of Appeals held the search to be unreasonable because there was no evidence to search for, given the nature of the offense, and because the officer’s interest in self protection could have been met by only a frisk of the arrestee. The Supreme Court, however, noted its “fundamental disagreement” with the court of appeals’ suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest, and concluded:

A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment. (Emphasis added.)

Robinson, 414 U.S. at 235.

Here, the officers effected Hazelwood’s lawful arrest, and in doing so, Officer Manning’s contemporaneous search of Hazelwood was permitted and not violative of the Fourth Amendment or Arkansas’s criminal rules. Having found in the course of a lawful search of Hazelwood the two plastic bags of controlled substances, Officer Manning was entitled to seize them as fruits, instrumentalities, or contraband of criminal conduct. Id., 414 U.S. at 236; see also Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991).