author: W.H. ”Dub” Arnold, Chief Justice.

text:
    Oscar STILLEY v. Margaret JAMES, Rick Grinnan, Linda Varnado, and Alban Varnado v. John Speed
    00-1463
    48 S.W.3d 521
    Supreme Court of Arkansas
    Opinion delivered June 28, 2001

      Appellant, pro se.

      Cross, Gunter, Witherspoon & Galchus, P.C., by: Abraham W. Bogoslavsky, for appellees Margaret James, Rick Grinnan, Linda Varnado, and Alban Varnado.

      Mike Spades, Jr., for appellee John Speed.
   W.H. ”Dub” Arnold, Chief Justice.

Appellant Oscar Stilley appeals the Sebastian County Circuit Court’s order granting appellees Margaret James, Rick Grinnan, Linda Varnado, and Alban Varnado’s motion for summary judgment. For reversal, appellant argues that it was error for the trial court to grant appellees’ motion for summary judgment. As this matter involves an issue involving an attorney in the practice of law, this Court’s jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (a) (5). We affirm the trial court.

Appellees filed the present action under the Arkansas Declaratory Judgment Act, codified at Ark. Code Ann. § 16-111-101 (Repl. 1987), in an effort to coEect a $200,000 judgment from appeEant. AppeEees asked the trial court to determine the rights and responsibEities of various parties under an indemnification agreement executed between appeEant Oscar StEley and crossappellee John Speed. The trial court granted the appellees’ motion for summary judgment and ruled that the appellees were entitled to judgment against Mr. Stilley in the amount of $200,000, which was the amount of their original judgment against Mr. Speed.

This was the third of three related cases. In the first case, Mr. Speed had retained Mr. Stilley as counsel to prosecute claims for nonpayment of vacation pay and other compensatory time after he was fired from the employment of the Western Arkansas Chapter of the American Red Cross in 1996. He also made a claim for defamation against the Red Cross and others. The suit was dismissed without prejudice as to certain individual plaintiffs. The remaining claims went to trial.

The Red Cross counterclaimed, alleging that certain items were purchased for John Speed personally on Red Cross credit cards. Mr. Stilley, asserting that the counterclaim was meritless, orally promised to pay any judgment taken against Mr. Speed. Mr. Speed lost his direct claims and lost on the counterclaim, as well. The jury awarded the Red Cross almost $4,000, which was paid by Mr. Stilley.

On July 21, 1997, the appellees filed a lawsuit alleging a claim of malicious prosecution against both Mr. Speed and Mr. Stilley. Although Mr. Stilley was a co-defendant in this matter, he represented himself, as well as Mr. Speed. The malicious prosecution claim was scheduled for trial on February 14, 2000.

Sometime in January of 2000, Mr. Speed apparently began to be concerned about the representation being provided to him by Mr. Stilley. Mr. Speed spoke with Mike Spades, Jr., an attorney friend. Mr. Spades informed Mr. Speed that he felt there was a conflict of interest with Mr. Stilley representing him in the malicious prosecution case in which they were co-defendants and that Mr. Speed should hire his own, separate lawyer. This possibility was obviously communicated to Mr. Stilley, along with the fact that a continuance would be necessary. As Mr. Stilley did not want either of those two things to happen, he agreed to sign an indemnity agreement if he could continue representing Mr. Speed. As a result, an indemnity agreement was forwarded to Mr. Stilley.

In the cover letter to that indemnity agreement, Mr. Spades stated that Mr. Speed was willing to continue with Mr. Stilley as his attorney, as long as the indemnification agreement was signed. Mr. Spades went on to specifically state that if the indemnity agreement was not returned immediately, he and Mr. Speed would have to revisit the issue of whether Mr. Speed should retain Mr. Spades as counsel.

On February 7, 2000, one week before trial, Mr. Stilley executed the indemnity agreement. Because he signed the indemnity agreement, Mr. Speed allowed Mr. Stilley to continue to represent both of them at trial. The indemnity agreement specifically referenced the malicious prosecution lawsuit and stated that Mr. Stilley received ten dollars, as well as “other good and valuable consideration.” Mr. Stilley went on to say that he agreed to “indemnify and hold harmless the defendant, John Speed, for any damages assessed, apportioned, or otherwise charged to the co-defendant, John Speed, whether such damages are assessed, apportioned, or charged individually, or jointly and severally against John Speed and the co-defendant Oscar Stilley.” The agreement even recognized the fact that such judgment should be paid in a speedy manner, as Mr. Stilley specifically stated that he would pay any such damages “in a timely manner within a reasonable period of time, to avoid collection action against John Speed so as to protect his credit rating and dignity.”

In the trial of this case, Mr. Stilley, over appellees’ objection, was allowed to take the witness stand and testify. At the end of the trial, the jury returned a verdict in favor of the appellees, and against Mr. Speed in the amount of $200,000. A directed-verdict was granted in Mr. Stilley’s favor. Mr. Speed made demand upon Mr. Stilley to honor the indemnity agreement and pay the judgment to appellees, but Mr. Stilley refused. During postjudgment discovery, the appellees learned of the existence of the indemnity agreement and also made demand upon Mr. Stilley for payment of the judgment. Once again, Mr. Stilley refused to honor the indemnity agreement. No surety bond was ever posted in this matter. Mr. Stilley continued to refuse to honor the agreement.

On May 9, 2000, appellees filed a declaratory judgment action, seeking to have the court determine that Mr. Stilley was indebted to them for payment of the judgment which they had obtained against Mr. Speed. In light of the language of the written contract, and the undisputed facts of a judgment, with no surety bond having been posted, appellees' moved for summary judgment on their claim. Mr. Stilley filed his own motion for summary judgment, stating that there was no consideration given for the indemnity agreement.

The trial court held a hearing on these motions. At the end of the hearing, the court determined that Mr. Speed’s decision to allow Mr. Stilley to represent both co-defendants, and thereby control the litigation stage of the lawsuit, constituted consideration. The court also was aware of no legal requirement that Mr. Speed had to personally pursue an appeal in order for Mr. Stilley to have to pay the judgment, especially since no such requirement was contained in the indemnity agreement. Finally, the court found that appellees were clearly third-party beneficiaries of this indemnity agreement, since they were the individuals to whom Mr. Stilley had promised to pay the judgment. Consequently, the court granted appellees’ motion for summary judgment and entered judgment in favor of the appellees and against Mr. Stilley for the amount of the judgment which the appellees had obtained against Mr. Speed in the malicious prosecution trial. It is from these rulings that Mr. Stilley now appeals.

On appeal, appellant asserts the following:

1) The trial court erred in ruling that the failure to fire appellant as counsel constituted consideration for a contract with appellant, where there was no promise not to fire counsel, and where counsel was in fact fired shortly after the trial, without legal repercussions;
2) The trial court erred in ruling that one who claims indemnification is not obligated to cooperate with an appeal as a condition of the right to claim for indemnification;
3) The trial court erred in ruling that one who is found by a jury to have committed an intentional tort is entitled to indemnification despite the fact that he was found to have lied to the purported indemnitor, and tacitly concedes that he did in fact lie to the purported indemnitor to obtain the purported indemnity contract;
4) The trial court erred in ruling that a third party is entitled to a direct action against a claimed indemnitor, where neither the claimed indemnitee nor the claimed indemnitor intended by their conduct to confer any benefit on the third party.

We affirm.

I. Standard of Review

This court recently summarized the appropriate standard or review to be employed when determining whether a trial court erred in granting a motion for summary judgment in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000):

We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, 327 Ark. 577, 940 S.W.2d 445. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. Boyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. George, 337 Ark. 206, 987 S.W.2d 710.

Id. at 20, 14 S.W.3d at 475.

II. Consideration

The argument raised below by Mr. Stilley, in an effort to avoid liability under the indemnity agreement with Mr. Speed, his client, was that there was no consideration given for this agreement. He contends, therefore, that the trial court erred in ruling that Mr. Speed’s decision not to fire him as counsel constituted consideration for a contract with Mr. Stilley. Mr. Stilley asserts this claim despite the fact that he executed a written document with his client which plainly stated that he received “other good and valuable consideration.” For Mr. Stilley’s present contention that no consideration was given to be accurate, he would have to admit that that statement in the indemnity agreement, which he averred by signing, was false. In this case, Mr. Stilley is attempting to introduce parol evidence to demonstrate a complete lack of consideration. Arkansas case law is clear that parol evidence may not be introduced to demonstrate a complete lack of consideration. See Martin v. Rochelle, 249 Ark. 509, 460 S.W.2d 70 (1970); United Loan & Investment Co. v. Nunez, 225 Ark. 362, 282 S.W.2d 595 (1955); Toney v. Raines, 224 Ark. 692, 275 S.W.2d 771 (1955). This, in fact, is the exact fact situation under which the parol-evidence rule was formulated, which was the basis for the trial court’s decision.

The parol-evidence rule prohibits the introduction of extrinsic evidence, parol or otherwise, which is offered to vary the terms of a written agreement; it is a substantive rule of the law, rather than a rule of evidence, and its premise is that the written agreement itself is the best evidence of the intention of the parties. First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 168, 832 S.W.2d 816, 819 (1992), cert. denied, 507 U.S. 919, 113 S.Ct. 1280 (1993).

In support of his argument that parol evidence is appropriate in this case, Mr. Stilley cites a single case, Hamburg Bank v. Jones, 202 Ark. 622, 161 S.W.2d 990 (1941). However, that case is clearly distinguishable to the current lawsuit because that case involved allegations of misrepresentation and fraud in the procurement of the contract. There are no such fraudulent allegations here; to the contrary, this is simply the classic case of an individual who signed an agreement acknowledging that he had received consideration, and is now trying to avoid his obligations under the contract. In fact, although no fraudulent allegations were asserted, if any fraud existed in the procurement of the agreement, it could be argued that it was on Mr. Stilley’s part, as it appears that he executed the indemnity agreement so that he could continue to control the litigation of the suit, knowing that if a judgment was entered against Mr. Speed, he would then raise the issue of “no consideration” in an attempt to avoid payment.

In short, because parol evidence is inadmissible and because consideration did in fact exist, the appellees were clearly entitled to payment under the indemnity agreement, and the trial court’s decision was correct.

III. Cooperation with Appeal

Appellant asserts that Mr. Speed’s cooperation with an appeal was required as a condition for indemnification and that the trial court erred in finding no such requirement. The simple answer to this question is “no.” This argument raised by Mr. Stilley has, in fact, no support in law as applied to the facts of this case. The indemnity agreement between the parties made no reference to an appeal, or any indication or statement about cooperation, as most liability insurance contracts do. In fact, the indemnification agreement indicates that a judgment would be paid, or a bond posted, by Mr. Stilley before an appeal would begin, as it specifically states that any judgment against Mr. Speed would be paid by Mr. Stilley “before a collection proceeding commenced.” Under Arkansas law, collection proceedings may begin within ten days after a final order is entered. Therefore, the plain language of this agreement clearly contemplates that Mr. Stilley would pay any such judgment, or post a bond, prior to an appeal and cannot be read to indicate that this step by Mr. Speed was necessary.

Not only do the undisputed facts of the case fail to support Mr. Stilley’s argument on this point, he cites no case law in support of it. The only law he cites involves cooperation in settlement negotiations, which is not applicable to this case, since Mr. Stilley was defending Mr. Speed in this lawsuit and the indemnification agreement was executed approximately one week before trial of this matter. Mr. Stilley was, therefore, aware of the exact nature of the lawsuit, as well as the settlement discussions.

Even more disturbing than the lack of factual or legal support for this argument is the fact that Mr. Stilley ignores the fact that he could have filed his own appeal. As an indemnitor, and the individual who would be liable for paying the judgment in this matter, Mr. Stilley had a pecuniary interest in this case and could have filed his own appeal. See In re $3,166,199.00, 337 Ark. 74, 987 S.W.2d 633 (1999); In the Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1999). The fact of the matter is that Mr. Stilley could have pursued an appeal on his own behalf, but he would have had to actually honor his agreement and admit that he was responsible under the indemnity agreement with his client; however, Mr. Stilley admitted on the record that he intentionally did not appeal so that he could make the above “no-consideration” argument in order to avoid paying pursuant to the indemnity agreement.

IV Intentional Tort and Indemnification

Mr. Stilley next argues that the trial court erred in ruling that he had to indemnify Mr. Speed even though the judgment was for the intentional tort of malicious prosecution. Once again, Mr. Stilley can cite no law in support of this argument which is relevant to the facts of this particular case — where a lawyer agrees to indemnify a client one week before a trial is to begin. In addition, Mr. Stilley failed to make this argument below, and is therefore procedurally barred from raising it for the first time on appeal.

Mr. Stilley appears to be confusing what type of judgment that he indemnified Speed against (the tort of malicious prosecution) for what he alleged Mr. Speed did to him (come into his office, “mislead” him and tell a “bunch of lies”). In other words, Mr. Stilley entered into the indemnity agreement knowing exactly what type of judgment he was indemnifying Mr. Speed against, even if Mr. Speed lied to him. For these reasons, we find no merit in appellant’s argument.

In support of his argument on this point, Mr. Stilley relies on cases involving insurance contracts, or other contracts of indemnity, which were executed prior to the act which is the subject of indemnification taking place. This case involves a situation where an indemnification agreement was entered into after the alleged improper conduct had occurred; and, since the only claim against Mr. Speed was for malicious prosecution, Mr. Stilley knew that the act he was indemnifying against was an intentional tort involving malice.

Indemnification agreements are contracts. As such, the clear meaning of the contract must be enforced. In looking at the contract in this case, it is clear that the trial court’s decision was correct. Mr. Stilley executed a contract whereby he agreed to be responsible for any judgment which might be rendered against John Speed on a claim of malicious prosecution. The indemnity agreement begins by citing the fact that Mr. Speed and Mr. Stilley are the “defendants in a lawsuit in Sebastian County, Arkansas, Case Number CV-97-538-II.” Mr. Stilley was the attorney, and a co-defendant; he was, obviously, quite aware that the only outstanding claim against Mr. Speed on February 7, 2000, the date the agreement was executed, was a claim for malicious prosecution. After referencing the lawsuit, the agreement then states in clear and unequivocal terms that Mr. Stüley would “indemnify and hold harmless the defendant, John Speed, for any damages assessed, apportioned, or otherwise charged to the co-defendant, John Speed, whether such damages are assessed, apportioned, or charged individuaüy, or joindy and severaUy against John Speed and the co-defendant Oscar Stüley.” Since the jury did return a verdict against Mr. Speed on the claim of malicious prosecution, this is exacdy the type of damages that the indemnity agreement provided for, and for which Mr. Stüley promised to indemnify Mr. Speed.

Based on the undisputed facts of this case, it is clear that the trial court correcdy interpreted the express and unequivocal terms of the indemnity agreement and properly held Mr. Stüley responsible for the damages assessed against Mr. Speed, even though those damages were for an intentional tort, since they were the exact damages set forth in the agreement.

V Standing

Appeüant contends that appeüees lacked standing to pursue a declaratory judgment action in this case. In addition to being a meridess argument, Mr. Stüley’s argument on this point is contrary to Arkansas case law. First, this is an action brought under the Declaratory Judgment Act. Declaratory judgments are used to determine the rights and liabilities of respective parties. The purpose of a declaratory judgment is to prevent “uncertainty and insecurity with respect to rights, status, and other legal relations.” Ark. Code Ann. § 16-111-102 (Repl. 1987). Under this Act, “[a]ny person interested under a . . . written contract ... or his rights, status, or other legal relations are affected by a . . . contract . . . may have determined any question of construction or validity arising under the . . . contract . . . and obtain a declaration of rights, status, or other legal relations thereunder.” Ark. Code Ann. § 16-111-104 (Repl. 1987). The indemnity agreement in this case was established with the sole purpose of Mr. Stüley being liable for a judgment to the appeüees if Mr. Speed had a judgment entered against him. Since such a judgment was entered against Mr. Speed, it is clear that the appellees are “interested parties” whose “rights, status, and other legal relations are affected by a contract.”

Moreover, this promise by Mr. Stilley to pay Mr. Speed’s “debts” (judgment) to appellees is a classic third-party-beneficiary scenario. As such, Arkansas law is clear that “a contract made for the benefit of a third party is actionable by such third party.” See Edgin v. Entergy Operations, Inc., 331 Ark. 162, 961 S.W.2d 724 (1998); Howell v. Worth James Constr. Co., 259 Ark. 627, 535 S.W.2d 826 (1976). The trial court looked at the indemnity agreement, which stated that Mr. Stilley would pay money to the appellees if they obtained a judgment against Mr. Speed, and reached the conclusion that there was a direct benefit conferred upon the appellees. Therefore, the trial court clearly did not err in finding that appellees had standing to bring this lawsuit.

For the reasons stated above, we affirm the trial court’s decision to grant appellees’ motion for summary judgment. Further, we refer this matter to the Professional Conduct Committee for whatever action it determines is appropriate. See Model Rules of Professional Conduct Preamble, Rule 3.5(c); Ortho-Neuro Med. Assoc, v. Jeffrey, 344 Ark. 72, 37 S.W.3d 577 (2001); Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994).

       The record indicates that the appellees offered to setde the case against Mr. Speed for $3,000.00 and that Mr. Stilley did not convey the offer to his client; however, this is a disputed fact and is not a part of our consideration in deciding this case.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    ARKANSAS STATE PLANT BOARD v. Billy Paul BULLOCK, d/b/a Bullock Flying Service
    01-216
    48 S.W.3d 516
    Supreme Court of Arkansas
    Opinion delivered June 28, 2001

      Mark Pryor, Att’y Gen., by: Arnold M. Jochums, Ass’t Att’y Gen., for appellant.

      Russell D. Berry, for appellee.
   Tom Glaze, Justice.

The Arkansas State Plant Board brings this appeal from the Arkansas County Circuit Court’s decision reversing the Board’s determination that Billy Paul Bullock, d/b/a Bullock Flying Service (BFS), a crop-dusting service, unlawfully used a pesticide in violation of Ark. Code Ann. § 20-20-214(a)(2) (Repl. 2000). We take jurisdiction of the appeal under Ark. Sup. Ct. R. 1 — 2(b)(6) because it involves a substantial question of law concerning the interpretation of a statute, Ark. Code. Ann. § 2-16-203(b) (Supp. 1999), and the Board’s penalty matrix regulation authorized under that statute.

Steve and Rhonda Harris initiated this action by filing a complaint against BFS with the Plant Board, alleging that on May 4, 1996, BFS allowed an aerially-applied chemical, Siam 4E, to drift onto their garden, causing damage to many of their plants. After the Plant Board investigated the Harrises’ complaint and held a hearing on the matter, the Board’s Pesticide Committee, and later the Board itself, concluded BFS had violated Ark. Code Ann. § 20-20-214(a)(2) by using a pesticide in a manner inconsistent with the labeling registered with the United States Environmental Protection Agency (EPA) or the Plant Board or in violation of EPA or Plant Board restrictions on the use of that pesticide. The Board imposed a $400.00 fine against BFS for the violation, and BFS appealed that decision to the Arkansas County Circuit Court as authorized under the Administrative Procedures Act, Ark. Code Ann. §§ 25-15-201 et seq. (Repl. 1996 and Supp. 1999). The circuit court reversed the Board’s decision, finding the evidence was insufficient to support the Board’s ruling and fine.

We first must consider § 20-20-214(a)(2) and the registered label that BFS is alleged to have violated or misused. As previously mentioned, § 20-20-214(a) (2) prohibits a licensed applicator of pesticides from using a pesticide in a manner inconsistent with the registered label or other Board restrictions. The chemical involved here is propanil, or Stam 4E, which is a selective postemergence herbicide for use only in the control of certain weeds that grow in rice crops. The warning label’s “use restrictions” for Stam 4E read as follows:

Do not apply to any crop other than rice. STAM 4E herbicide injures most crops except cereal grains and perennial grasses. Avoid drift or accidental application from turning aircraft on cotton, soybeans, corn, safflower, seedling legumes, vegetables, orchards, vineyards, gardens, shrubs, and ornamentals. Once applied, it does not release fumes hazardous to nearby crops. (Emphasis added.)

The label also provides that applicators are to “[a]void applications when the wind speed exceeds 10 mph because of drift hazard to sensitive crops and the possibility of uneven (streaked) application.”

The Plant Board found that BFS’s application of Stam 4E to Benny Thigpen’s rice crop resulted in an off-target drift onto nearby property occupied by the Harrises, and such application constituted using the product in a manner inconsistent with the above label use restrictions. In this appeal, we directly review the Board’s decision, not the circuit court’s, and in doing so, we must decide whether the Board’s decision is supported by substantial evidence, given its strongest probative force in favor of the agency’s ruling. Culpepper v. Board of Chiropractic Examiners, 343 Ark. 467, 36 S.W.3d 335 (2001). The question is not whether the testimony or evidence would have supported a contrary finding, but instead whether it supports the finding made. Arkansas Bd. of Examiners v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998).

Other standards that this court follows when reviewing administrative decisions direct us to review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992). The stated correlative rule is that, to establish an absence of substantial evidence, the party appealing the board’s or agency’s decision must demonstrate that the proof before the administrative board was so nearly undisputed that fair-minded persons could not reach its conclusions. Id. at 130. We also follow the settled rule that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Id. As such, the administrative agency or board is afforded great deference. Culpepper, 343 Ark. at 472.

In reviewing the record and giving deference to the Board’s ruling, as we must, we easily conclude that there is substantial evidence that supports the decision that BFS failed to comply with Stam 4E’s use restrictions on May 4, 1996, causing damage to the Harrises’ garden and trees. At the Board’s hearing, Rhonda Harris testified that she was awakened that morning by the sound of an airplane. She got up and looked out of her window, and noticed that her horse was running. When she stepped outside to try to calm the horse, she noticed a mist that burned her eyes. She recognized the smell in the air as that of Stam, so she immediately got a water hose and started spraying down her garden. She remained in the garden for approximately forty-five minutes, but when she became concerned about having the spray on her, she went inside to wash herself.

At some point after May 4, trees and plants in the Harrises’ garden began to show signs of burning. Plant Board Investigator Kevin Cauley went to the Harrises’ property on June 4, 1996, to look at their garden; he noted that the garden and trees had propanil burn that appeared to be about four weeks old. At the hearing before the Plant Board, Cauley appeared as the Board’s expert witness and introduced photographs he had taken of the burned plants. Cauley’s narrative report of the incident reflected that Steve Harris claimed the reason he waited in filing the request for an investigation was because Harris had talked to Thigpen after the application, and Thigpen said that he would pay Harris for his losses; however, after that, Harris did not hear from Thigpen for several weeks. Thigpen’s statement to the Plant Board was that Thigpen told Harris he would pay him for the damage to the Harrises’ garden as soon as Thigpen got his wheat cut and his soybeans planted. Thigpen also made a statement, contained in Cauley’s report, that he instructed BFS to put the spray on his fields on the morning in question regardless of the weather.

The Plant Board’s further investigation revealed that the records of DeWitt Fertilizer Company showed that Thigpen Grain & Cattle purchased a quantity of Siam on May 2, 1996, and the records of BFS showed that BFS had applied Siam on May 4, 1996, to Thigpen’s field. BFS’s records also showed that the wind speed on the morning of May 4, 1996, was three miles per hour and within label restrictions. However, based on his experience as a Plant Board investigator, Cauley concluded that BFS’s application of Siam to Thigpen’s field resulted in drift onto the Harrises’ property.

The Board also heard testimony from Patty Moore, whose house was located between Thigpen’s field and the Harrises’ property. Moore stated that the day before this incident, Thigpen had gone to visit her, and he informed her that if the wind was not blowing the following morning, he was going to spray his field. Thigpen offered to water Moore’s garden down if she did not want to get up that early. On the morning of May 4, around 6:30, Moore went outside after she heard the crop-duster and began to water down her garden; however, she did not feel any mist, and did not recall the wind blowing particularly hard.

The Board obviously believed Rhonda Harris’s testimony that she observed a crop-duster spraying Stam 4E on the morning of May 4, 1996, and that the chemical being sprayed had drifted onto her property and her face and skin. BFS’s assertion that it sprayed the chemical when the wind speed was less than ten miles per hour is not dispositive of whether its application was consistent with the label, since Rhonda Harris gave direct testimony that she saw and felt the drift of Stam 4E on the day BFS sprayed it on Thigpen’s property. Furthermore, as already mentioned, the Board’s expert, Mr.Cauley, confirmed that BFS sprayed Stam 4E on Thigpen’s nearby property on the day in question, that the Harrises sustained plant and tree damage from Stam, and that his opinion was that BFS’s application of Stam to the Thigpen field had drifted onto the Harris property. Cauley’s report further reflected that Thigpen had “instructed BFS to put the spray on Thigpen’s rice field on the morning of May 4, 1996, regardless of the weather.”

We are mindful of the rule that expert testimony qualifies as substantial evidence unless it is shown that the opinion is without a reasonable basis. See Ozark Gas Pipeline Corp. v. Arkansas Publ. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). We also are guided by the rule that gives the Plant Board the prerogative to believe or disbelieve any witness and to decide what weight to accord the evidence. Carlson, 334 Ark. at 618. While our review of the record reflects evidence that could have supported a finding that BFS complied with the Stam 4E warning label in issue, there, too, is compelling evidence to support the decision that the Board made. Accordingly, we affirm the Board’s decision.

The Board next contends that the $400.00 fine it imposed against BFS was not in error. Under Ark. Code Ann. § 2-16-203(b), the Plant Board may, in a lawful proceeding respecting licensing as defined in the Administrative Procedure Act, §§ 25-15-201 et seq., in addition to or in lieu of any other lawful disciplinary action, assess a civil penalty of not more than one thousand dollars ($1,000) for each violation of any statute, rule, or order enforceable by the State Plant Board. That statute also directs the Board to establish a schedule designating the minimum and maximum civil penalties to be assessed for violations of statutes, rules, or orders over which the Board has regulatory control. Ark. Code Ann. § 2-16-203 (b)(2). Accordingly, the Board adopted its own set of Pesticide Enforcement Response Regulations, which include a “penalty matrix,” a graph by which the Board determines the nature of a violation and assesses its severity and the appropriate sanction. For example, the violation at issue here is using a pesticide in a manner inconsistent with the registered label. The penalty matrix indicates that for such a violation, at the first level of enforcement, a warning letter is a proper penalty, if the violation is a minor one. If the violation is major, the Board may impose a fine of between $200 and $600 at this level. At the second level of enforcement, however, the Board may impose a fine in an amount between $400 and $800.

BFS urges that the May 4 incident should not be subject to the second level of enforcement, because it occurred prior to the May 17, 1996, violation for which BFS received a warning letter. Because the May 4 event was a “prior” violation, and not a “subsequent” one, BFS argues, the May 17 violation should not have been taken into consideration when the Board assessed the second-level civil penalty against him.

In response, the Board directs us to Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993), where this court held that it was appropriate to sentence the defendant as a habitual offender, even though his “prior” felony convictions arose in part from a crime that occurred after the one for which he was found to be a habitual criminal. The court wrote that there was “no question that had the prosecutor filed two informations, which was clearly within his authority, the first conviction would have been admissible for enhancement purposes irrespective of the fact that the conduct at issue in the first trial occurred after the conduct at issue in the case at bar.” Walker, 314 Ark. at 631.

We agree that the reasoning of Walker should control here. Thus, even though the conduct at issue in the first disciplinary proceeding (the May 17 incident) occurred after the conduct at issue in the case at bar (the May 4 incident), that earlier sanction was “admissible for enhancement purposes,” even though it was for an action that occurred later in time. For the reasons set out above, we affirm the rulings of the Plant Board.

       (a) The State Plant Board may . . . after opportunity for a hearing . . . deny, suspend, revoke, or modify any license or permit, or any provision thereof, issued under this subchapter if it finds that the applicant or the holder of a license or permit has committed any of the following acts, each of which is declared to be a violation of this subchapter . . . :
      (2) . . . used a pesticide in a manner inconsistent with the labeling registered with EPA or the Plant Board for that pesticide, or in violation of EPA or State Plant Board restrictions on the use of that pesticidef.]

       A “minor” violation is defined as one that “does not involve human health, safety, or endanger the environment. A “major” violation is one that “affects human health, safety, or the environment.”


author: Robert L. Brown, Justice.

text:
    BPS, INC., and Micro Flo Company, Appellants/Petitioners v. Jason PARKER, Appellee/Respondent; Allen Bartlo, BPS, Inc., and Micro Flo Company, Appellants/Petitioners v. Linda Winston, et al., Appellees/Respondents

    01-204
    47 S.W.3d 858
    Supreme Court of Arkansas
    Opinion delivered June 28, 2001

      Wright, Lindsey & Jennings, LLP, by: Gordon S. Rather, Jr., Michael D. Barnes, and Jane Weisenfels Duke; and Friday, Eldredge & Clark, by: Kevin Crass, for appellants/petitioners.

      Wilson & Valley, by: E. Dion Wilson, for appellees/respondents.
   Robert L. Brown, Justice.

This is an appeal from an order of the circuit court entided “Joint Findings of Fact and Conclusions of Law” in which the court denied summary judgment to appellants, BPS, Inc. and Micro Flo Company. The court of appeals granted a motion filed by appellees Jason Parker and Linda Winston to dismiss the appeal, and this court granted review of that dismissal. We deny the motion to dismiss this appeal and vacate the court of appeals’ order granting that motion. Furthermore, we reverse that part of the circuit court’s order which makes findings of fact and conclusions of law on the issue of the Fireman’s Rule and remand this matter to the circuit court with instructions to limit its order to the issue of whether summary judgment is appropriate.

The facts are that on May 8, 1997, the West Helena Fire Department responded to an emergency call at the BPS facility, which packages agricultural chemicals. The Fire Department received a report that the chemical, Azinphos Methyl (AZM), was smoldering in BPS’s Unit 2. As firefighters responded to the emergency at Unit 2, the building exploded, killing three firefighters, including Reginald Robinson, Sr., a volunteer firefighter. A fourth firefighter, Jason Parker, was injured in the explosion.

On August 8, 1997, Jason Parker filed a personal injury lawsuit against BPS and asserted that BPS representatives had misrepresented to the firefighters that there was no chance of explosive harm. He sued for negligence; willful, wanton, and reckless misconduct; strict liability due to the mishandling of ultra-hazardous chemicals; and the presence of hidden dangers on BPS’s premises. On October 31, 1997, Linda Winston, as administratrix of Reginald Robinson, Sr.’s estate, filed a wrongful death action against BPS and its president, Allen Bartlo. She sued for negligence; willful, wanton, and reckless misconduct; misrepresentation; hidden danger; and strict liability due to ultra-hazardous materials. Both complaints sought compensatory and punitive damages. Later, both Parker and Winston amended their separate complaints to include Micro Flo Company, which was BPS’s supplier of AZM, as a party defendant. In their respective answers to the amended complaints, BPS, Bardo, and Micro Flo stated that the claims of Parker and Winston were barred under the doctrine of the Fireman’s Rule. BPS also filed a third-party complaint against Micro Flo for contribution and indemnity, and Micro Flo cross-claimed against BPS.

On December 18, 1998, BPS filed a motion for summary judgment in the Parker case based upon the Fireman’s Rule. Allen Bartlo and BPS filed a similar motion in the Winston case. Micro Flo did the same in both cases. Parker and Winston both responded that factual issues existed, that exceptions to the Fireman’s Rule prevented summary judgment from being entered, and that the motions for summary judgment should be denied. Neither Parker nor Winston filed summary judgment motions on their own behalf. On May 22, 2000, the circuit court entered its order entitled “Joint Findings of Fact and Conclusions of Law.” In that order, the court recited the facts involved in the case, the issues involved in the case, and the applicable law. The circuit court made numerous findings of fact and conclusions of law in its order. It then concluded that summary judgment should be denied.

On June 15, 2000, BPS, Bardo, and Micro Flo (hereinafter referred to joindy as BPS) appealed “from the order containing joint findings of fact and conclusions of law of the Circuit Court[.]” On October 11, 2000, the two appeals were consolidated by order of the court of appeals. On January 15, 2001, Parker and Winston moved to dismiss the appeal as an invalid appeal from a denial of a motion for summary judgment. On February 7, 2001, the court of appeals granted that motion to dismiss. BPS petitioned this court for review of the dismissal of the appeal, and we granted review and set an expedited briefing schedule.

BPS raises two issues in its brief on appeal: (1) that the circuit court’s order is an appealable order, and (2) that the circuit court acted outside of the bounds of Ark. R. Civ. P. 56 when it made findings of fact and conclusions of law that granted affirmative relief to Parker and Winston. This had the effect, according to BPS, of striking part of its answer pertaining to its defenses. Thus, BPS contends that an appeal is appropriate under Ark. R. App. P. — Civ. 2(a)(4). With regard to requested relief, BPS asks that the dismissal of its appeal be vacated and that its appeal be reinstated. It further requests that the improper findings of fact and conclusions of law be set aside and that the circuit court be instructed to enter an order that merely denies the various motions for summary judgment.

Parker and Winston dispute the assertion that the circuit court made improper findings of fact and conclusions of law and rest their argument on the fact that this court has steadfastly refused to entertain appeals from denials of summary judgment. The appellees emphasize that the circuit court entered no directed verdicts on the liability issues. They further point out that this case has now been set for trial, and that BPS will have ample opportunity to present additional proof and argue its defenses respecting the Fireman’s Rule at that time.

It appears clear to this court that the issues before us involve not only the appealability of the circuit court’s order, but also consideration of a remedy to limit the scope of that order should we determine that it was improperly entered. When this court grants a petition for review, we consider the matter as if the appeal had been originally filed in this court. See Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000). Flence, we consider the appeal by BPS and the motion to dismiss by Parker and Winston, which was granted by the court of appeals.

We begin by examining the circuit court’s order. It is eighteen pages in length and, as already stated, entitled “Joint Findings of Fact and Conclusions of Law.” The order begins by stating that it is prompted by the identical motions for summary judgment filed by the appellants. A five-page recitation of the facts follows. That, in turn, is followed by a discussion of the law of summary judgment and the Fireman’s Rule, as adopted by this court in Waggoner v. Troutman Oil Co., 320 Ark. 56, 894 S.W.2d 913 (1995).

The circuit court then made certain findings of fact and conclusions of law. We quote directly from the circuit court’s order:

Plaintiffs have established the facts and circumstances in the instant cause ahowing for the instigation of the various defenses asserted and have overwhelmingly proven through the testimony of the defendants’ witnesses themselves: (a) the presences [sic] of misrepresentation on the part of Micro Flo Company and BPS; (b) the presence of continuous affirmative acts of neghgence afer [sic] the initial neghgence which caused the accident; (c) the presence of hidden peril and dangers which were known to both Micro Flo Company and BPS relative to reactivity and flammability; (d) the presence of hidden peril caused by a previous dousing of chemicals through the sprinkler system of BPS either early the [sic] morning of the date of this incident or the day before; (e) the presence of a forklift with a propane tank in vicinity [sic], i.e. heat or fire; (f) the presence of Maneb in the area of the AZM which had a known reactivity propensity after being exposed to water; (g) the presence of AZM in an area adjacent to a heated pipe.
In conclusion, the Court incorporates its findings of facts and conclusions of law and more specifically finds that the defendants’ rehance on Waggoner is misplaced. . . . Specifically, the rule of law that a firefighter cannot recover for injuries or death that results from ordinary or open and obvious dangers which are associated with his/her employment. However, the mere fact that a person is a firefighter injured or killed in the hne of duty is not enough to be an absolute bar to recovery. ... It is undisputed in this case that on May 8, 1997, BPS reported to the City of West Helena Fire Department that they had a smoldering supersack of AZM and requested that firefighters remove the material from Warehouse No. 2, where the material was located, this [sic] factual issue is sufficient to deny summary judgment. . . .
The Court, specifically, finds that the incorrect MSDS sheet constituted a hidden danger, and such defect is attributable to BPS and Micro Flo Company; that the failure to correctly test and rate such a volatile and dangerous chemicals [sic] is tantamount to willful and wanton conduct; and supplying the firefighters with this limited amount of incorrect information was an independent act of negligence and arguably reckless indifference to the value of human fife, on the part of both defendants BPS and Micro Flo Company.
This Court has no hesitancy in determining that the Motion for Summary Judgment in and of itself does not comport with the requirement of proof for proof, and it is deficient in the elements plead on the specific subject matter of summary judgment per the Firemen’s Rule as required by Lipson v. The Superior Court of Orange County; John Berger; Real Party in Interest, cited as 31 Cal. 3d [362,] 644 P.2d [8]22; 1982 Cal. Lewis 178; 182 Cal Rptr. 62 (1982). The Court finds that there are exceptions to the Firemen’s Rule, and the Court finds that the exceptions apply to the facts of this case. The Court further finds that BPS acted with willful and wanton misconduct in concealing a hidden danger. That the testimony shows that the President of BPS, Allen Bartlo, had knowledge that the chemical properties of AZM were volatile and, in fact, wrote letters and requested further information and testing from Micro Flo Company on this chemical, but this information was not supplied to the City of West Helena Fire Department nor the West Helena firefighters at any time prior to the explosion. BPS received information that the City of West Helena Fire Department received information from the chemical engineer for BPS in New Jersey in which he telephoned the City of West Helena Fire Department after the explosion occurred and stated that if AZM was in the building and there was a water sprinkler system, that the chemical would explode. Thus, BPS had prior knowledge that the chemical compound, AZM, had the potential to explode and concealed this knowledge from the City of West Helena Fire Department which is the essence of a hidden danger.
The Court further finds from the plaintiffs’ exhibits and deposition that BPS had knowledge prior to the explosion that Micro Flo Company’s MSDS for AZM was incorrect. Correspondence and memos from BPS to Micro Flo Company which have been introduced show that BPS had in the past worked with another brand of AZM (Guthion) which is rated as a “2” for both flammability' and reactivity. The inquiry was further supplemented by samples of AZM being furnished to BPS for testing and an explanation that the product would smolder and smoke at approximately 170 degrees Fahrenheit. BPS further corresponded with Micro Flo Company indicating that the AZM was up and running, and that they had not experienced any problems with the dust they had expected. None of this information or other information for which BPS had knowledge with regard to potential problems with AZM being flammable, explosive, or otherwise, reactive was shared with the firefighters. The Court also finds that the evidence shows in this case that the chemist for BPS’s New Jersey office telephoned the City of West Helena Fire Department and asked if the sprinklers were activated. Upon questioning about what would happen if the sprinklers went off, the chemist stated that there would be an explosion.
The Court further finds that the City of West Helena firefighters were not told about a propane forklift that was left by a BPS employee in close proximity to the smoldering sack of AZM. Obviously, propane is highly explosive, and the firefighters should have been warned.
The Court further finds evidence that BPS had advanced knowledge of a potential problems [sic] with Micro Flo Company’s AZM product. A truck driver who delivered the product and BPS employees reported an unusually strong and sickening odor from one of the two truckloads of AZM delivered prior to the explosion, and that there was a torn supersack of AZM.
The Court specifically finds that the joint investigation report by the EPA and OSHA, which sets forth findings, was taken into consideration by the Court and, therefore, for the purpose of the Court ruling on the motion, the Court adopts said report as well as all of plaintiffs’ other exhibits including the deposition of BPS President, Allen Bardo, and other [sic] in the record herein.
The Court finds that the pleadings revealed that BPS accuses Micro Flo Company of misconduct and misrepresentation, mainly with regard to the faulty MSDS sheet, and Micro Flo Company accuses BPS of misconduct and other fault, which allegations in and of themselves give rise to a factual controversy such that the bare application of the Firemen’s Rule to the facts of this case is wholly inappropriate, and such that summary judgment cannot be granted to either defendant.
The pleadings and other evidence just do not lend themselves to the conclusion that this drastic remedy of the Firemen’s Rule should be invoked by this Court. Factual controversies regarding valid exceptions to the Firemen’s Rule are very real or have been plead [stc], and there is [sic] sufficient factual allegations to prove exceptions to the Firemen’s Rule, and summary judgment should be denied. The Court finds that the dangers which the firefighters faced on May 8, 1997, were not apparent nor were they obvious to even the trained eye, and the defendants had the opportunity to supply the firefighters with correct/appropriate information and warnings but did not. Defendants’ Motion for Summary Judgment does not address the issues of strict liability or res ipsa loquitur or [sic] plead by plaintiffs. The Court having found that issues of fact prevent the granting of summary judgment reserves ruling on these issues. Plaintiffs raise the unconstitutionality of the Firemen’s Rule, and the Court reserves its ruling for the same reason but note [n'c] that the ruling of Ouachita Wilderness Institute v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (Ark. 1997) which was decided after Waggoner creates a question of the viability of Waggoner.

It is patently clear to this court that the circuit court, while finding that factual issues pertained which militated in favor of denying summary judgment, also made specific findings of fact and conclusions of law relative to the ultimate defense asserted by BPS, which is the Fireman’s Rule. Specifically, the court concluded that exceptions to the Fireman’s Rule did exist and found that BPS’s actions constituted willful and wanton misconduct, which involved hiding a danger from the firefighters. These findings were made even though the only issue before the court was whether genuine issues of material fact existed so as to foreclose summary judgment in favor of BPS. See Ark. R. Civ. P. 56(c). This court has often stated that the purpose of summary judgment is not to try the issues but to determine whether there are any issues to be tried. See, e.g., Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). This basic maxim of summary-judgment law was violated extensively in this case.

Parker and Winston, however, raise another maxim of summary-judgment law and that is that this court does not take appeals from denials of summary judgment. The appellees are correct that this is a well-settled principle in this court’s jurisprudence. See Gibson Appliance Co. v. Nationwide Ins. Co., 341 Ark. 536, 20 S.W.3d 285 (2000); Dobie v. Rogers, 339 Ark. 242, 5 S.W.3d 30 (1999); Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999); Liberty Mut. Ins. Co. v. Thomas, 333 Ark. 655, 971 S.W.2d 244 (1998). Such review is not even available after a trial on the merits. See Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996). The rationale for this rule is that “a final judgment should be tested upon the record as it exists at the time it is rendered, rather than at the time the motion for summary judgment is denied, since further evidence may be supplied at trial.” Ball, supra (quoting Rick’s Pro Dive ‘N Ski Shop, 304 Ark. 671, 673, 803 S.W.2d 934, 935 (1991)).

BPS, however, maintains that it is not appealing from a denial of summary judgment but from that part of the circuit court’s order where improper findings of fact and conclusions of law were made. In making this argument, BPS leans heavily on the court of appeals’ decision in Danco Constr. Co. v. City of Ft. Smith, 268 Ark. 1053, 598 S.W.2d 437 (Ark. App. 1980). In Danco Constr., the City had sued the construction company for damages arising out of negligence in the construction of a sewer line. Danco answered and affirmatively pled the statute of limitations as a defense. Danco then moved for summary judgment raising the same limitations defense. The circuit court found that there was a genuine issue of material fact and overruled the motion. But the court then went forward and concluded that the City’s claim was not barred by the statute of limitations. Danco appealed. The court of appeals first noted that a denial of summary judgment is not a final order from which an appeal may be taken. The court did not disagree with this principle of appellate law, but it then considered Danco’s twin arguments — that the circuit court’s ruling had the effect of granting summary judgment for the City and the ruling would also operate to bar Danco from offering evidence at trial on the limitations defense.

The court of appeals held as follows:

We reverse the portion of the order of the trial court finding or holding the City of Port Smith is not barred by the statute of limitations. In doing so we make it clear we are not holding the City is not barred. In view of the determination by the court that there is a genuine issue of material fact, the motion for summary judgment should have been simply denied. The parties shall be permitted to introduce any further evidence they wish touching on the issue of the statute of limitations and on the date the statute began to run.
We do not review the court’s denial of the motion for summary judgment since the order is interlocutory and not appealable. However, the part of the order ruling the City is not barred by the statute of limitations would operate to foreclose appellant from further asserting that defense and offering evidence at trial on that issue. That portion of the order is therefore a final disposition of that issue, and is therefore appealable.

Danco Constr., 268 Ark. at 1056, 598 S.W.2d at 439.

This court has followed the reasoning of the court of appeals in the Danco Constr. case on at least one occasion. See Young v. Staude, 280 Ark. 298, 657 S.W.2d 542 (1983) (trial court cannot deny summary judgment and refuse to find a promissory note usurious but then grant relief not requested by reforming the note to make it non-usurious). We take this occasion to do so again. We formally adopt the reasoning of the court of appeals in Danco Constr. and apply it to the facts of this case. In the instant case, as in Danco Constr., the circuit court went far beyond merely denying summary judgment to BPS, but it effectively granted relief to Parker and Winston and foreclosed BPS from further asserting a defense under the Fireman’s Rule and from offering evidence at trial on that issue. This was clear error. As in Danco Constr., we consider that portion of the circuit court’s order where findings of fact and conclusions of law were made which effectively decided the Fireman’s Rule issue to be a final disposition and appealable. We reverse that portion of the circuit court’s order where such findings and conclusions were made and hold that the order denying summary judgment must be limited to the single issue of whether genuine issues of material fact exist.

We stress that in deciding as we do today, we are not determining whether the Fireman’s Rule applies in this case or does not apply. That is an issue to be further developed in the circuit court. Moreover, we underscore the uniqueness of this case, where the circuit court has drifted into deciding the merits of a matter which was not yet ripe for decision.

For the foregoing reasons, the motion of Parker and Winston to dismiss the appeal is denied and the order of the court of appeals granting that motion is vacated. We also reverse that portion of the circuit court’s order which makes findings of facts and conclusions of law on the Fireman’s Rule defense and remand the case with directions that an order be entered consistent with this opinion.

       Briefly stated, the Fireman’s Rule provides that a professional firefighter may not recover from a private party for injuries arising out of the scope of his duties even though the private party may have been negligent in causing the fire and those injuries.

       Maneb is another agricultural chemical.

       An MSDS sheet is a Material Safety Data Sheet that accompanies products and tells the properties and characteristics of the products.


author: Robert L. Brown, Justice. Ray Thornton, Justice,

text:
    Richard COX v. STATE of Arkansas
    CR 00-345
    47 S.W.3d 244
    Supreme Court of Arkansas
    Opinion delivered June 28, 2001

      Etoch Law Firm, by: Louis A. Etoch, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Richard Cox, was tried and convicted of capital murder resulting from the death of Holly Strickland. He was sentenced to life in prison without the possibility of parole. He appeals and raises five points: (1) the trial court erred in not granting his motion for directed verdict at trial; (2) the trial court erred in not suppressing his custodial statement; (3) the trial court erred in excluding from evidence statements by Kingrale Collins that Collins had committed the murder; (4) the trial court erred in not declaring a mistrial after allegedly improper comments and argument by the prosecuting attorney; and (5) the trial court erred in not requiring a racially neutral reason from the prosecuting attorney when the prosecutor struck a potential African-American juror. We hold that none of the points has merit, and we affirm.

The facts of this case are taken from the statement given by Cox to Wynne police officers and from various witnesses at his trial. In the early morning hours ofMay 18, 1996, Kingrale Collins, who was in his twenties, and Cox, who was age sixteen at the time, went to Collins’s house in Wynne and got Collins’s 12 gauge pump shotgun and shotgun shells. The handle of the shotgun was taped with gray tape. Cox carried the shotgun until the two young men crossed the railroad tracks when he handed it to Collins. Cox said that Collins told him he was “going to get some money” that was owed him.

' Cox and Collins first stopped at a house trailer and knocked on the door. No one answered, and they left. According to Cox, Collins then stopped at two more residences by himself, a white house and an apartment complex, and knocked on the doors, while Cox watched from a distance. Two witnesses for the State, Charlotte Archer and Greg Wilson, confirmed that they had heard knocks on their doors during this time period. Ms. Archer testified that she looked through a window and saw two young black males standing at her door. She did not answer the door. Greg Wilson testified that at about 2:00 or 3:00 a.m. he heard someone beating on his door. He went to the door, and no one was there. Later, he heard shots and went out to his porch where he saw “two guys” running down the street with a shotgun.

According to Johnny Strickland, the husband of the murder victim, he was in the bathroom having just arrived at a friend’s house with his wife at around 2:30 a.m. He heard shots, ran out to the living room, and found his wife on the floor in a pool of blood in front of the door. She showed no signs of life. Dr. Stephen Erickson, a forensic pathologist with the State Crime Lab, testified that she died from a single shotgun wound to the right arm, and right chest.

In Cox’s statement to Wynne police officers, he denied going to the front door where Holly Strickland was killed but stated that he heard three shots and heard the victim scream. He admitted that his finger prints were on two of the loaded shells in the shotgun and on the trigger as well. He denied killing Holly Strickland, however, and was adamant that Collins had done it. He did admit to carrying and hiding the shotgun as he ran away from the crime scene with Collins. When asked what would have happened if the man in the trailer had opened his door, Cox answered: “I guess he would have shot him.” He told interrogating police officers that Collins asked him to imitate the victim’s scream, and when Cox did, Collins laughed.

At about 3:00 that same morning, Antonio Milam reported information about Collins’s connection to the murder to the Wynne Police Department. A search warrant was issued for Collins’s house where a shotgun and shells were found. The shotgun proved to be the murder weapon used in the Strickland slaying. On May 22, 1996, Cox was arrested and interrogated by Wynne police officers. First, he answered questions implicating himself in the crime. He then signed a written statement that summarized his activity on the night of the crime. Later, he moved to suppress those statements on the basis that they were not voluntarily given and his Miranda rights were not knowingly and intelligently waived. The circuit court denied that motion. He was subsequently charged with capital murder, and the death penalty was requested. He was convicted of capital murder, as already indicated, and sentenced to life in prison without parole after the State waived the death penalty. Collins, in a separate trial, was convicted of capital murder and sentenced to death. We affirmed Collins’s conviction and death sentence. See Collins v. State, 338 Ark. 1, 991 S.W.2d 541 (1999).

I. Sufficiency of the Evidence

For his first point of appeal, Cox contends that the trial court erred in failing to grant his motion for directed verdict. Fie maintains that there was no evidence presented that he fired the fatal shots. Indeed, he points to the fact that in his statement, which the prosecutor introduced as part of the State’s case-in-chief, Cox said that Collins was the murderer. In addition, he urges that there was no proof that he acted with deliberation and premeditation. On the contrary, he claims that he was merely present at the crime scene without any indication that Collins would do what he did.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Ferguson v State, 343 Ark. 159, 33 S.W.3d 115 (2000); Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Ferguson v. State, supra; Terrell u State, supra. Substantial evidence is evidence that is of sufficient certainty and precision that it compels a conclusion one way or another. Ferguson v. State, supra; see also Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1999). On appeal, this court views the evidence in the light most favorable to the State and sustains a judgment of conviction if there is substantial evidence to support it. Ferguson v. State, supra; Terrell v. State, supra. Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to other assignments of circuit court error. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996).

The prosecution’s theory of the case at Cox’s trial was that he was an accomplice in the Strickland murder with Collins. Our Criminal Code defines an accomplice as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Ark. Code Ann. § 5-2-403(a) (Repl. 1997); see also AMCI 2d 401. Mere presence when the crime is being committed and when one does not have a legal duty to act does not make one an accomplice. See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); see also AMCI 2d 404.

We first note that the jury was instructed on the law of accomplice liability, which included an instruction on mere presence. The jury obviously concluded that Cox was an accomplice with Collins in perpetrating the crime. We believe that the jury’s verdict is supported by substantial evidence. Cox’s fingerprints were on two of the shells loaded into the shotgun, and his fingerprint was on the trigger. By his own admission, he accompanied Collins to the murder scene and carried the shotgun part of the way on that journey. After the murder, he fled with Collins. He carried the shotgun while fleeing and tried to hide it on his person. He also accompanied Collins to the first residence, which was a trailer. Moreover, the jury could have inferred from these facts that Cox did more in perpetrating the murder than simply assisting Collins. See, eg, Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). We affirm the circuit court on this point.

II. Suppression of Statement

For his next point, Cox maintains that his statement to police officers should have been suppressed because it was not voluntarily given and because he did not knowingly and intelligently waive his Miranda rights. We affirm the circuit court.

a. Voluntariness

First, with regard to whether Cox voluntarily admitted his participation in the crime, he underscores that he was only age sixteen at the time of the police interrogation and a ninth grade student with an I.Q. of 92. He says that he was arrested and handcuffed at about 10:00 p.m. on May 22, 1996, and that his mother was never notified before the police interrogation. In addition, he claims that he was the victim of false promises of leniency by the interrogating police officers. As an initial matter, he claims that Officer Roger Speer of the Wynne Police Department told him that he could help himself by telling the truth and that the prosecuting attorney would want to know whether he cooperated. It was after this exchange, according to Cox, that he told his story. Furthermore, towards the end of the interrogation, Chief Lynn Rogers said to Cox that he would probably be out on bond the next day. Fie claims that that was a false promise, and, as a result, his statement to the police officers was not only the result of coercion and intimidation but also due to deception.

Our court has set out the standards for reviewing the voluntariness of statements resulting from police interrogation:

We have said that statements made while in police custody are presumed to be involuntary and the burden rests on the State to prove their voluntariness and a waiver of Miranda rights by a preponderance of the evidence. See Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998); Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). In determining voluntariness, this court looks to whether the statement and waiver were the result of free and deliberate choice rather than coercion, intimidation, and deception. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999); Smith v. State, supra, citing Colorado v. Spring, 479 U.S. 564 (1987) and Moran v. Burbine, 475 U.S. 412 (1986). On appeal, this court makes an independent determination of the voluntariness of a confession, but in doing so, we review the totality of the circumstances and will reverse only when the trial court’s finding of voluntariness is clearly against the preponderance of the evidence. See Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996); Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995). We recognize in our determination of whether a trial court’s finding is clearly erroneous that conflicts in testimony are for the trial court to resolve. See Jones v. State, supra. Where it is apparent from the record that a statement is not the product of an accused’s free and rational choice and where the undisputed evidence makes clear that the accused did not want-to talk to police detectives, the Supreme Court has held that due process of law requires that the resulting statement not be used against the accused. Mincey v. Arizona, 437 U.S. 385 {1978). Other factors mentioned in Mincey, in addition to the fact that the accused made repeated requests that the interrogation stop so he could retain a lawyer, were that he was weakened by pain and shock, isolated from family, friends, and legal counsel, and was barely conscious. Under these circumstances the Court held that Mincey’s will was overborne and the statement could not be used against him.

Riggs v. State, 339 Ark. 111, 119, 3 S.W.3d 305, 309-310 (1999).

This court has also consistently held that relevant factors in determining whether a confession was involuntary are age, education, and the intelligence of the accused as well as the lack of advice as to his constitutional rights, the length of detention, the repeated and prolonged nature of questioning, and the use of mental or physical punishment. See, e.g., Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997).

In the instant case, it is true that Cox was sixteen and had an average I.Q. He was also arrested and interrogated without notice to his mother. He, of course, was subsequently charged as an adult with capital murder pursuant to Ark. Code Ann. § 9-27-318 (Repl. 1998). Accordingly, notifying his parent was not required. See Ray v. State, 344 Ark. 136, 40 S.W.3d 243 (2001); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). Moreover, Cox’s age of sixteen is not of such significance, standing alone, to invalidate the statement. See, e.g., Miller v. State, 338 Ark. 445, 994 S.W.2d 476 (1999); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). These circumstances enumerated by Cox do not render his statement inadmissible, and the circuit court did not clearly err in ruling as it did.

Cox, however, goes further and specifically contends that Wynne police officers made false promises of leniency. He is correct that our blackletter law states that false promises of leniency will invalidate a confession. See, e.g, Bisbee v. State 341 Ark. 508, 17 S.W.3d 477 (2000); Sanford v. State, supra; Humphrey v. State, supra; Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). The relevant colloquy at issue between Officer Speer and Cox follows:

SPEER: Here’s what’s going to happen. Now, one of the ways, you know, you can help yourself is to tell the truth. Now, this is benefitting you by telling the truth.
Cox: Okay.
SPEER: Because what I’m going to do,, whenever I get to the prosecutor, he’s going to say, “Well, did either one of them cooperate with you? Did either one of them want to tell you the truth about what happened?” As of right now, I’ve got one person that I can say, “Yes, he cooperated with me.”
COX: Okay, okay, I’ll tell the truth.

Our reading of Officer Speer’s comments is that he was advising Cox to tell the truth and that he would tell the prosecutor if Cox cooperated. At no point did he state that leniency would flow from Cox’s telling the truth. At no point did he state that he or anyone else other than the prosecutor could mete out leniency. We conclude that Cox’s proof falls short of a false promise of leniency when no promise was made by Officer Speer, and Officer Speer had no authority to make such a promise.

Moreover, we conclude that Chief Rogers’s indication that bail would be set for Cox the following day had no impact on whether Cox voluntarily made his statement. The discussion between Cox and Chief Rogers regarding bail follows:

Cox: Will I be able to leave tomorrow? Or will I have to stay here until court, cause I don’s want to do that?
ROGERS: Uh, we’ll make arrangements for a bond to be posted for you.
COX: A bond, how much?
ROGERS: Well, that’ll be up to the judge.
Cox: So, like, my brother is in the army right now and he gets some money out of the bank and pays my bond, I can go home?
ROGERS: Yea, well, like I said the judge will be the one that post bond.
COX: So the bond (inaudible).
Rogers: I don’t set bond.
COX: I get the bond tomorrow. Probably?
Rogers: Probably, ok.
COX: So can I call my brother, right now, and tell him?
ROGERS: We’ll let you make a phone call as soon as you get over to the jail.

Again, Cox argues that this amounted to a false promise by Chief Rogers that he would be bonded out of jail the following day. The chief of police, however, was clear that he did not set the bonds and that the judge did. The chief does appear to agree with Cox that he would “probably” have bond set the next day. We disagree, however, that this was a promise that misled Cox or in any way induced him to continue making a statement. There is also the fact that Cox had already given his statement to Officer Speer and reiterated part of it to Chief Rogers before this colloquy regarding the bond took place. The one new fact that did develop after the bond colloquy was Cox’s admission that his fingerprint was probably also on the shotgun’s trigger because he put the safety on and pulled the trigger to make certain that the safety had been activated.

In short, we conclude that no false promise of leniency was made by Officer Speer or Chief Rogers. Thus, the circuit court did not clearly err in finding that Cox’s statement was voluntary.

b. Knowing and Intelligent Waiver

Cox further claims that his waiver of his Miranda rights was not knowingly and intelligently made. We need not address this point. Following the suppression hearing, the circuit court made the following ruling:

The Court is of the opinion that the State has met its burden of proof and has satisfied the Court the statement was freely and voluntarily given. I don’t find that there are any such promises that would require the denial of the use of the statement by the State. The promises by the officers were complied with. Some things may have to come out of the videotape or the statement. We will deal with that later.

At no point does the circuit court address the waiver issue, and Cox did not urge that it do so. We have held that the question of voluntariness and the question of a knowing and intelligent waiver are separate inquiries. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). Cox, of course, was given his Miranda warnings both at the time of his arrest and when the interrogation began. In any case, the failure of Cox to obtain a ruling on waiver precludes our consideration of this issue. Id.

III. Exclusion of Collins’s Statements

Cox next claims that it was error for the circuit court to exclude incriminating statements made by Kingrale Collins to two separate people.

The first statement that Cox desired to introduce was Collins’s statement to Antonio Milam after the Strickland murder: “I shot the bitch.” According to Cox, at the time Collins made that statement, he had the shotgun and shotgun shells in his hand. The second statement that Cox intended to introduce involved this colloquy between Collins and Keith “Rusty” Ward, the Cross County Jailer:

COLLINS: Rusty, do you know what I’m charged with?
Ward: No.
COLLINS: It’s a capital murder.
Ward: Man, that’s a heavy charge.
Collins: Yeah, and I did it too.

The prosecutor stipulated that Collins was unavailable to testify but moved in limine that the statements be excluded as hearsay and because Cox and Collins were accomplices. The circuit court granted the motion and admonished Cox throughout the trial not to allude to these statements. Cox contends that this was error.

Specifically, Cox maintains that Collins’s admissions constituted an exception to the hearsay rule under Ark. R. Evid. 804(b)(3), which reads:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception. (Emphasis added.)

Reading this rule, we first note that Collins was clearly unavailable. Going forward, the rule reads that a statement which exposes the declarant, in this case Collins, to criminal liability, and also exculpates the accused (Cox) is not admissible unless it is proven trustworthy by corroboration. Cox, in his arguments, focuses on the fact that the statements were against Collins’s penal interests and were trustworthy, as shown by Collins’s ultimate conviction. Nevertheless, we question the application of this rule when accomplices are involved. The prosecutor’s theory of the case was that the two young men were accomplices, an issue that we have already discussed. The fact that Collins says he committed the murder does not exclude the fact that Cox was an accomplice and assisted in its perpetration. The jury found that Cox was culpable, after being instructed on the law of accomplice liability. Accordingly, we hold that the circumstances of these statements do not fall within the ambit of the hearsay exception set forth in Ark. R. Evid. 804(b)(3).

Furthermore, we do not believe that our case of Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), mandates a different conclusion, as Cox would have it. That case concerned the issue of third-party culpability and what is required, but it did not involve Rule 804(b)(3) or the issue of accomplice liability. Those matters govern our decision in the instant case. The circuit court did not abuse its discretion in denying the admission of these statements into evidence.

IV Mistrial Motion

Cox claims that the circuit court erred in not declaring a mistrial when the prosecutor made derogatory comments directed towards him in closing arguments. The prosecutor’s comments, defense counsel’s objection, and the circuit court’s ruling follow:

PROSECUTOR: It’s ludicrous for Mr. Etoch to stand up here and try to tell you that Cox didn’t know these things. Mr. Long told you in voir dire, sometimes people try to get you to believe some ridiculous things in here and they will. I made a list of some of the doozies I’ve heard so far. Labeled, “the crazy things you should not believe” if the defendant is polite during the interrogation, you can’t convict him. It doesn’t matter what comes out of his mouth. If he’s polite, you can’t convict him.
DEFENSE Counsel: Your Honor, I object to that characterization that maybe I said something like that.
COURT: I don’t know that he said that, he asked some questions. I guess you can argue what you think he was getting at and going to.
PROSECUTOR: Mr. Etoch is about to get up here and he’s going to try to sell you a load of crap.
DEFENSE: Your Honor, I object. I’ve been attacked, attacked, and attacked. Mr. Ladd does not have a clue as to what I’m going to say. He has no idea.
COURT: Use a different phrase. The objection is sustained.
PROSECUTOR: Mr. Etoch is about to get up here and tell you why his client is not guilty of killing Holly Holmes Strickland. I think all of the things he is about to tell you fall under number four in my list of “crazy things you should not believe.”
DEFENSE: Your Honor, may we approach?

Defense counsel then asked for a limiting instruction, and the circuit court refused.

We have consistendy held that the declaration of a mistrial is an extreme remedy, which should only be granted when justice cannot be served by continuing the trial. See, e.g., Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001); Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000). Remarks that require reversal are rare and require an appeal to the jurors’ passions. Williams v. State, supra; Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). The circuit court is given broad discretion to control counsel in closing arguments, and we only interfere with such discretion when there has been a manifest abuse of discretion. Calloway v. State, supra; Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

The prosecutor’s comment that defense counsel was about to sell the jury a “load of crap” was certainly crude and inappropriate. However, we conclude the circuit court correctly sustained defense counsel’s objection and declined to declare a mistrial.

Cox further takes issue with the prosecutor’s closing argument where this colloquy took place:

PROSECUTOR: Think about what your experiences in life have taught you. If two people are involved in something like this together and you separate them and interview them, you ask them both, “did you pull the trigger?”
DEFENSE: Your Honor I object. May I approach? (Then bench conference.) Your Honor, all these jurors know some facts about this case. Mr. Long has been going at it, on and on about he get (sic) in Kingrale Collins’ statement and now he’s saying that if two people are separated, each person says the other one did it. He’s jut trying to get in Kingrale Collins’ statement. I object and I move for a mistrial.
PROSECUTOR: It’s nothing but common sense, common argument.
Defense: He’s arguing what the co-defendant said, not what Richard Cox said.
Court: Motion is denied.
PROSECUTOR: You take these two people who you are trying to make criminally responsible for their activities and you separate them, you ask them both, did you pull the trigger? I leave it for you to determine if each of them was asked that question what it would be.
Defense: I object.
COURT: Objections overruled.
PROSECUTOR: I leave it for you to deduce what each of the responses to that question would be, simply because they would both be trying to avoid as much responsibility as they could. “Oh, I carried, but I didn’t pull the trigger. I loaded it, but I didn’t pull the trigger.”
DEFENSE: I guess this is a continuing objection, your Honor.

Cox argues that the prosecutor’s argument amounted to the prosecutor’s saying that Collins pointed the finger at Cox as the perpetrator of the murder just as Cox had said Collins committed it. We do not see it that way. Rather, it appears to us that the prosecutor broached a hypothetical situation and that his allusion, if any, was to Cox’s statement where he admitted to only carrying the shotgun but not to pulling the trigger. In our judgment, there had to have been a more specific reference to Collins’s statement, where he incriminated Cox and said he was the shooter, for error to have occurred. That did not transpire.

We discern no abuse of discretion when the circuit court overruled Cox’s objection.

V. Batson Motion

For his final point, Cox asserts that the circuit court erred in rejecting his Batson challenge. See Batson v. Kentucky, 476 U.S. 79 (1986). Specifically, he urges that error was committed by not requiring the prosecutor to give a racially neutral reason for striking an African-American juror.

The facts surrounding his argument, according to Cox, are that fifty-four members of the venire were questioned as potential jurors in this case. Nine of those persons were African-Americans. Of those nine persons, seven were excused for cause by the circuit court, one was excused by agreement of the parties, and the one potential juror at issue, Dorothy Caddell, was excused by the prosecutors by peremptory challenge. The result was that Cox was tried by an all-white jury. Counsel for Cox underscores the significance of this because Cox is black and the victim, Holly Strickland, was white.

When Ms. Caddell was being questioned by the circuit court as part of voir dire, she admitted to having been the victim of a crime. In answer to the prosecutor’s questions, she initially said that she could impose either the death sentence or life without parole on Cox and that she could also follow an instruction on accomplice liability. However, she later stated in response to the prosecutor’s questions that she could not sentence a sixteen-year-old to death. She also advised defense counsel that she had previously served on a jury where the defendant was found not guilty. She further stated that her son-in-law was a policeman in Forrest City.

At the time that Dorothy Caddell was questioned as part of voir dire and then struck by the prosecutor, only seven jurors had been seated. Four African-Americans had been excluded by the circuit court or by agreement of the parties. Four additional African-Americans remained to be questioned. Defense counsel made his Batson motion and argued that a prima facie case had been made because there were no African-Americans on the jury and no racially neutral reason had been given to exclude Ms. Caddell. The circuit court responded that it found that a prima fade case showing a Batson violation had not been made. The prosecutor added that there had been no pattern of discrimination, which Batson requires for a violation. Defense counsel’s retort was that the only black juror the prosecutor had a chance to strike, he struck. The circuit court then ruled:

'Well, in the event Mr. Long [prosecutor] explained it based on the answers to the questions, the Court would not find that she was subject to cause but there’s ample reason to exercise peremptory based on the responses to the questions she was asked and whether he chooses to explain that or not, the Court would have to find that to be the case, and in any event it wouldn’t matter.

The essence of Cox’s argument appears to be that a prima fade case was made under Batson when the prosecutor struck Ms. Caddell. Under the facts of this case, we disagree. This court has defined what must occur in order for a prima fade case to be made:

The strike’s opponent must present facts, at this initial step, to raise an inference of purposeful discrimination. According to the Batson decision, that is done by showing (1) that the strike’s opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. In deciding whether a prima facie case has been made, the trial court should consider all relevant circumstances. Should the trial court determine that a prima facie case has been made, the inquiry proceeds to Step Two. However, if the determination by the trial court is to the contrary, that ends the inquiry.

MacKintrush v. State, 334 Ark. 390, 398, 978 S.W.2d 293, 296 (1998).

Certainly, Ms. Caddell, as an African-American, was part of a racially identifiable group. However, the circumstances at this stage of the voir dire do not support a finding that the strike was part of a process or pattern designed to discriminate or that the strike was used to exclude jurors because of their race. The prosecutor had made no other strikes of African-Americans at this stage, and there were four more African-Americans left on the venire. The mere striking of one African-American venire person does not automatically equate to a prima facie case for a Batson violation. Cf. Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) (striking sole black person on venire may establish prima facie case; case did not say a prima facie case automatically was made).

We will reverse a circuit court’s Batson findings only when they are clearly against the preponderance of the evidence. Sanford v. State, supra; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). The circumstances of this case do not show that the circuit court clearly erred.

The record has been reviewed for other reversible error pursuant to Ark. Sup. Ct. R. 4-3 (h), and none has been found.

Affirmed.

Thornton, J„ dissents.

Ray Thornton, Justice,

dissenting. Although I agree with the majority opinion’s disposition of issues one through four, I cannot agree with the conclusions reached by the majority in appellant’s final point on appeal. Specifically, I cannot join the majority opinion in holding that the trial court did not err in finding that a prima facie case was not made, and consequently, that no race-neutral response was required before the court rejected appellant’s Batson challenge. See Batson v. Kentucky, 476 U.S. 79 (1986).

In Batson, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from using peremptory challenges to exclude African-American venire persons from service on a jury because of their race. Id. To test whether a peremptory strike should be disallowed, a three-step process was articulated in Purkett v. Elem, 514 U.S. 765 (1995):

Once the opponent of a peremptory challenge has made out a prima fade case of discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.

Id.

In Williams v. Groose, 77 F.3d 259 (8th Cir. 1996), the Eighth Circuit was even more succinct:

After a defendant makes a prima fade showing of racial discrimination in the Government’s use of a peremptory challenge, the Government must offer a race-neutral reason for the challenge.

Id. (citing Purkett, supra) (emphasis added).

We have adopted this principle in Arkansas, requiring that when a prima facie showing of discrimination has been made, the party seeking to use a peremptory challenge is required to state a race-neutral reason for the challenge. See MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). In MacKintrush, we established a procedure for following the Purkett modification to Batson. We held that after a prima facie case was presented, it was necessary to proceed to step two, where the maker of the peremptory motion was required to state a race-neutral reason for the strike, after which the trial judge proceeds to step three. MacKintrush, supra.

The issue in the present case is whether the peremptory challenge was wrongfully used to strike the only African-American venire person who would otherwise have been seated on the jury-panel, resulting in a trial by an all-white jury of an African-American defendant charged with the murder of a white woman. The trial court ruled that a prima facie case of discrimination had not been presented, and the trial court found that a race-neutral explanation was not required. The prosecution did not offer such an explanation. In my opinion, this was clearly a reversible error by the trial court.

We turn to our case law to determine what is required to make a prima facie showing of discrimination in the context of a Batson challenge. Among the cases defining what is required to make a prima facie showing of discrimination are:

1. Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988), where we stated:
Where the use of a peremptory challenge excludes from the jury all members of the defendant’s minority race, it is not necessary to show exclusion of more than one minority juror of the same race as the defendant to make a prima facie case of discriminatory use of a peremptory challenge.

Id. (Emphasis added.)

2. Hollamon v. State, 312 Ark. 48, 846 S.W.2d 663 (1993) provides:
Accordingly the defendant must first establish a prima facie case of purposeful discrimination which the appellant clearly did in this case when he pointed to a peremptory strike by the State dismissing the sole black person on the jury.

Id. (Emphasis added.)

3. Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996), where we stated:
This court has stated that a prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or serious disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire.

Id. (emphasis added). The word or indicates that one of these factors must be present to establish a prima facie case.

This court suggested in MacKintrush, supra, that a prima facie case could be made by showing:

(1) that the strike’s opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern.designed to discriminate, and (3) that the strike was used to exclude jurors because of their race.

MacKintrush, supra. This definition on which the majority relies does not incorporate the factors enunciated in Prowell, supra.

Although our research indicates that Mitchell, supra and Hollamon, supra have been limited by MacKintrush, I submit that Mitchell, Hollamon, and Prowell, supra are not overturned on this point by MacKintrush, supra. If MacKintrush is given the meaning that a prima facie case cannot be made unless a pattern is established, such an interpretation of our MacKintrush decision would fly in the face of the Supreme Court, which stated in Batson:

[A] defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case.

Id. (Emphasis supplied.)

The Supreme Court further states that “ ‘a consistent pattern of official racial discrimination’ is not ‘a necessary predicate to a violation of the Equal Protection Clause.’ ” Id. (citing Arlington Heights v. Metropolitan Housing Dep’t Corp., 429 U.S. 252 (1977)). The Supreme Court then concludes that “ ‘[a] single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions.’ ” Id. (citing Arlington Heights, supra).

The Supreme Court then continued:

These principles support our conclusion that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.

Batson, supra.

Further, the Supreme Court gave the requirements for establishing a prima facie case:
To establish such a case, the defendant must first show that he is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.

Id. (citation omitted). This requirement is met in the case before us, as appellant is an African-American.

Next, the Batson Court states:

Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.”

Id. (citing Avery v. Georgia, 345 U.S. 559 (1953)). Here, .there is no doubt that by use of a peremptory challenge, the prosecutor had the opportunity to engage in invidious discrimination.

Finally, the Supreme Court states:

[T]he defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Id.

With regard to this third factor, the fact that the only African-American venire person who was not excluded for other reasons from jury duty was stricken from the panel by the prosecutor’s peremptory challenge is sufficient to show that a prima facie case was made, and it follows that the prosecutor should have been required to state a race-neutral reason for the strike. Under the Supreme Court’s analysis in Batson, supra, as refined in Purkett, supra, a prima facie case can be established when only one juror is peremptorily struck because of race. Our state judiciary does not have authority to override the principles established by the Supreme Court, and consequently, our decisions in Mitchell, supra, Hollamon, supra, and ProweU, supra remain good law on the definition of a prima facie case.

The majority would now depart from this well-established standard for showing a prima facie case, and agree with the trial court’s ruling that no race-neutral explanation is required. Perhaps that is because the majority of this court is able to discern from the record that a race-neutral explanation might have been offered if the trial court had required it. How do we know that? Is it not equally possible that a prosecutor might explain that he thought he had a better chance of gaining a death sentence if all African-American venire persons were excluded from the jury? We will never know what explanation the prosecutor might have given, because he was not required to state his reasons for the strike. Surely, we are not charged with developing on appeal a race-neutral reason, and concluding that, because such a defensible reason might have been offered, there was no need to require the prosecutor to state a race-neutral explanation.

Because I cannot agree with that conclusion, I respectfully dissent.

       Cox’s abstract of the record in his brief contains the statement: “I guess we would have shot him.” We are governed by the record which has the personal pronoun “he.”

       In his motion to suppress before the circuit court, Cox appeared to contest the written statement prepared by Wynne police officers and signed by him as well. In his argument on appeal, the written summary is not specifically mentioned.

       At various times in the record Officer Speer is referred to as Officer Spear and Chief Rogers as Chief Rodgers.

       In his argument before the circuit court, Cox also wanted to introduce the fact of Collins’s conviction. He does not pursue this in his appeal.