text:
    Richard G. BENNETT v. STATE of Arkansas
    CR 91-170
    825 S.W.2d 560
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      Kerr & Hutchinson, by: W. Asa Hutchinson, for appellant.

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

This is appellant’s third appeal, and in each one, he was convicted of first degree murder and sentenced to life imprisonment for the drowning death of his wife. We reversed and remanded the two prior convictions because of errors that occurred at the trial. Bennett v. State, 302 Ark. 179, 789 S.W.2d 436 (1990) (Bennett II); Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988) (Bennett I). In this appeal, the appellant raises six points for reversal. We find no merit in the appellant’s arguments, and therefore affirm.

We first discuss the appellant’s argument that there is insufficient evidence to support the jury’s verdict. After the state presented its case and appellant’s motion for directed verdict was denied, appellant also rested and properly preserved this issue for appeal by renewing his motion. A.R.Cr.P. Rule 36.21(b). As this court has stated numerous times, we treat directed verdict motions as challenges to the sufficiency of the evidence. See, e.g., Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982).

The state’s case against the appellant is built entirely upon circumstantial evidence based mainly on inconsistent statements made by the appellant to various authorities and inconsistencies between those statements and the physical evidence obtained by the officers investigating the drowning. Appellant told the police that his wife fell off the unfinished bridge near Morrison Bluff while they were fishing, and that he jumped into the water in an attempt to save her. Circumstantial evidence can be sufficient to sustain a conviction as it may constitute substantial evidence. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). However, in order for circumstantial evidence to be sufficient to support the finding of guilt in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence. Id. Whether the evidence excludes every other reasonable hypothesis is for the fact finder to determine. Id.

The appellant has challenged the sufficiency of the evidence in both of his previous trials, and the evidence is particularly detailed in Bennett I. There, we set out the state’s evidence bearing on appellant’s guilt, but then mentioned “additional evidence” describing how the appellant’s former girlfriend, Connie Mosier, testified that the appellant had previously commented to her the Morrison Bluff bridge would be a good place to kill someone. This third trial is the first where Mosier has not testified. Mosier testified in the second trial, Bennett II, as a rebuttal witness, but did not testify about the appellant’s previous statement about the bridge. Here, the state anticipated having Mosier testify again as a rebuttal witness, but the appellant rested at the end of the state’s case.

In Bennett II, we refused to address the appellant’s sufficiency of the evidence argument citing the doctrine of law of the case. The doctrine of law of the case prevents an issue raised and decided on first appeal from being raised in a subsequent appeal, unless the evidence materially differs between the appeals. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). Again, we refuse to address the appellant’s sufficiency of the evidence issue because of the law of the case doctrine. Except for Mosier’s testimony, the evidence presented in the Bennett II and the present case was essentially the same evidence.

Relying again on the law of the case doctrine, we summarily dismiss two additional arguments by the appellant. First, the appellant argues that the trial court erred in allowing Sheriff Bill Kimbriel to testify as an expert witness. Kimbriel testified that it was not possible for the appellant, being over six feet tall, to jump from the bridge, a distance of twenty-five feet, into water four-to-five feet deep without breaking his legs and ankles from the impact. Appellant argued this identical point in Bennett II, and we held that the trial court did not abuse its discretion because the sheriff qualified as having considerable experience concerning the subject of his testimony. Kimbriel’s testimony was essentially the same as his testimony in Bennett II, and therefore the law of the case doctrine applies. Next, the appellant argues that the trial court erred in allowing his deceased wife’s daughter, Gloria Good, to testify about the appellant’s behavior after his wife’s death. Ms. Good presented similar testimony in Bennett II, and the appellant failed to raise this issue in his second appeal. The law of the case doctrine prevents considerations of arguments that not only were made but could have been made in a previous appeal. Findley, 307 Ark. 53, 818 S.W.2d 242.

Turning now to issues peculiar to the present appeal, the appellant argues that the trial court erred in denying his motion for a new trial on the basis of juror disqualification. Specifically, the appellant argues that juror Linda Brents was disqualified to act as a juror because she was not a resident of Conway County at the time of the trial. Under Ark. Code Ann. § 16-3 l-102(a)(1) (1987), if a juror does not meet the qualifications set out in Ark. Code Ann. § 16-31-101 (1987), he or she is disqualified to act as a juror. One of these qualifications is that the registered voter must be a resident of the county in which he or she is summoned for jury service. Ms. Brents was a resident of Pope County, but was a registered voter in Conway County. As provided in Ark. Code Ann. § 16-31-107(1987), a disqualified juror does not always necessitate the voiding of a verdict. That statute reads as follows:

No verdict or indictment shall be void of voidable because any juror shall fail to possess any of the qualifications required in this act unless a juror shall knowingly answer falsely any question on voir dire relating to his qualifications propounded by the court or counsel in any cause. A juror who shall knowingly fail to respond audibly or otherwise as is required by the circumstances to make his position known to the court or counsel in response to any question propounded by the court or counsel, the answer to which would reveal a disqualification on the part of the juror, shall be deemed to have answered falsely.

During a hearing on the appellant’s motion for a new trial, Ms. Brents testified that she never made an attempt to conceal her residence during the trial. In fact, on the juror questionnaire, Ms. Brents correctly listed her address as Route 1, Box 343, Atkins, Arkansas, which is located in Pope County. She also stated in this questionnaire that she lived fifteen miles from the courthouse. During the court’s voir dire, the prospective jurors were asked if they were qualified electors of Conway County. Ms. Brents testified that she thought the purpose of the trial judge’s question was to determine if the prospective jurors were registered voters in Conway County; she did not know that she had to live in Conway County to be a juror for the trial.

As the court’s voir dire continued, a prospective juror told the trial judge that she had moved to Pope County and was excused from the jury panel. When asked about this incident at the hearing on appellant’s motion for new trial, Ms. Brents gave the following testimony:

Defense:
Q. Did you wonder whether or not you should have told him (trial judge) that you had moved to Pope County at that time?
A. Well, I did but I didn’t know what to do since I was already picked, so I just sat there and kept my mouth shut ... I didn’t know it mattered. . . .
Cross-examination:
A. Okay, if you had known that you had to live in Conway County to be on the jury, would you have brought that up in court?
A. I would have said something, I wouldn’t have sat out there like a dummy ....
Q. (D)id you realize that she was specifically being excused because she did not live in Conway County?
A. No. I just thought she was moving or something.
Q. She just didn’t want to be on the jury?
A. Uh-huh.

While the state proposes several additional arguments for affirmance on this point, we believe that it is clear from Ms. Brents’ testimony that the trial court could have reasonably determined that Brents did not knowingly answer falsely to any question on voir dire relating to her juror qualifications or conceal her residency in Pope County. Thus, the jury’s verdict is not void or voidable under § 16-31-107, and the trial judge did not abuse his discretion in denying the appellant’s motion for a new trial on this point. Allen v. State, 297 Ark. 155, 760 S.W.2d 69 (1988).

Appellant’s next argument concerns his participation in the defense of his case. Apparently against the advice of his own court-appointed attorney, appellant actively participated in the opening statement and in cross-examining several witnesses. As the trial progressed, the appellant and his attorney were warned that only one person at a time could handle a part of the trial and that they could not “double-team” the prosecutor.

Appellant cross-examined Danny Sorey, an emergency medical technician for the ambulance that took the appellant to the hospital on the night of his wife’s drowning. During cross-examination, the appellant attempted to introduce into evidence certain documents and photographs obtained from his wallet in an attempt to show the items had been water damaged. The state objected to the introduction of these exhibits on the basis of lack of foundation and no chain of custody. Appellant’s attorney then attempted to make an argument on the admissibility of the evidence, but the trial judge prevented the argument because the appellant had been conducting the cross-examination when the objection was made. However, the trial judge did allow the appellant to confer with his attorney before making his argument. The state’s objection was sustained.

The appellant argues that the trial court erred in not allowing his attorney to argue the evidentiary point relying, apparently, on his sixth amendment right to counsel. Appellant correctly cites the law that in order to establish a defendant has voluntarily and intelligently waived his right to counsel, the trial judge must explain to the defendant the risks of proceeding pro se without the assistance of counsel. However, these cases are not applicable in the situation where the appellant chooses to participate in his defense with his appointed attorney, which is commonly known as “hybrid representation.” In Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970), this court held that, in criminal prosecutions, a defendant who does not appear pro se has no absolute right to argue his case to the jury, and where he is represented by counsel, the matter lies within the sound discretion of the trial court in order that the court may maintain order, prevent unnecessary consumption of time, or other undue delay, and preserve the court’s dignity and decorum. See also Monts v. Lessenberry, 305 Ark. 202, 806 S.W.2d 379 (1991).

In sum, the appellant was represented by counsel at his trial, but he chose to conduct parts of his trial himself. When the appellant and his attorney both attempted to conduct the trial and present arguments, the trial judge exercising his discretion only allowed the appellant to proceed. Even so, the appellant was given the right to confer with his attorney before making his argument. We further note that the appellant failed to proffer below, or argue on appeal, how his attorney would have argued the point differently. We see no sixth amendment violation on this point.

Finally, the appellant argues that the trial judge erred in limiting his cross-examination of Sheriff Kimbriel after his testimony that it would be impossible for the appellant to jump off the bridge unharmed. Precisely, the appellant attempted to ask Sheriff Kimbriel, the following question: “Then would you please tell me how an Olympic diver can come off a thirty-two foot board, feet first, and never hit the bottom at nine and half feet? They do it all the time in all the Olympic college meets.” The state objected to the question, and the trial judge instructed the witness that he did not have to answer. But, as the testimony continued, Sheriff Kimbriel stated that there was “a lot of difference between diving and jumping.” Kimbriel partially added that “he had never seen an Olympic diver jump off a ....” at which point appellant interrupted the witness saying, “that’s okay, we won’t go into that.”

The trial judge has considerable discretion in determining the scope of cross-examination. Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). We cannot say that the trial judge abused his discretion in instructing Kimbriel that he did not have to answer the question. Kimbriel was not qualified as an expert on Olympic diving. In addition, from our review of the testimony, we believe that the appellant in fact got an answer to his inquiry but apparently not the reply he was seeking. In fact, appellant voluntarily abandoned this subject altogether after the sheriff responded.

Under Ark. Sup. Ct. R. 11(f), the record has been reviewed concerning the rulings made against the defendant by the trial judge during the trial, and we find no error. For the reasons stated above, we affirm.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Jimmy Wayne RUDD v. STATE of Arkansas
    CR 92-120
    825 S.W.2d 565
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      Mikke Connealy Bracey, for appellant.

      Winston Bryant, Att’y Gen., Catherine Templeton, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals his conviction of burglary and his revocation of probation for which he received consecutive sentences of twenty-four years and ten years. Because of a number of prior convictions, appellant was sentenced as a habitual offender. Appellant argues the trial court erred in allowing the state of introduce into evidence his prior burglary, theft, breaking or entering and forgery convictions. He also claims the evidence was insufficient to support the burglary charge. As his final point for reversal, he contends the trial court erred in its decision to hold appellant’s revocation hearing during an interlude at the burglary trial.

The state’s burglary charge against appellant arose from Mrs. Jonnie Rogers’ claim that appellant broke into and entered her house. Rogers was appellant’s friend and had known him for ten years. At trial, the state presented four witnesses, but its case was largely based upon the testimony of Rogers. She testified that, on March 5,1990, she agreed that appellant could bring his daughter the next day to visit the Rogers children. Because she had to work, she told appellant to come to her house about 4:00 p.m. Rogers said that she was awakened at about 8:15 a.m. on March 6 by someone knocking on her door. By the time Rogers got up and looked out her window, she saw appellant and his daughter getting into his car to drive away. Rogers returned to bed.

Rogers was awakened an hour later after she heard something hit against the back door that rattled the windows. Rogers thought her husband was attempting to gain entrance into the house because she had failed to awaken and to let him in. Instead, after she heard the back door open and went to the kitchen, she saw appellant standing by the refrigerator. He was standing and looking at a scanner sitting on a table, but he had nothing in his hands. Rogers asked appellant what he was doing there, and appellant responded, saying he had seen “two Burnett boys running from the alley and [he] came in to see what they had taken out of her house.” Rogers said that, during the conversation, the appellant pulled off a glove that he had been wearing.

Roger’s neighbors, Willie Blackman and John McCliden, testified as to having seen the appellant at the Rogers’ house on the morning of March 6. Blackman first saw appellant with his daughter at 8:00 a.m., but he later saw appellant alone entering the Rogers’ front yard and saw him walking west on Poplar Street. McCliden said that he, too, saw appellant when appellant “ [came] out from behind the Rogers’ house to sit on the Rogers’ porch for a few minutes.” Officer Barry Miller, who investigated Rogers’ complaint, confirmed that the back door to the Rogers’ house had been forced open. After Officer Miller’s testimony, appellant moved for a directed verdict. The trial court ruled the state had made a prima facie case, and denied appellant’s motion.

Appellant then took the stand, and in his testimony, admitted having entered the Rogers’ house on March 6, but denied he burglarized it. Basically, he claimed that Rogers either lied or was mistaken in testifying that she had told appellant on March 5th to bring his daughter at 4:00 p.m. the next day. His version was that he was to bring his daughter the next morning. Appellant claims when he first talked to Rogers on the morning of March 6th, Rogers said that she had to check on a job. Appellant said that he would go to town and come back later. He denied having broken into the Rogers’ back door when he returned, but instead claimed he saw two people running (apparently from the Rogers’ house) and after hollering at them, he saw the screen door to the Roger’s house was wide open. In addition to denying much of Rogers’ testimony, appellant denied the versions given by Blackman and McCliden about seeing appellant go west on Poplar Street and observing him sitting on the Rogers’ porch.

During the state’s cross-examination of appellant, it proffered five prior convictions, contending their admissibility under A.R.E. Rule 404(b). Over appellant’s objection, the trial court ruled that, because appellant’s defense was based upon mistake, the burglary and theft convictions had independent relevance to show intent and absence of mistake. As a part of its ruling, the trial court further stated that the prejudicial effect in admitting the convictions was outweighed by their probative value. The court further provided the jury with a cautionary instruction directing the evidence of appellant’s prior criminal activity was for the limited purpose of establishing motive, opportunity, intention, plan, knowledge or absence of mistake. The trial court also permitted, under A.R.E. Rule 609, the state’s impeachment of the appellant by the use of two convictions he received for forgery. At the end of his case, the appellant renewed his motion for directed verdict, which again was denied.

In arguing the state’s evidence was insufficient to support a burglary conviction, appellant asserts we must look only at the evidence at the end of the state’s case-in-chief when the appellant first moved for directed verdict. He is in error.

In an attempt to bring Arkansas’s criminal and civil rules into alignment, we amended A.R.Cr.P. Rule 36.21 to add provision (b). In order to preserve a sufficiency of evidence issue on appeal, that provision requires a defendant, challenging the sufficiency of the evidence, to move for a directed verdict both at the end of the state’s case and the close of the entire case. See A.R.Cr.P. Rule 36.21 (b) and its Reporter’s Note. The appellant, however, poses the question how does he preserve his appeal challenging the sufficiency of evidence issue as the evidence stood at the end of the state’s case? Professor LaFave discussed this issue as follows:

... [I]f the motion is made at the conclusion of the prosecution’s case and is denied, then the defendant and his counsel must make the tactical decision of whether to put in evidence and thus waive the right to appeal from the previous denial, or to introduce no evidence and preserve that right. Of course, the former course does not bar defendant from again moving for acquittal at the close of all the evidence, but then the court may properly consider evidence damaging to the defendant that may have come out during the presentation of his case.

LaFave and Israel, 3 Criminal Procedure, § 23.6(a) (1984); see also Wright, Federal Practice and Procedure, Criminal 2d, § 463 (1982).

Although we have not addressed this issue in the context of a criminal case, this court has decided it in the case of Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990). There, we held that a motion for a directed verdict at the close of the plaintiffs case has as its purpose a procedure for determining whether the plaintiff has met the burden of establishing a prima facie case, with that question to be resolved by the court as a matter of law. In the event the motion is overruled, the defendant may elect to stand on the motion or to go forward with the production of additional evidence, in which case he has waived any further reliance upon the former motion.

In the present case, appellant chose to testify in an effort to explain his reasons for being found inside the Rogers’ house. As described above, his version of what occurred on the morning of March 6th conflicted in many respects to the stories given by Rogers, Blackman, McCliden and Officer Miller. In any event, the appellant, by presenting evidence in his defense, waived his former motion for directed verdict, so we decide his challenge to the sufficiency of evidence as the evidence existed at the close of the case when he renewed his motion.

A person commits burglary when he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein an offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a) (1987). The jury must find that the defendant had the purpose to commit a particular offense. Forgy v. State, 302 Ark. 435, 790 S.W.2d 173 (1990) . However, if he had such a purpose in mind, it could have also been shown by circumstantial evidence, if any existed, but such evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Criminal intent cannot be presumed from the mere showing of illegal entry. Forgy, 302 Ark. 435, 790 S.W.2d 173; Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980).

In considering the evidence in the light most favorable to the appellee, Williams v. State, 304 Ark. 509, 804 S. W.2d 346 (1991) , we hold substantial evidence exists to support the verdict finding appellant guilty of burglary. Clearly, the state’s case placed the appellant unlawfully in the Rogers’ house on March 6th, and appellant’s testimony did nothing but enhance the state’s evidence when reading his questionable explanation of why Mrs. Rogers found him in her house. No one testified as to having seen anyone run from the Roger’s house except the appellant. And, in giving his account of what happened, his story differed in both major and minor ways from those versions given by Mrs. Rogers and her neighbors. Clearly, the jury could infer from the evidence that he went to the Rogers’ house on the morning of March 6th, thinking that Mrs. Rogers would not be at home. He went to the back door, and unlawfully forced it open, only to be surprised by Mrs. Rogers’ presence.

Concerning appellant’s purpose when entering, the Roger’s house, the state introduced appellant’s prior theft and burglary convictions to show his intent to commit burglary and to counter appellant’s defense of mistake and his explanation as to why he entered the house. Under A.R.E. Rules 404(b) and 403, evidence of another crime will be admitted only if it has independent relevance and its relevance is not substantially outweighed by the danger of unfair prejudice. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988); see also Smith v. State, 15 Ark. App. 266, 692 S.W.2d 622 (1985); and Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984). The trial judge has wide discretion in determining the admissibility of evidence of other crimes and he will not be reversed on appeal unless he has abused that discretion. Carter, 295 Ark. 218, 221, 748 S.W.2d 127, 128.

The probative value of evidence is not usually as glaring as its prejudicial effect. However, here, without appellant’s prior theft and burglary convictions, the state had no evidence showing appellant’s reason for unlawfully entering the Rogers’ house. As a consequence, the probative value of these convictions became paramount in the state’s obligation to show appellant’s entry was for the purpose of committing a felony. For this reason, we are unable to say the trial judge abused his discretion in allowing appellant’s convictions into evidence.

Appellant’s final argument involves the trial court’s revoking his probation given in an earlier burglary offense before the jury in this case had returned a verdict. While the jury was still deliberating, the trial court conducted a revocation hearing asking the appellant and the state if either of them had additional evidence. Each said no, but appellant suggested it was premature for the trial court to consider the evidence in the instant case until the jury returned its verdict. The court disagreed but stated it would withhold sentencing until it knew the jury’s verdict. The court then revoked appellant’s probation finding that, from the evidence presented, at the very least, appellant was guilty of criminal trespass which is sufficient to show he violated the terms and conditions of good conduct.

This court rejected the argument made here by appellant in Ellerson v. State, 261 Ark. 525, 549 S.W.2d 495 (1977). There, the court held that the revocation of a suspension for a subsequent crime prior to conviction of that crime is not an abuse of discretion in all circumstances. See also Smith v. State, 9 Ark. App. 55, 652 S.W.2d 641 (1983). In support of its holding, the court in Ellerson pointed out that only a preponderance of the evidence was required for a revocation, but a conviction required a finding of guilt beyond a reasonable doubt. Ellerson, 261 Ark. at 531, 549 S.W.2d at 498. The court’s decision in Ellerson is consistent with the language contained in Ark. Code Ann. § 5-4-309(d) (1987), which provides a court may revoke the suspension or probation of a defendant at any time prior to the expiration of the period of his suspension or probation.

In sum, the trial court by law was permitted to conduct the revocation when it did, and in reviewing the record, we conclude the trial court’s decision holding that the appellant, at least, committed criminal trespass was supported by a preponderance of the evidence. These reasons alone require our affirmance of the trial court’s revocation of appellant’s probation.

For the above reasons, we affirm the trial court’s decision in all respects.

       Appellant cites Washington v. State, 268 Ark. 1117, 599 S.W.2d 410 (Ark. App. 1980), but that case is a court of appeals case which was decided prior to A.R.Cr.P. Rule 36.21 (b) and involved a situation where the defendant moved for a directed verdict only at the cjose of the state’s case.

       Appellant cites the cases of Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), and Jones v. State, 274 Ark. 379, 625 S. W.2d 471 (1981), which concern the admissibility of other crimes to show intent, but in arguing these cases, he includes his two foregery convictions which were admitted solely for impeachment purposes under A.R.E. Rule 609. Although we perceive no error in the trial court’s 609 ruling, we mention it to underscore that no Rule 609 argument has been raised concerning the two forgery convictions. And while appellant argued the two convictions were inadmissible in the context of Rule 404(b), we did not consider them as part of our Rule 404(b) analysis.

       Specifically, appellant’s probation was conditioned on leading a law-abiding life, being of good behavior and agreeing not to commit any state, federal or municipal law.


author: Donald L. Corbin, Justice.

text:
    Charles FRANKLIN, et al. v. OSCA, INC.
    91-150
    825 S.W.2d 812
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      Blair Arnold and J.T. Skinner, and David Hodges, for appellants Charles and Barbara Moses Franklin.

      Davidson Law Firm, for appellant ENSCO.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: John E. Moore and Valerie Denton, for appellant Plant Industrial Services, Inc.

      Shackleford, Shackleford & Phillips, P.A., for appellee.
   Donald L. Corbin, Justice.

This appeal arises pursuant to ARCP Rule 54(b) from an order granting summary judgment in favor of appellee-defendant Osea.

On August 18, 1987, appellant-plaintiff Charles Franklin sustained chemical burns when he passed out from heat exhaustion while removing calcium chloride from inside an eight-foot tank at the ENSCO Hazardous Waste Facility in El Dorado. At the time Franklin sustained his injuries, he was employed by Thrift Personnel, Inc. (Thrift), and working under the supervision of Plant Industrial Services, Inc. (Plant). Plant had obtained Franklin’s services after Osea, the prime contractor hired by ENSCO to clean out the tanks, retained Plant to complete the process of cleaning ENSCO’s tanks.

On March 2, 1989, Franklin and his wife filed a personal injury suit against ENSCO and Plant. Plant then sued Osea and Thrift through a third-party complaint seeking contribution; the plaintiffs subsequently amended their complaint to seek damages against Osea and Thrift. On March 1, 1991, the trial court granted Osca’s motion for summary judgment, and entered a nunc pro tunc order stating there was no just reason for delay, and there were dangers of hardships or injustice to the plaintiffs and the third-party plaintiff if the trial were not to proceed as to all defendant or third-party defendants. The order further stated that the danger of hardship or injustice would be alleviated by an immediate appeal. Appellants Franklin, ENSCO, and Plant have all filed separate appeals from the summary judgment in favor of appellee Ósea.

We find it necessary to address once again the requirements of ARCP Rule 54(b). In Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987), we gave notice that merely tracking the language of Rule 54(b) will not suffice. We held that “the record must show facts to support the conclusion that there is some danger of hardship or injustice which would be alleviated by an immediate appeal.” (Emphasis added.) Id. at 575, 726 S.W.2d at 677. In Arkhola, we noted that the trial court’s order failed to contain facts supporting the finding that there was no just reason for delay. However, we accepted the appeal and hoped that our clarification of the rule’s requirements would resolve the confusion.

Unfortunately, the confusion is still evident. In this case, the trial court’s order tracks the language of Rule 54(b), yet does not contain facts to support its determination. On appeal, the various appellants point out the relevant facts. They argue that the question of Ósca’s liability depends in part on the nature of Osca’s relationship with defendants’ Plant and ENSCO. For this reason, a subsequent reversal as to defendant Osea would necessitate a trial in which much of the same testimony would be duplicated, and appellants argue that the expense and time involved in a second trial would constitute a hardship on the parties involved. We admit that our reference to the record in the Arkhola case may have been more confusing than illuminating. Under Rule 54(b), the trial court may enter a final judgment or order in a multiple claims or multiple parties case by making an express determination that there is no reason to delay an appeal. In other words, the court must factually set forth reasons in the final judgment, order, or the record, which can then be abstracted, explaining why a hardship or injustice would result if an appeal is not permitted. Accordingly, we accept the appeal in this case, but henceforth give notice that under the terms of Rule 54(b), the final judgment, order or record must contain specific facts supporting the trial court’s determination that there is some danger of hardship or injustice which would be alleviated by an immediate appeal.

Osea argues that the summary judgment should be upheld because appellants’ response to Osca’s motion for summary judgment did not comply with ARCP Rule 56(e). Osca’s motion for summary judgment alleged that Osea was entitled to judgment as a matter of law based on three factual assertions and an allegedly supporting 102 page deposition. The three factual assertions Osea relied on are: 1) Plaintiff Charles Franklin was an employee of Osca’s independent contractor, Plant; 2) Osea did not in any manner retain supervision or endeavor to perform supervisory control, directly or indirectly, over the operation of Plant, its subcontractor, and Plant’s operation was totally independent of Osea; and 3) No meritorious independent acts of negligence are chargeable to Osea. Osca’s motion did not contain an affidavit.

In response to Osca’s motion, the Franklin plaintiffs asserted that questions of fact existed which should be submitted to a jury, and the plaintiffs filed thirteen depositions allegedly supporting their assertion. Under Rule 56(e), when the party moving for summary judgment has made a prima facie showing of entitlement to summary judgment, the opposing party’s response must set forth “specific facts” showing a genuine issue for trial. Osea contends that appellants’ attachment of thirteen depositions did not comply with the “specific facts” requirement of 56(e). However, under 56(c), a court may not grant summary judgment unless “the pleadings, depositions, answers to interrogatories and admissions on file. . .’’reveal that there is no genuine issue for trial. As subsection (c) requires the court to consider virtually the entire documentary record in determining whether summary judgment is appropriate, see D. Newbern Arkansas Civil Practice and Procedure § 26-7 at 256, we reject Osca’s argument regarding the technical sufficiency of appellants’ response to Osca’s motion for summary judgment.

The various appellants rely on three theories of liability in urging us to reverse the summary judgment in favor of Osea. First, they argue that Osea failed to warn Plant’s employees of the hazardous nature of calcium chloride. Second, they argue that Osea took steps to provide for the safety of Plant’s employees, and then performed negligently in its rescue efforts after Franklin passed out in the tank. Third, they argue that Osea is subject to liability because Osea retained control of the ENSCO premises after the Plant employees reported for work. Osea relies primarily on its status as a prime contractor and its lack of supervision over the manner in which Plant performed in urging us to uphold the summary judgment.

In Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969), this court explained the duties of a general contractor to a subcontractor’s employees. The court analogized the duties of a general contractor to those of an owner of the premises. These duties include the duty to exercise ordinary care, and the duty to warn of unusually hazardous conditions that might affect the welfare of the subcontractor’s employees. A general contractor may also be held liable for injuries to employees of the subcontractor if the general contractor began to perform certain duties or activities and then negligently failed to perform or performed in a negligent manner. Id. In McMichael v. United States, 751 F.2d 303 (8th Cir. 1985), the Eight Circuit cited the Gordon case and expounded on its analogy to owner liability. The Eighth Circuit likened a general contractor’s liability to the “business invitee” concept — when a general contractor invites a subcontractor onto a job site, the general contractor has a duty to exercise ordinary care for the welfare of the subcontractor’s employees. Id.

Osca’s on-site manager, Dee Cuttell, testified in his deposition that Osea was in the business of disposing hazardous and non-hazardous waste. He testified that he told Plant’s manager and owner that calcium chloride was a non-hazardous mixture. Dr. Simmons, a witness retained by Franklin, testified that it’s been known for several decades that calcium chloride can produce several types of significant skin injuries, and that people in the chemical industry should know that calcium chloride can be dangerous.

The depositions of Cuttell, Tim Babineaux, a shift leader for Osea, and Johnny Berry, Plant’s owner and manager, provide testimony regarding the events on the day Franklin sustained his injuries. Berry testified that Cuttell hired Plant to remove calcium chloride from ENSCO’s tanks. Plant reported for work on August 18, 1987, and Cuttell told Plant where to set up, and showed Plant where to get the “slicker suits” provided by ENSCO. Cuttell also told Plant that Osea had experienced a lot of problems with heat and humidity, and that ice water and Gatorade were available for Plant’s workers. Cuttell testified that the temperature was probably 90 to 100 degrees that day. Babineaux, Osca’s shift leader, testified that Osea was “taking precautions” regarding the people working in the tanks that day. When Franklin passed out from heat exhaustion, Cuttell and others failed in their attempt to get Franklin out of the tank with a ladder. Osea finally removed Franklin by using an ENSCO crane with a cherry picker or work basket attached to it. Babineaux testified that fifteen to thirty minutes elapsed before the device arrived, and that Osea did not keep the device on site. Berry testified that once Franklin was out of the tank, he and Cuttell removed Franklin’s slicker suit and waders. Dr. Simmons testified that Osca’s safety measures were appropriate except that it did not provide a way to get people out of the tank as rapidly as possible in cases of heat exhaustion. Dr. Simmons further testified that Franklin’s burns could have been prevented if all of Franklin’s clothing had been removed, and his skin had been washed with water.

Summary judgment is an extreme remedy which should be allowed only when there is no issue of fact to be litigated. Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). The burden is on the movant to demonstrate the absence of a genuine issue of fact, and the court must view the testimony in the light most favorable to the party against whom judgment is sought. Id. When reasonable minds might differ as to conclusions to be drawn from the facts disclosed, summary judgment is inappropriate. Id:, Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983). On appeal, this court determines the appropriateness of a grant of summary judgment based on whether the evidentiary items presented in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., Inc., 307 Ark. 154, 818 S.W.2d 251 (1991). In this case, the trial court granted summary judgment notwithstanding the court’s statement that “there are issues of genuine fact as they relate to the cherry picker availability and the removal of protective clothing.” Given our recognition of various instances in which a prime contractor may be liable for injuries to a subcontractor’s employees, we find the appellants’ proof shows the existence of material questions of fact which, if resolved in appellants’ favor, could result in a finding of liability on the part of Ósea. Accordingly, we reverse the grant of summary judgment and remand for trial.


author: Donald L. Corbin, Justice. Robert H. Dudley, Justice, Steele Hays, Justice,

text:
    Bruce Earl WARD v. STATE of Arkansas
    CR 91-36
    827 S.W.2d 110
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      William R. Simpson, Jr., Public Defender, by: Didi Sailings, Asst. Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Bruce Earl Ward was convicted by a Pulaski County jury of the capital murder of Rebecca Doss. The jury imposed the sentence of death by lethal injection. On appeal, appellant raises six allegations of error, most of which are confined to the propriety of the death sentence. While we find no reversible error in appellant’s conviction, we agree with appellant that prejudicial error occurred in the trial’s sentencing phase. Consequently, we affirm appellant’s conviction yet reverse the death sentence and remand for resentencing

Appellant’s initial argument raises two challenges to the constitutionality of the capital murder statute, Ark. Code Ann. § 5-10-101 (Supp. 1991). As we have previously addressed appellant’s constitutional arguments, our discussion will be brief. First, appellant argues that the homicide statutes’ 1989 revisions, which upgraded “premeditated and deliberated” murder from first-degree murder to capital murder, violate the constitutional prohibition against sentencing guidelines that fail to sufficiently narrow jury discretion in death penalty cases.

Under Ark. Code Ann. § 5-4-604 (Supp. 1991), the death penalty may not be imposed unless the state can prove the existence of an “aggravating circumstance.” In O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), we emphasized the following language from the Supreme Court’s decision in Lowenfield v. Phelps, 484 U.S. 231 (1988), where the Supreme Court explained that, in order to genuinely narrow the class of persons eligible for the death penalty, a state may choose between two capital sentencing schemes:

The legislature may itself narrow the definition of capital offenses,... so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.

O’Rourke, supra, at 64, 56 (quoting Lowenfield, supra, at 246).

Under Arkansas’ revised capital sentencing scheme, the constitutionally-required narrowing function is provided by the “aggravating circumstance” requirement at the penalty phase. Since appellant would not have been eligible for the death penalty in the absence of any aggravating circumstance, we find that the sentencing scheme passes constitutional muster.

Appellant’s second constitutional challenge is that the elements of “premeditated and deliberated” capital murder, section 5-10-101 (a)(4), and the elements of “purposeful” first-degree murder, Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991), impermissibly overlap. We have previously rejected this argument based on the same rationale we have used to uphold capital felony murder and first degree felony murder. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991). As long as there is no impermissible uncertainty in the definitions of these offenses, the mere existence of any overlapping does not render a statute constitutionally infirm. Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

Appellant’s second argument is that the trial court erred in restricting defense counsel’s questioning of prospective jurors regarding the jurors’ opinions of the death penalty. We have stated that the purpose of voir dire examination is 1) to gain knowledge for the intelligent exercise of peremptory challenges. Bryant v. State, 304 Ark. 514, 803 S.W.2d 546 (1991); Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983); Ark. R. Crim. P. 32.2, According to appellant, the restrictions imposed by the trial judge thwarted appellant’s intelligent exercise of his peremptory challenges.

The abstract indicates that defense counsel asked prospective jurors several questions relating to whether they considered “life without parole” a serious penalty. Defense counsel then asked whether the juror believed in the death penalty. The court informed defense counsel that she could ask the jurors whether they were “in favor of or against” the death penalty. However, the court instructed defense counsel not to “go through all this other malarky” before eliciting the jurors’ opinions of the death penalty.

The extent and scope of voir dire lies within the trial court’s sound discretion, and we will not reverse absent a clear abuse of discretion. Bryant, supra. In this case, the trial court stated that the manner and phrasing of defense counsel’s questions amounted to “intimidation.” We cannot say that the limited restriction imposed by the trial judge constituted an abuse of his sound discretion. See also Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).

Appellant’s third allegation of error is that the trial court erred in refusing to suppress incriminating statements and drawings that the police obtained from appellant prior to and subsequent to appellant’s arrest. Appellant’s suppression argument is divided into two specific sub-arguments: first, he argues that the statements made prior to his arrest should have been suppressed because he made the statments before being informed of his Miranda rights; second, he argues that the evidence obtained after his arrest should have been suppressed because he did not knowingly, voluntarily, and intelligently waive his Miranda rights. In reviewing a trial judge’s decision on a motion to suppress, this court makes an independent determination based upon the totality of the circumstances, and we reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991).

Several police officers testified about the circumstances surrounding the discovery of the victim’s body and appellant’s apprehension. Office Mike Middleton testified that he was on his routine patrol during the early morning of August 11,1989, when^ he noticed the absence of a clerk in the Jackpot store on Rodney Parham near Markham. After entering the store, calling for the clerk, and identifying himself as a police officer, Middleton radioed for backup help and exited the store. Middleton then observed appellant approaching from the store’s restroom area towards a motorcycle. Middleton requested appellant to “hold on a minute,” and informed appellant that the clerk was missing after appellant asked what was wrong. At that point, appellant told Middleton that he had been drinking hot chocolate in the store, that the clerk had given him a key to the restroom, and that the clerk was in the back.

Meanwhile, Office Stubenrauch, a backup officer had arrived, and Middleton asked Stubenrauch to detain appellant while Middleton reentered the store. Appellant repeated to Stubenrauch the earlier account he had told to Middleton, and also told Stubenrauch that the clerk has instructed him to use the women’s restroom. Officer Timmons, another backup officer, arrived shortly thereafter, and proceeded to check the store’s restrooms. He found the body of the store’s clerk, Rebecca Doss, in the floor of the women’s restroom. At that point, appellant was arrested, handcuffed and searched, and advised of his Miranda rights. On the way to the police station, appellant stated that he had not hurt anybody, and again repeated his account of his encounter with the victim.

Appellant next spoke with police officers at approximately 5 a.m. the same morning, when Officers Stafford and Smith approached him in an interview room at the police station. The officers testified that appellant was again advised of his Miranda rights, that appellant understood his rights, and that appellant agreed to talk to the officers on the condition that his statement not be taped. Appellant refused to sign the waiver of rights form, yet told the officers that while he was at the Jackpot store, he had gotten the clerk to help him with the restroom key but had no knowledge of what had subsequently happened to the clerk. Appellant also indicated, on a drawing of the bathrooms, the location of the fixtures in the restroom he had used at the Jackpot Store.

Under Ark. R. Crim. P. 2.2, a police officer may request a person to furnish information by answering questions regarding the investigation of a crime. In situations where an officer has a “reasonable suspicion” that a suspect is involved in a crime, Ark. R. Crim. P. 3.1 provides that the officer may stop and detain the suspect for fifteen minutes or for such time as is “reasonable under the circumstances.” While appellant argues that the statements made prior to his arrest should be suppressed because he was not advised of his Miranda rights, the Miranda warning is not required unless the statements were a result of custodial interrogation. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). See also Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). The Miranda warning is not required for voluntary, spontaneous statements. Shelton, supra; Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). In this case, the statements appellant made at the scene were clearly voluntary and spontaneous. As the record indicates that appellant’s on-the-scene statements were not elicited by police questioning, the Miranda warning was not required.

Appellant also argues that the statements and drawings he made while in custody should be suppressed because they were a product of police coercion. Appellant testified that he requested an attorney numerous times, and that the questioning officers attempted to coerce a confession by cajoling him and threatening him with a “taser” or stun gun. Appellant’s suppression argument also relies on the fact that appellant did not sign a waiver form before making his custodial statements and drawings.

We have held that the failure to obtain an explicit waiver of rights form will not necessarily preclude a voluntary confession. Cope v. State, 293 Ark. 524, 739 S.W.2d 533 (1987). Rather, a confession may be upheld on the basis of an implied waiver. Id.; Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In this case, the trial judge heard considerable police testimony regarding the circumstances of appellant’s custodial statements and drawings. While appellant’s version of the circumstances differs considerably from that of the officers’, we have held that any conflict in witnesses’ testimony is for the trial court to resolve. State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990); Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). Given the significant amount of evidence presented to the trial judge regarding the essential elements of a valid waiver, we find no clear error in the trial court’s refusal to suppress.

Appellant’s last three arguments for reversal allege errors in the sentencing phase of the trial. His fourth allegation of error is that the trial court erred in allowing the state to introduce photographs and police testimony concerning appellant’s prior conviction of voluntary manslaughter in Pennsylvania. Under Ark. Code Ann. § 5-4-604(3) (Supp. 1991), proof that a defendant previously committed another felony involving violence establishes an aggravating circumstance, rendering the defendant eligible for the death penalty. In this case, appellant does not dispute that his prior manslaughter conviction constituted an aggravating circumstance. However, he argues that undue prejudice resulted from the admission of photographs and testimony concerning this prior conviction because the state could conclusively prove an aggravating circumstance with the prior conviction alone. We disagree.

In Johnson v. Mississippi, 486 U.S. 578 (1988), the Supreme Court held that a finding of aggravating circumstances based on a prior felony conviction could not stand if the prior felony conviction was later overturned. The Supreme Court noted that the prosecutor in Johnson had relied solely on the document of conviction, and had not introduced any evidence relating to the prior felony itself. Id. at 585. We recently relied on the Johnson holding in Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), to remand a death sentence for resentencing. In the Sanders case, the state relied solely on the defendant’s prior conviction to establish the aggravating circumstance of a previous felony.

In this case, if the state did not introduce evidence regarding the circumstances of appellant’s prior manslaughter conviction, the validity of the jury’s aggravating circumstances finding would remain contingent upon Pennsylvania not reversing appellant’s prior conviction. In light of the Johnson holding, the probative value of the extraneous evidence increases significantly. However, we must still determine under Ark. R. Evid. 403 whether the probative value of the photographs and testimony is substantially outweighed by the danger of unfair prejudice.

We have held that the question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988); Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). On appeal, this court will not disturb the trial court’s decision in the absence of manifest abuse of that discretion. Bennett, supra. We have repeatedly applied our deferential standard of review to the admission of photographic evidence, Qualls v. State, 306 Ark. 283, 812 S.W.2d 681 (1991); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), and stated that photographs will not be excluded simply because they are gruesome. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979).

In this case, the photographs depicted the body of a young woman, naked from below the torso, lying in a wooded area with the contents of her purse strewn out beside her. These photos are not particularly gruesome and are black and white. A Pennsylvania police officer testified to finding the body and to the condition of the body. He testified that the woman had marks on her neck and that the scraped condition of her knuckles indicated that she had been dragged. He further testified to discovering a photograph of appellant and appellant’s phone number when he examined the contents of the victim’s purse.

In this case, the photographs and testimony were relevant in establishing the aggravating circumstances of a previously committed felony, and in illuminating the facts for the jury’s consideration. We discern no abuse of discretion.

Appellant’s fifth allegation of error is that the trial court erred in admitting a collection of Pennsylvania documents relating to appellant’s prior manslaughter conviction. State’s Exhibit No. 18 contained a felony information charging appellant with murder, and an affidavit alleging that appellant raped and robbed the Pennsylvania victim. We agree with appellant that the admission of these unsubstantiated allegations was prejudicial error in the penalty phase of the trial.

The state offered no proof that appellant had previously committed the offenses of murder, rape and robbery. While we stated earlier that the state is not limited to admission of a prior conviction in proving that a defendant previously committed a prior felony, mere allegations do not constitute proof. Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). In this case, the prejudicial effect of the rape and robbery allegations was compounded by the photographs depicting an unclothed victim and the testimony regarding the strewn contents of the victim’s purse.

During oral argument before this court, the state conceded error but contended that the erroneous admission of the allegations was harmless. Under Ark. Code Ann. § 5-4-603 (Supp. 1991), a majority of this court may use harmless error to affirm a defendant’s death sentence only if we can ultimately conclude that the error would not have changed the jury’s decision to impose the death penalty. In Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), we refused to find harmless error in the defendant’s death sentence because we could not conclude that, absent the error, the jury would have still imposed the death penalty. In the case, as in Sanders, our finding of error does not affect appellant’s eligibility for the death sentence. However, we cannot conclude that the jury would have found that the aggravating circumstance of appellant’s previous felony justified a sentence of death if the jury had not been exposed to the unsupported allegations. Consequently, we reverse on this point and remand for resentencing. Id., Wilson v. State, 295 Ark. 692-A, 752 S.W.2d 762 (1988).

We find no merit to appellant’s final allegation of error. Appellant argues that the jury erred in finding no mitigating circumstances because appellant proved, as a matter of Pennsylvania law, that the definition of voluntary manslaughter includes the phrase “acting from serious provocation by the person killed.”

Ark. Code Ann. § 5-4-605 (1987) provides a nonexclusive list of mitigating circumstances that the jury may consider. The list set out in section 5-4-605 consists of circumstances relating to the capital offense for which the defendant is being sentenced. While this list is not exclusive, and a defendant may submit other circumstances for the jury’s consideration, we reject appellant’s argument that the jury is compelled to find a mitigating circumstance based simply on the definition of the prior offense that established the aggravating circumstance. As appellant offers no authority to support his novel contention, we find no error in the jury’s finding of no mitigating circumstances.

The record has been examined pursuant to Ark. Sup. Ct. R. 11(f) and find no additional prejudicial error. For the reasons stated above, we affirm appellant’s conviction but reverse the death sentence and remand for resentencing.

Holt, C.J., Dudley and Newbern, JJ., dissent in part; concur in part.

Hays, J., concurs in part; dissents in part.

Robert H. Dudley, Justice,

concurring in part; dissenting in part. The appellant was convicted of capital murder. The majority opinion holds that the trial court erred in allowing the State to prove that the appellant had been previously charged with murder, rape, and robbery, even though he was not convicted of those charges. I wholeheartedly agree with the majority in that holding. That error occurred in the sentencing phase of the bifurcated trial, and therefore, the majority reverses only the sentencing phase of the case. As a result, the case will go back to the trial court only to decide whether the appellant is again sentenced to die by lethal injection, or is to be sentenced to life in prison without parole. I would agree with the majority that reversing for resentencing only was correct if I truly thought the appellant had received a fair trial in the guilt phase of the bifurcated trial. However, my review of this case under Rule 11(f) of the Rules of the Supreme Court and Court of Appeals leads me to the conclusion that the appellant did not receive a fair trial in the guilt phase. As a result, I would reverse and remand the whole case for retrial.

We have long held that a trial judge should manifest the most impartial fairness in the conduct of a trial, especially in a capital case. A trial judge is held in high esteem by the jurors, and any indication by a judge that he favors one side or the other might influence the minds of the jurors. In this case the trial judge allowed the prosecuting attorney and his deputies to approach the bench, but would not allow the defense attorneys to do the same. The trial judge seemed to delight in denying the defense the opportunity to approach the bench. The record reflects the following. At the suppression hearing all of the police officers testified that the appellant said he would not sign a waiver of rights form nor would he agree to a taped interview nor would he make a written statement. While the appellant was under arrest and in custody, he stated that he was at the service station, the victim allowed him to use the ladies’ restroom, and he never saw her again. One of the policemen drew a diagram of both the men’s and women’s restrooms at the service station and asked the appellant to circle the one the victim unlocked for him. The bathroom that he marked, and said he was allowed into, was the one in which she was found murdered. The defense attorneys moved to suppress the diagram, and the trial court held a suppression hearing. The trial court denied the motion to suppress. Then, at the trial on the merits, during the testimony of detective Mark Stafford, the subject again came up, and defense counsel attempted to renew the motion to preserve his record. It came about as follows.

MS. LaRUE [Deputy Prosecutor]:
Q: Detective, I’m showing you what’s now been marked State’s Exhibit 14 and I’d ask you if you could identify this.
A: Okay. This is a diagram that I had drawn. I put the squares in reflecting where the store is. Also drew two squares showing the men’s restroom —
Q: Detective, I want you to hold that up and I want you to point to it in reference to it so the jury can know what you intended this to be.
A: This is the front door.
MR. DEVINE [Defense Attorney]:
Your Honor, I think she ought to move to have it introduced if she’s going to use it as a piece of evidence.
THE COURT:
I agree with that. Have you got any objections to it? MR. DEVINE:
Yes, Your Honor, I think objections have been noted on the record earlier on this and I would have the same objections at this time.
THE COURT:
Refresh the court’s memory specifically. I don’t remember what they were. Just tell me what they were.
MR. DEVINE:
Pardon me?
THE COURT:
Refresh the court’s memory. I don’t remember what the objections were. State them specifically. Just stay there. Just stay there.
MR. DEVINE:
Your Honor —
THE COURT:
Tom, step back. Step back and state them.
MR. DEVINE:
I can’t approach the Bench?
THE COURT:
No. Step back and state your objections.
MR. DEVINE:
Your Honor, I think that under the Rules of Evidence I have a right to approach the Bench in order to make an objection.
THE COURT:
Mr. Devine, do you want to make your objection? MR. DEVINE:
Yes, your Honor.
THE COURT:
State your objection. You may do so.
MR. DEVINE:
The same objection that we had before.
THE COURT:
Refresh the court’s memory.
MR. DEVINE:
Your Honor, if I can approach the Bench I will. THE COURT:
You may not. If it’s a legal objection, you can make it from there.
MR. DEVINE:
It is a legal objection. I think under the Rules — THE COURT:
Overruled. Go ahead.
MR. DEVINE:
of evidence I have a right to approach the Bench also. THE COURT:
Overruled. Go ahead.
MR. DEVINE:
Note our exceptions for the record, your Honor —
THE COURT:
Note the insistence that the Defendant will not make the objection without a side bar of the Court.
MR. DEVINE:
Your Honor, I believe under Rule 103 of the Rules of Evidence —
THE COURT:
I’m aware of the rules.
MR. DEVINE:
— we have a right to approach.
THE COURT:
I have the same books you have, Mr. Devine. I’m aware of all of the rules.
MR. DEVINE:
Yes, your Honor, I know you are.
THE COURT:
Go ahead.

Record at 966-68.

Any fair-minded person would agree that the trial court placed the defense attorney in the position of making a Hobson’s choice. He could either run the risk of waiving the issue or state his objection aloud. Although the jurors might not have understood that the defense attorney was trying to protect his record on suppression of the incriminating evidence, it was certainly clear to every juror that the defense attorney could not approach the bench. Yet, that same morning the trial judge allowed the prosecuting attorney to approach the bench. The trial judge later attempted to explain to the attorneys the reason for the difference in their treatment, as follows:

THE COURT:
Incidentally, for you and Mr. Devine, I don’t let counsel approach the Bench. There’s one time when you can approach the Bench and make a motion. That’s at the end of the State’s case and the end of the Defense’s case for a directed verdict. The rest of the time make it out there. If you’ve got a legal argument, make it. If you haven’t — If it’s good, I’ll grant it. If it’s not, I won’t.
But, now, the exception yesterday was that the prosecutor — And I allow the prosecutor to come to the Bench sometimes and make motions and objections because they can create mistrial. You all can’t. Yesterday they wanted some security out there with Mr. Doss. And I think it was appropriate. I don’t think it was necessary to approach the Bench. I think if you all had talked you could have agreed and told the court.

Record at 1150.

Regardless of the trial court’s reasons, it was manifest to the jurors that the defense attorneys were not treated the same as the prosecuting attorneys. This is a subject we have often addressed. In Fuller v. State, 217 Ark. 679, 232 S.W.2d 988 (1950), we wrote:

“. . .a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.” Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 428, 100 S.W.2d 676, 677. Also, see McAlister v. State, 206 Ark. 998, 178 S.W.2d 67.
The requirement of Art. 7, § 23, of our Constitution, that “judges shall not charge juries with regard to matters of fact”, applies as well to the credibility of witnesses and the weight to be given their testimony as to the outright truth or falsity of what they say. St. L.S.W. Ry. Co. v. Britton, 107 Ark. 158, 154 S.W. 215. And it applies not only to what judges tell juries in the course of formal instructions but also to what they say in colloquys with lawyers in the jury’s hearing.

Id. at 682-83, 232 S.W.2d at 990.

The action by the trial judge in this case might well have prejudiced the jurors against defense counsel, especially in view of a later comment by the trial judge during closing argument.

An error in the merits of the trial occurred as follows. State’s witness Dale Danzeisen testified that between 2:20 and 2:26 a.m. he was in the service station where the murder occurred. The police found the victim’s body at about 2:40 a.m., and because there were no eyewitnesses, witness Danzeisen’s testimony was of extreme importance. On direct examination, witness Danziesen testified that the appellant was in the service station during the time he was there. On cross-examination he stated, “I did not stay around after the defendant came out of the door in a rage.” Record at 1000. The fact that the defendant was at the service station and in a fit of rage could well have been a critical fact in the jurors’ minds. This was a case with only circumstantial evidence. Immediately after testifying that the defendant had been in a fit of rage, the witness admitted that shortly after the murder he gave the police a written statement. In cross-examining the witness about this prior written statement, which did not mention the fit of rage, the following occurred.

MR. DEVINE [Defense Attorney]:
Okay. Where does it say he flew out the door in a rage on there?
MS. LaRUE [Deputy Prosecutor]:
Your Honor, I’m going to object. This is an improper question. First of all, he’s asking Mr. Danzeisen to refer to a police report that’s been written up by an officer. . . and then typed up.
MR. DEVINE:
Your Honor, he’s identified it as his statement he gave to the police.
THE COURT:
I think he has. The form of the question may be a little bit troublesome. . . . But go ahead.
MR. DEVINE:
It doesn’t say that on there, does it? In fact, what it says is, “He was talking to the clerk who I knew as Becky. When I opened the door, he turned around” —
MS. LaRUE:
Your Honor, I’m going to object.
THE COURT:
Sustained.

Record at 1005-06.

The ruling was in error. The appellant should have been allowed to impeach the credibility of the State’s witness by showing that he had made a prior inconsistent statement. A.R.E. Rule 613; McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987). This witness was one of the State’s most important witnesses, if not the most important, and his testimony about the appellant’s appearance at the scene just before the murder was critical.

Witness Danziesen also testified that about two weeks before the murder he had heard the appellant say to the victim: “I’d like to take you to the back room and fuck you up the ass.” This testimony obviously lead the jurors to think that appellant was a vulgar person. A subsequent State’s witness, Melissa Gabbard, knew the appellant and, on cross-examination, was asked if the appellant would use the kind of language that witness Danziesen had said he used. She said he would “not say things like that.” The following then occurred:

MR. DEVINE [Defense Attorney]:
Did you ever hear him say anything like that?
MR. FRAISER [Deputy Prosecutor]:
Your Honor, I’m going to —
THE WITNESS:
No.
MR. FRAISER:
— object to this. I believe what they’re doing is it goes to character.
THE COURT:
Sustained.

Record at 1083.

There was no motion to strike the “no” answer. There was a later objection by the State to another question on the basis that “it goes to character.” The court sustained the objection. Whether the court was correct, see A.R.E. Rule 406 with regard to custom and habit, is not of consequence in view of the way the trial court later prejudiced the defense attorneys’ credibility on the issue. That occurred during closing argument as follows:

MR. DEVINE [Defense Attorney]:
Mr. Danzeisen may have been by there that day. I think Mr. Danzeisen could have even done this. And it’s really easy at that time to try to push it off on somebody else, especially if somebody else had been arrested that you can try to help put another load of dirt on that grave that we’re burying Bruce Ward in. Because that’s what we have. And it’s very easy for Mr. Danziesen to say those things. But Melissa Gabbard gets up here and she says that Bruce Ward doesn’t talk like that.
MR. PIAZZA [Prosecuting Attorney]:
Objection, your Honor. That was an objection and it was sustained by the Court.
THE COURT:
Ladies and gentlemen, disregard that. It’s not in evidence. You’ll remember the instruction at the time. This is argument of counsel. It’s not evidence.

Record at 1127-28.

In summary, my Rule 11 (f) review of the rulings by the trial court leads me to the conclusion that the whole case, not just the sentencing part, should be reversed for a fair retrial. Accordingly, I concur in part and dissent in part.

Holt, C.J., and Newbern, J. join in this opinion concurring in part and dissenting in part.

Steele Hays, Justice,

concurring in part, dissenting in part. The majority concludes that prejudicial error occurred in the penalty phase of the trial because State’s Exhibit 18 contained references to murder, rape and robbery, whereas appellant was convicted of voluntary manslaughter. As to the charge of murder, no error can be assigned to this point. Page five of the exhibit (the verdict) was admitted without objection. It reads in part: “We the jury find the defendant, Bruce Earl Ward, on the charge of:

Murder:_
Voluntary Manslaughter:_GUILTY
Involuntary Manslaughter:_

Thus the jury’s awareness of the charge of murder was not preserved for review for the lack of an objection. Moreover, Officer Dominic DiPaolo of the Erie Police Department testified, without objection, that Janet Needham was strangled with the strap of her own purse. In fact, it was undisputed that appellant was charged with murder but the jury convicted on voluntary manslaughter. Thus no claim of error can be grounded on the fact that the appellant was charged with murder.

As to the rape and robbery, those were never issues in this case. They were never argued to the jury at any point, indeed, were never mentioned. The only reference to either throughout this record is buried in the fine print within a five page photocopy which is for all practical purposes illegible. (See attached). There is nothing to indicate the jury was even aware of them and, as counsel for the appellant noted (referring to this segment of Exhibit 18), “It takes a legal scholar to decipher all that.” The state was not attempting to show that appellant was charged with rape or robbery. The state was attempting to show, as an aggravating circumstance, that appellant had committed a previous felony involving violence, and did so simply by offering a certified copy of his conviction papers from Pennsylvania where that conviction occurred.

When the exhibit was offered, the appellant readily agreed that pages four and five were admissible and made only a general objection to the relevancy of the remainder of the exhibit, although the trial court pointedly invited specific objection:

THE COURT: Any objections?
[Counsel for Defense] Your Honor, I’d like to look at them.
(Thereupon, there was a pause in the proceedings; then the following proceedings occurred:)
THE COURT: Any objections?
COUNSEL: Your Honor, I do have some.
THE COURT: On what grounds?
COUNSEL: Y our Honor, I think part of the State’s exhibits would be inadmissible as to relevancy. They’ve clearly got a conviction and I think that, of course, would come in.
THE COURT: Well, let’s take them one at a time and be specific.
The first one apparently is a certified copy of the judgment that you have admitted that he got convicted of. Right?
COUNSEL: It’s more than that, your Honor. It’s the other material that we would object to.
THE COURT: Let me see the judgment.
Specifically what is your objection to this?
COUNSEL: The first few pages, your Honor. I don’t see that they’re relevant. I mean clearly they have the judgment and commitment order and conviction of voluntary manslaughter. It takes a legal scholar to decipher all that. I think they’ve got it in the last two pages. And I have no problem with the last two pages.
THE COURT: Well, without going through this, is this the information, charging —
MRS. LaRUE: That’s the information that was
filed.
THE COURT: That’s already before the jury. You asked about it. You asked on redirect that he was disappointed that he didn’t get more.
I don’t know what the prejudice is. They know this. So, if your only objection is relevancy —
COUNSEL: Your Honor, I think it’s confusing to the issue.
THE COURT: Well, they probably couldn’t understand this. And, if your objection is relevancy, I’ll overrule it.
COUNSEL: That’s my objection, your Honor.
THE COURT: Okay. I’ll let it in for whatever weight they want to give it. His conviction for voluntary manslaughter is admitted. And that’s what this purports to prove by the rules of evidence. So, we’ll let that in. [My emphasis.]

Had counsel objected because the state had not offered evidence of rape or robbery and it would be prejudicial to the appellant for that part of the exhibit to be admitted, the alleged error might well have been averted. The incident illustrates why our cases recognize the need for specific objection so that trial errors will not occur by inadvertence. The case of Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990), is instructive. The court had granted a motion to suppress the statement of a co-defendant implicating the appellant in various crimes, and appellant argued on appeal that the trial court erred in then admitting the statement. We said that there was no showing that appellant had requested that specific or implied references to her be expunged before introduction of the statement. “It cannot be said the entire statement [of the co-defendant] was inadmissible; therefore, the appellant had the burden of pointing out any alleged inadmissible portions at or prior to the admission of the statement.”

As to the robbery, there is an additional reason why no error occurred. There was evidence of robbery properly before the jury from sources independent of Exhibit 18. Officer DiPaolo testified that Ms. Needham’s purse was opened and its contents were scattered near her body. Other contents, including the appellant’s photograph, had been thrown down a window well near where the body was discovered. State’s Exhibit 16 depicts a scene consistent with that testimony. That evidence would, I suggest, support a conviction of robbery, it will certainly support the lesser standard of evidence applicable to the penalty phase.

The state is not required to prove the appellant was convicted of robbery in order to submit the aggravating circumstance to the jury — only that he committed the felony. Arkansas Code Ann. § 5-4-604 (Supp. 1990). Moreover, we have held that any evidence, even slight, of an aggravating circumstance justified submitting that issue to the jury. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). The state was entitled to prove the circumstances of the previous crime relevant to the issue of violence for such probative force as the jury might have given it. The crime of rape, having no evidentiary support, was admittedly not germane, but it’s miniscule role in this trial could have been avoided by a proper objection and as it was neither argued nor even mentioned to the jury any error can be treated as harmless. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). We have often said the law cannot guarantee a perfect trial, only a fair one.


author: Robert L. Brown, Justice.

text:
    WAL-MART STORES, INC. v. Carolyn DOLPH
    91-121
    825 S.W.2d 810
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      Wright, Lindsey & Jennings, by: Edwin L. Lowther, Jr., for appellant.

      Gill, Johnson & Gill, for appellee.
   Robert L. Brown, Justice.

The appellant, Wal-Mart Stores, Inc., appeals a jury verdict and judgement for slander in favor of the appellee, Carolyn Dolph, in the amount of $25,000. The sole issue raised on appeal is whether there was lack of sufficient proof of publication of the slander. We hold that there was substantial evidence of publication to support the judgment, and we affirm it.

The events leading to the complaint occurred on June 16, 1989, at the Wal-Mart store in Dumas at about three o’clock on a Friday afternoon. Dolph had just gone through the check-out line and was attempting to leave the store when she was accosted near the exit by the loss-prevention officer for the store, Loretta McNeely. Dolph testified that McNeely told her that she knew that Dolph had been apprehended for shoplifting in McGehee the week before, and because of that she was not allowed to shop at any Wal-Mart store. McNeely made the accusation four times, according to Dolph. Dolph countered that McNeely was mistaken. McNeely did not believe her, but instead thought Dolph was going through a shoplifter’s typical denial. They were arguing the point, according to Dolph, where people could hear, and she felt like she was on display “right in front of the store.”

To resolve the matter, Dolph and McNeely moved to a nearby service area, and McNeely went into a mezzanine office to call the McGehee store. After telephoning McGehee, McNeely then “hollered down” questions to Dolph from the office, according to Dolph. During the time that McNeely was calling, Dolph believed that she was being watched by Wal-Mart employees and that she was not free to leave. McNeely then requested that Dolph come up to the office, but she refused and asked to see the manager. It turned out that McNeely was in error and that Dolph’s sister — not Dolph — had been apprehended in Mc-Gehee for shoplifting. Dolph sued Wal-Mart for slander and was awarded the $25,000 verdict.

On appeal, Wal-Mart does not assert an absence of negligence in the shoplifting accusation. Rather, it argues that any slander that might have occurred was not published to a third party. On a collateral point, Wal-Mart contends that the circuit court erred in permitting inadmissible hearsay to support Dolph’s publication argument.

We first consider whether substantial evidence exists to support the jury’s verdict. We recently summarized what is required to make a substantial-evidence determination:

Substantial evidence is defined as that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond suspicion or conjecture. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). This court has stated that we must affirm if there is substantial evidence to support the judgment below. Handy Dan Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985). Further, in testing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and that part of the evidence which is most favorable to the appellee. Love v. H. F. Construction Company, 261 Ark. 831, 552 S.W.2d 15 (1977).

Derrick v. New Mexico Chiquito, 307 Ark. 217, 220, 819 S.W.2d 4 (1991). We have further held that circumstantial evidence may meet the substantial evidence test. Hamlin Flying Service v. Breckenridge, 275 Ark. 188, 628 S.W.2d 312 (1982).

An essential element in any slander suit is an unprivileged publication of the slander to a third party. Restatement, Second, Torts § 558 (1977). In. this case, there was no direct testimony from a third party who heard the slanderous statement by McNeely. The question, then, is whether sufficient circumstances existed to give rise to a reasonable inference that McNeely’s accusation was overheard.

There is no Arkansas case directly on point, and we turn to other jurisdictions for guidance on this issue. In Rhode Island, the Supreme Court looked to the surrounding circumstances and the reasonable inferences that could be drawn from those facts. Gaudette v. Carter, 214 A.2d 197 (R.I. 1965). There, the issue was whether the defendant had been overheard by a third party at a public auction after a loud and heated exchange occurred between the parties, and the defendant called the plaintiff a thief. Those close by denied hearing the slander. The trial court directed a verdict for the defendant, but the Supreme Court reversed with these words: “Our holding is that an issue for jury determination arises if on the evidence, testimonial or otherwise, it may reasonably be inferred that the defamatory words were comprehensible to and uttered in the presence and hearing of a third person, and this even in the face of a denial by that person that he heard the words.” 214 A.2d at 200.

In a South Carolina case, a customer of the bank was falsely accused of “swindling” the bank by an assistant vice-president. Duckworth v. First National Bank, 176 S.E.2d 297 (S.C. 1970). The plaintiff testified that he knew that other customers heard the slander because “they were looking, they couldn’t help it.” 176 S.E.2d at 300. He added that there were customers of the bank around at all times and near enough to hear what was said. The court held that the issue of publication was properly submitted to the jury.

Lastly, in a Florida case, the district court of appeal held that there was sufficient evidence of publication when the circumstances showed that the words were uttered in a loud voice in the presence of others and under conditions and circumstances in which a loud voice would likely be heard. Lombardie v. Flaming Fountain, Inc., 327 So. 2d 39 (Fla. App. 1976).

In the case before us, there was testimony of the shoplifting accusations made by McNeely within a few feet of the check-out counter and the exit where there was heavy customer traffic. There was further testimony by Dolph that she was sure people were listening to the argument between McNeely and her. She was on display in front of the whole store, Dolph stated, and was very embarrassed. Two Wal-Mart employees were specifically staring at her, Dolph testified, while McNeely was contacting the McGehee store and, then, hollering down at her for identification, and requesting that she come up to the office. We can make no clear distinction between this case and the foreign authorities cited above. The circumstances here were both sufficient to raise a reasonable inference of publication and also constitute substantial evidence to support the jury’s verdict.

Wal-Mart also raises a collateral hearsay issue relating to publication. At trial, Dolph testified that her sister’s mother-in-law had been told by one of the Wal-Mart employees that Dolph had been caught shoplifting. The circuit court permitted the testimony into evidence but gave the following cautionary instruction:

However, I need to instruct you that in this particular case, the testimony of Ms. Dolph as to what someone else told her — and you heard the linkage of where it came from — is not being offered for the truth of what Ms. Dolph said was told to Ms. Dolph, but merely for the purpose of showing that she did, in fact, receive some information, whether true or not. And my instruction to you is, you are not to consider it as being given or stated here for the truth of what Ms. Dolph said, but merely to show that she heard something.

Wal-Mart argues that the circuit court erred in permitting what amounted to triple hearsay into evidence. We do not agree.

The Eighth Circuit Court of Appeals resolved a similar question in a libel case and held that the testimony in question was not hearsay. See Luster v. Retail Credit Company, 575 F.2d 609 (8th Cir. 1978). In Luster, the plaintiff sued Retail Credit for a false statement made in a credit report which suggested arson on the plaintiff’s premises. To prove publication, plaintiff used the testimony of a third-party insurance agent who heard from a deceased agent that a Dallas insurance firm believed Retail Credit’s report implied arson. A hearsay objection was made and rejected by the trial court which gave a limiting instruction at the time of the disputed testimony. The Eighth Circuit affirmed the trial court’s ruling on the basis that the testimony was admitted solely to prove the fact that the words were said — not to prove that they were true.

The Eighth Circuit’s reasoning in Luster is persuasive in this case which involves a comparable publication issue. Here, the testimony of the sister’s mother-in-law about what the WalMart employee said was not offered to prove the truth of what was said. It was offered to prove the fact that it was said, which then became some evidence of publication. The distinction is an important one, and we hold that the circuit court’s ruling with the corollary instruction to the jury was appropriate in this case.

Affirmed.

Dudley, J., not participating.