author: Ray Thornton, Justice. Lavenski R. Smith, Justice,

text:
    ARKANSAS STATE POLICE COMMISSION v. Rhodis SMITH
    98-1096
    994 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered July 8, 1999

      Mark Pryor, Att’y Gen., by: Brian G. Brooks, Ass’t Att’y Gen., for appellant.

      McCullough Law Firm, by: R. S. McCullough, for appellee.
   Ray Thornton, Justice.

In this case, we review the decision of the appellant Arkansas State Police Commission (the Commission) to terminate an Arkansas State Police Officer, appellee Rhodis Smith, for violations of the Arkansas State Police’s Code of Conduct that requires all employees to obey all laws and prohibits unbecoming conduct that brings the employee or the department into disrespect or otherwise brings the department into disrepute. The Commission determined that appellee’s conduct in writing two hot checks and failing to make the checks good upon demand was a violation of the code, and imposed the sanction of termination from the state police.

On appeal the circuit court found that there was not substantial evidence to support the Commission’s decision to terminate Mr. Smith’s employment, and that the Commission’s decision to terminate appellee’s employment was arbitrary and capricious. The trial court reversed the Commission’s decision to terminate appellee and imposed the disciplinary action of a six-month suspension without pay. The trial court directed that appellee be reinstated following the suspension.

The Commission appeals, contending that there was substantial evidence to support the its decision, and that the decision was not arbitrary or capricious. We agree, and accordingly the trial court is reversed and the Commission is affirmed.

Standard of Review

The standard of review in this area of the law is well-developed. The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Board of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Board v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998); Files v. Arkansas State Highway and Transportation Department, 325 Ark. 291, 925 S.W.2d 404 (1996). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).

These standards are consistent with the provisions of the Administrative Procedure Act, Ark. Code Ann. §§ 25-12-201—25-15-214 (1996), which requires that the scope of appellate review under the Act be limited. According to the Act, it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether them is substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul of one of the other criteria set out in section 25-15-212(h). Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 941 (1998). We review the entire record in making this determination. Id. We also note that in reviewing the record, the evidence is given its strongest probative force in favor of the agency’s ruhng. Arkansas Health Servs. Agency v. Desiderata, Inc. 331 Ark. 144, 958 S.W.2d 7 (1998). The Administrative Procedure Act states:

(g) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court. The court shall, upon request, hear oral argument and receive written briefs.
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.

Ark. Code Ann. § 25-15-212.

Factual Background

Appellee Rhodis Smith was an officer with the Arkansas State Police. Appellee received a $60,000 loan from Nations Bank to purchase a $20,000 lot and construct a $40,000 home. He was to be his own general contractor on the project. Appellee opened a separate checking account for the construction loan funds. Following an inspection by a bank officer, the bank would deposit funds into appellee’s construction account to reimburse him for purchased materials or completed work.

Appellee wrote two checks on his construction checking account that were not covered by sufficient funds. The first check was written to Spec Building Material in the amount of $821.13 on April 10, 1997, for the purchase of roofing materials. The second check was written on June 13, 1997, to Three States Supply Company in the amount of $2,758.08, for the purchase of an air-conditioning system.

Appellee was notified on both occasions that his check had been returned for insufficient funds, but did not remedy the situation. The merchants sought relief under the Arkansas Hot Check Law. Following sworn complaints by both merchants, felony warrants were issued for his arrest. On two separate occasions appellee was taken into custody by the Sherwood Police Department. He was fingerprinted, photographed, and forced to post a bond for his release. Several months after the checks were dishonored, he paid the amount owed to the merchants to the registry of the Sherwood Municipal Court along with fines and court costs. Spec Building Material received payment for its goods on September 19, 1997, and Three States Supply Company on November 13, 1997.

Following the issuance of the felony warrants, the Arkansas State Police conducted an internal investigation into appellee’s actions. On August 13, 1997, appellee’s supervisor issued a formal complaint detailing his violations. The state police placed appellee on administrative leave on August 14, 1997. A second formal complaint was filed by his supervisor on September 3, 1997. A staff review recommended appellee’s termination. On October 1, 1997, John Bailey, Director of the Arkansas State Police, terminated appellee for violations of the Arkansas State Police Code of Conduct. Specifically, it was contended that he had violated General Order 102 § VII A, conduct unbecoming an officer, VII B, inappropriate personal conduct, and VII C, failure to conform to laws. These provisions state:

VII. Improper Conduct
A. Unbecoming conduct. Employees shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably on the Department. Conduct unbecoming an employee shall include that which brings the Department into disrespect or reflects discredit upon the employee as a member of the Department, or that which impairs the operations or efficiency of the Department or employee.
B. Personal conduct. Employees shall conduct their personal and business affairs in a manner which does not discredit or otherwise bring the department into disrepute or compromise the officer’s ability to perform his or her duties.
C. Conformance to laws. Employees shall obey all the laws of the United States and of the state and local jurisdiction in which the employees are present.
A conviction of the violation of any law shall be prima facie evidence of a violation of this section. Lack of criminal complaint, or an acquittal of a violation of law, shall not preclude internal administrative investigation and disciplinary action.

Arkansas State Police Code of Conduct, General Order 102 § VII A, B, C.

On December 3, 1997, the Arkansas State Police Commission held a hearing to consider appellee’s termination. Stacy Lisenby, a former employee from Spec Building Materials, testified at that hearing that he notified appellee a few days after his April 10, 1997, check in the amount of $821.13 had been returned for insufficient funds. Lisenby also testified that he knew appellee was a police officer because he came into the business in a “swat team uniform.” Lisenby further testified that appellee assured him that he would return the following Tuesday to take care of the bounced check but that he never returned to cover the check. Lisenby testified that he then called appellee five or six times to remedy the situation and appellee never returned his calls. Lisenby also testified that after waiting two months he was forced to turn the check over to the Sherwood Police Department because he was getting no “feed-back” from appellee. Finally, Lisenby testified that he “probably” waited longer than was the normal practice of the company before reporting the bounced check to the police department because appellee was a state trooper and “not the average homeowner.” A warrant for appellee’s arrest was issued on July 22, 1997, and served on August 11, 1997.

On June 13, 1997, appellee wrote a second check in the amount of $2,758.08, to Three States Supply as payment for an air-conditioner. With regard to the check, Hugh Bosworth, the general manger of Three States Supply, testified that it was not the practice of the company to take personal checks but, because appellee was a state policeman, “we bent the rules.” Bosworth further testified that his assistant contacted appellee to inform him that his check had been returned for insufficient funds. Appellee came to Three States Supply and told Bosworth’s assistant that there must have been a problem with the bank. Bosworth also testified that his assistant tried without success to contact an individual at the bank who appellee said could resolve the problem. The assistant then tried to contact appellee to no avail. Bosworth testified that the company sent appellee a ten-day demand letter on July 28, 1997, pursuant to the Arkansas Hot Check Law, prior to filing a formal complaint with the Sherwood Police Department. Appellee did not respond. A complaint was then filed, and a second felony arrest warrant was issued in late August and appellee was served on September 3, 1997.

Captain John Chambers, from the Arkansas State Police, testified that he was notified by the Sherwood Police Department in mid-August that a felony arrest warrant was to be served on appellee. Chambers next testified that he called appellee into his office and put him on administrative leave for violations of police policies. Chambers also testified that he initiated an investigation into appellee’s situation. Additionally, Chambers testified that during an interview with appellee to discuss the check written to Spec Building Material, appellee assured him that “there [were] no more checks out.” Chambers then testified that a “few days later” the Sherwood Police Department notified him that they had another felony warrant for appellee’s arrest based on a second hot check. Finally, Chambers testified that appellee’s actions violated the policies of the Arkansas State Police and had “damaged our reputation, and damaged Corporal Smith’s credibility and his reputation.”

Appellee also testified at the hearing. He stated that he received notice that at least one of the checks had been returned to the merchant for insufficient funds. Appellee further testified that when he was notified that his check had been returned to Spec Building Material he went to the company and assured them that he would return to cover the check but that he had never returned after that occasion. Appellee stated that he did not know how much money was in the construction account at the time he wrote the checks. He admitted that he received numerous calls at work from the merchants to whom he had written the checks. Finally, appellee testified that when he was taken into custody at the Sherwood Police Department he was fingerprinted and photographed, and that he borrowed money to post his bond for release.

Substantial Evidence

In its first point on appeal the Commission argues that substantial evidence was present to support appellee’s termination. Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. McQuay, supra; Bohannon v. Arkansas Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995). The challenging party has the burden of proving an absence of substantial evidence. To establish an absence of substantial evidence to support the decision the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983). The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. McQuay, supra.

We have reviewed the evidence presented to support the Commission’s findings. The Commission found that appellee had violated the Arkansas State Police’s Code of Conduct. Specifically, the Commission affirmed John Bailey’s decision to terminate appellee’s employment based on his violations of General Order 102 § VII A, conduct unbecoming an officer; VII B, inappropriate personal conduct; and VII C, failure to conform to laws. After reviewing the evidence, it appears that valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support the conclusion that appellee’s conduct was in violation of provisions of the Arkansas State Police’s Code of Conduct was present in this case. We note again that our role on appeal is to determine whether the agency’s decision is supported by substantial evidence and is not arbitrary or capricious. We must affirm an agency’s decision if there is substantial evidence to support it. Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). Accordingly, we hold that the decision of the Commission was supported by substantial evidence and that the decision of the Commission must be affirmed and the circuit court’s findings to the contrary must be reversed on this point.

Arbitrary and Capricious

In appellant’s final point on appeal it is contended that the Commission’s decision was not arbitrary and capricious. Administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. Partlow, supra. To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. Id. We have stated that the requirement that administrative action not be arbitrary or capricious is less demanding than the requirement that it be supported by substantial evidence. Beverly Enter.-Ark., Inc. v. Arkansas Health Servs., 308 Ark. 221, 824 S.W.2d 363 (1992). An action is not arbitrary simply because the reviewing court would act differently. McQuay, supra. Finally, we have held that once substantial evidence is found, it automatically follows that a decision cannot be classified as unreasonable or arbitrary. Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992). We have upheld the termination of Arkansas State Police officers in several cases. First, in Partlow, supra., we held that it was not error for the Arkansas State Police Commission to dismiss an officer who had violated a departmental rule. In that case, Partlow, an Arkansas State Police officer, had stored a 1974 Yamaha motorcycle, which was property seized by the police, in a building he was privately leasing. After retaining the property for approximately eight months, Partlow inserted his name onto the title and had the property licensed in his name. The Arkansas State Police conducted an investigation into Partlow’s usage of the motorcycle and found that he had violated rule 11 of the Arkansas State Police Rules and Regulations. Partlow was then dismissed from his job. We held that because Partlow admitted to engaging in the conduct charged the Commission’s decision to terminate Partlow was not arbitrary or capricious. Id.

Next, in Tuck v. Arkansas State Police Commission, 282 Ark. 39, 665 S.W.2d 276 (1984), we affirmed the Arkansas State Police Commission’s decision to terminate an officer. Tuck, an Arkansas State Police officer, was charged with violations of department policy by receiving compensation from the submission of a false invoice, installing unauthorized equipment on his patrol car and abusing his position by asking troopers under his command to “fix” tickets. The Commission dismissed Tuck. Id. Although we did not expressly use “arbitrary and capricious” language in the Tuck case, our reasoning was similar to that used in Partlow. We held that we would not disturb the decision of the Commission as to the appropriate punishment to impose in the case because there was no dispute among the fact-finders that the evidence substantiated the charged offenses. Id.

Here, appellee admitted that he wrote the checks to the merchants without knowing how much money was in his account at the time, that he received notice of the returned checks, and that he failed to rectify the wrongs suffered by the merchants without judicial intervention. Thus, the actions taken by the Commission were reasoned and based on the facts and circumstances of the case. Therefore, we hold that the Commission’s actions were not arbitrary or capricious.

Because there was substantial evidence to support the Commission’s decision, and it is not arbitrary or capricious, the Commission’s actions should be affirmed, and the case is reversed and remanded to the trial court for disposition in accordance with this opinion.

Reversed and remanded.

Arnold, C.J., and Smith, J., dissenting.

Lavenski R. Smith, Justice,

dissenting. I concur in the majority’s holding that substantial evidence supports the Commission’s finding that appellee violated the Arkansas State Police’s Code of Conduct. I applaud the Commission for setting and maintaining high standards of integrity for those given the responsibility and privilege to enforce our state’s laws. However, I cannot agree that the facts or our precedents justify termination of an officer with nineteen years and ten months of unblemished service.

Contrary to appellee’s argument, our review is of the administrative agency decision not the circuit court’s ruling. Our law is well settled, we affirm the agency decision if it is supported by substantial evidence and is not arbitrary, capricious, or characterized by an abuse of discretion. However, that does not mean we rubber-stamp agency decisions. After this decision, though, it is difficult to imagine a termination we would not affirm.

Termination is a harsh but sometimes necessary punishment for misconduct. It is not warranted here. This case is markedly different from either Partlow v. State Police Commission, 271 Ark. 351, 609 S.W.2d 23 (1980) or Tuck v. Arkansas State Police Commission, 282 Ark 39, 665 S.W.2d 276 (1984), where we have previously upheld terminations of state police officers. In both cases the misconduct justifying termination involved overt actions of misuse of state property and authority. Partlow literally stole a confiscated motorcycle. Tuck committed multiple separate violations all involving on-duty activity and demonstrating disregard for department policy including influencing officers under his authority to not properly enforce the law by “fixing” tickets.

In the instant case, officer Smith was negligent in the handling of his personal finances by not ensuring an adequate balance in a checking account into which his bank was depositing installments on his construction loan. Criminal charges were filed but subsequently dismissed. Smith paid the checks and associated fines. It reflected negatively upon him personally and upon the department. But, no state property or power were implicated by his actions. Surely, demotion or suspension would have sufficed to adequately punish the rule violation and send an appropriate message to other officers and the citizens of this state. But to end the long career of an otherwise competent officer on these facts is totally unwarranted and not supported by substantial evidence. I therefore respectfully dissent.


source: Caselaw Access Project

author: Lavenski R. Smith, Justice.

license: Public Domain

text:
    Cleo RAYNOR and Jerome Raynor v. Dr. James KYSER
    99-25
    993 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered July 8, 1999

      Lamar Porter, for appellants.

      Friday, Eldredge & Clark, by: Laura Hensley Smith, for appellee.
   Lavenski R. Smith, Justice.

This is a medical malpractice case. Appellant, Cleo Raynor appeals the summary judgment entered against her by the Pulaski County Circuit Court on the basis of Arkansas’s two-year statute of limitations on medical malpractice claims. Raynor contends the statute was tolled by operation of the “continuous treatment” doctrine. Appellee, Dr. James Kyser, responds that the doctrine doesn’t apply to the instant facts. We agree and affirm.

Raynor first sought and received medical care from Dr. Kyser in January of 1985. Dr. Kyser diagnosed her condition as nasal polyps, chronic sinusitis, which he surgically removed on January 15, 1985. The postoperative pathology revealed no malignancy.

In succeeding years, Raynor returned to Kyser for removal of polyps and papillomas in August 1988, and in July 1990. According to Raynor, Kyser told her she would need to see him indefinitely. Raynor made her last follow-up visit for the 1990 surgery in March of 1991. At that time, Dr. Kyser requested she return in six months. Dr. Kyser’s office sent courtesy letters reminding Raynor about her follow-up on October 4, 1991, and February 8, 1993. On October 18, 1994, Raynor returned to Dr. Kyser’s office. Kyser scheduled her for surgery one week later. The preoperative diagnosis was chronic obstructive rhinosinusitis. During surgery, among other things, multiple polyps were removed. After surgery Raynor returned for postoperative follow-up in November 1994. Dr. Kyser then told her to return in six months.

Raynor returned sooner than instructed at the request of her internist, Dr. Tommy Love, who she had seen with complaints of blurred vision. In March 1995, Dr. Kyser ordered an MRI for Raynor. The MRI revealed a large inverted papilloma in the maxillary sinus cavity. Dr. Kyser referred Raynor to Dr. James Suen who ordered a CT scan and then performed surgery excising a malignant inverted papilloma.

Raynor notified Kyser through counsel in June 1996 that she intended to make a malpractice claim against Kyser. Raynor, however, did not file suit until February 2, 1997. Kyser responded by answer and raised the affirmative defense of the statute of limitations. Kyser filed a motion for summary judgment in July 1997. Raynor filed a timely response asserting the “continuous treatment exception” to the two-year statute of limitations in medical negligence actions. Following oral arguments, the trial court granted Kyser summary judgment on November 3, 1997, due to lack of contact between Kyser and Raynor between March 1991 and October 1994. The court also found that the statutory period had run for the treatment received in the fall of 1994 in that Raynor made no allegations of negligence beyond the November 1994 visit. .Raynor hied notice of appeal on November 3, 1997. On December 23, 1998, the court of appeals affirmed the trial court’s summary-judgment order on the same grounds stated in the trial court’s order. We granted appellant’s petition for review.

Standard of Review

On a petition for review, we consider the case as if it were originally filed with this court. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). The law is well settled 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. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). “Once the 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 review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the 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. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997).” Wallace v. Broyles, 331 Ark. 58, 66, 961 S.W.2d 712 (1998).

The gravamen of this appeal concerns the application of Arkansas’s medical practice statute of limitation and whether, under our case law and with the instant facts, that statute is tolled by operation of the “continuous-treatment doctrine.” The relevant limitations statute, Ark. Code Ann. § 16-114-203, provides in pertinent part as foEows:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier. . . .

In the instant case, appellant concedes that unless the continuous-treatment doctrine tolls the limitations statute, her medical malpractice claim will be barred. Appellant contends that the doctrine enables her to have a valid action for negligent treatment covering the entire twelve-year doctor-patient relationship. In essence, appellant would have us hold that the continuous-treatment doctrine would apply to toll the statute coextensively with the physician-patient relationship, even if no continuing treatment occurs. We decline to do so.

We first applied the doctrine in Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). In Lane, plaintiff ex-wife sued her ex-husband, who was also her physician, for an eighteen-year course of narcotic-injection treatment for migraines. The treatment left her with fibrosis at the injection sites, loss of motion in her arm as a result of the injections, extensive scarring, depression and drug addiction. In Lane, we cited a medical malpractice treatise for a statement of the doctrine:

[I]f the treatment by the doctor is a continuing course and the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.

Lane, 295 Ark. at 673-674 (quoting ID. Louisell and H. Williams, Medical Malpractice § 13.08 (1982). Later in the opinion we also stated, “the continuous treatment doctrine becomes relevant when the medical negligence consists of a series of negligent acts, or a continuing course of improper treatment.” Lane, supra, at 675.

We have applied the doctrine to toll the operation of the limitations statute in only one other case, Taylor v. Philips, 304 Ark. 285, 801 S.W.2d 303 (1990). In Taylor, the patient suffered a broken jaw. The treatment was ineffectual and harmful, apparently at least in part due to improper use of a brace over the course of treatment. On September 8, 1987, Dr. Phillips performed surgery on Taylor’s jaw and fitted the jaw with a brace screwed into the bones. The brace remained in place about three months at which time, on December 8, 1987, another physician observed that the bones were not healing properly. The brace was modified, and additional surgery had to be performed. Taylor subsequently sued Dr. Phillips for medical malpractice on October 16, 1989. Phillips defended citing the two-year statute of limitations, contending that the statute barred the action because it was filed more than two years after the surgery. We held that the patient, Taylor, had been under a continuing course of treatment by Phillips, and the statute did not begin to run until Taylor’s treatment terminated on December 9, 1987. Taylor’s October 16, 1989, filing was therefore within the limitations period and not barred. We have not expanded the doctrine since its adoption and specifically found it inapplicable to cases involving single or isolated acts of negligence.

The instant facts are distinguishable from Lane and Taylor. In both cases where we have applied the continuous treatment theory to toll the statute, the patient has received active, ongoing medical care and attention beyond the time of a specific negligent act or series of acts — that is, something more than the mere continuation of the physician-patient relationship. In the case at bar, active treatment of an existing patient condition ceased following Raynor’s postoperative visit in November of 1994. Dr. Kyser’s act of setting a future office visit six months later did not constitute the requisite continuous treatment needed to toll the statute. We have stated that one policy rationale for the continuous-treatment doctrine is to prevent the patient from having to interrupt the physician’s treatment to bring suit. Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993). Where there is no more physician-patient interaction occurring other than the scheduling of future visits, the policy is satisfied as there is no interruption of “treatment for the malady which was the object of the treatment. ...” Tullock, 311 at 570. Were we to hold otherwise, we would no doubt come perilously close to embracing continuous-tort theory, which we have heretofore consistently rejected.

It is undisputed that appellant had no contact with Kyser for a three-and-one-half-year period from March 1991 until the fall of 1994. The trial court found that due to that lack of contact, claims for any act or acts of negligence between January 1985 and March 1991 were barred by the applicable two-year statute of limitations and granted summary judgment. We hold the trial court’s ruling to be correct as to claims arising during this period and affirm.

We also affirm the trial court’s ruling that the statute of limitations barred appellant’s suit for medical malpractice attributable to Kyser’s alleged negligence in the fall of 1994 where the action was not filed until February 1997. The facts simply do not indicate that Kyser engaged in active treatment of Raynor beyond the postoperative visit in November 1994 for the same malady. Although she did visit Kyser in March 1995 at the suggestion of another physician, we hold that visit to not be a part of a continuous treatment for the same malady. Accordingly, we affirm.

       In Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W. 2d 713 (1996), appellant alleged negligence in induction of anesthesia. Appellant’s brother aspirated into his lungs and died ten days later while being transported to another hospital. We stated, “[T]hat doctrine [continuous treatment] was not designed to extend the statute of limitations period in cases where only a single, isolated act of malpractice or negligence is alleged.” Pastchol, 326 Ark. at 145. The only contact with the brother had been the induction of anesthesia, and there was no allegation of negligence in the subsequent care. Likewise, in Wright v. Sharma, 330 Ark. 704, 956 S.W. 2d 191 (1997), we declined to apply the doctrine where a single negligent act of an unnecessary surgery was alleged. See also, Hobbs v. Naples, 993 F.2d 173 (8,h Cir. 1993) and Roberts v. Francis, 128 F.3d 647 (8,h Cir. 1997).

       We declined to apply die doctrine in Tullock but did make important statements regarding its use.

        See Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986); Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); and Williams v. Edmonson, 257 Ark. 837, 520 S.W.2d 260 (1975).


author: Per Curiam.

text:
    IN RE: Robert Fuller MEURER (Arkansas Bar ID # 85108)
    99-427
    993 S.W.2d 917
    Supreme Court of Arkansas
    Opinion delivered July 8, 1999
   Per Curiam.

The procedural background of this matter is set out in In Re: Meurer, 337 Ark. 608, 990 S.W.2d 552 (1999). Mr. Meurer appeared before this court on June 24, 1999, to show cause why he should not be held in contempt for failing to comply with the terms of the February 12, 1999 order of the Supreme Court Committee on Professional Conduct. Mr. Meurer entered a plea of guilty to this court, and was ordered to submit an affidavit in mitigation by June 28, 1999. Mr. Meurer tendered his affidavit on June 29, 1999. The Committee’s response, filed July 2, 1999, raised questions concerning the veracity of the information supplied by Mr. Meurer.

Given the circumstances of this case, we hereby appoint a special master, The Flonorable Perry Whitmore, to conduct a hearing on the matter. After the hearing, we direct the master to make findings of fact and file them with this court on or before September 8, 1999. Upon receipt of the master’s findings, we will render a decision on the matter.


text:
    Stacey Eugene JOHNSON v. STATE of Arkansas
    CR 98-743
    993 S.W.2d 917
    Supreme Court of Arkansas
    Opinion delivered July 8, 1999

      David Lewis Clark, for appellant.
    No response.
   Per Curiam.

Appellant Stacey Eugene Johnson was convicted of capital murder and sentenced to death by lethal injection in a judgment entered November 24, 1997. The procedural background of this case is set out in Johnson v. State, 337 Ark. 609, 990 S.W.2d 553 (1999). Counsel for Appellant, David Lewis Clark, appeared for a hearing before this court on July 1, 1999, to show cause why he should not be held in contempt for failing to file Appellant’s brief as previously ordered by this court. Mr. Clark entered a guilty plea and stated that he had no excuse for failing to timely file the brief. As of the date of this hearing, no brief has been filed by Mr. Clark.

We hold that Mr. Clark is in contempt for failing to timely file Appellant’s brief, and we fine him $250. Mr. Clark is removed as counsel for Appellant, and a copy of this opinion will be forwarded to the Committee on Professional Conduct. We hereby appoint Didi Sailings to represent Appellant in this matter, and we direct the Clerk of this court to set a new briefing schedule.


text:
    Andrew SASSER v. STATE of Arkansas
    CR 97-1246
    993 S.W.2d 901
    Supreme Court of Arkansas
    Opinion delivered July 8, 1999

      Deborah R. Sailings, for appellant.

      Winston Bryant, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., and James Gowen, Law Student No. 301 Admitted to Practice Pursuant to Rule XV(E)(l)(b) of the Rules Governing Admission to the Bar of the Supreme Court and Under the Supervision of Kelly K. Hill, Dep. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Andrew Sasser, was convicted of capital felony murder and sentenced to die by lethal injection. We affirmed the conviction and sentence in Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). Sasser subsequently filed a timely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. In that petition, Sasser raised several claims of ineffective assistance of counsel. The Circuit Court, after a hearing, entered written findings of fact and conclusions of law in which it denied relief. Sasser now appeals from that order. We affirm.

The facts giving rise to Sasser’s conviction were set out in detail in our opinion in the direct appeal. Because the resolution of one of Sasser’s ineffective-assistance-of-counsel claims requires our determination of the sufficiency of the evidence to support one of the felonies underlying the capital felony murder charge, we will now reiterate the background facts.

The state charged Sasser with capital felony murder for causing the death of Ms. Jo Ann Kennedy, on or about July 12, 1993, in the course of or in immediate flight from his commission or attempt to commit the victim’s rape or kidnapping under circumstances manifesting extreme indifference to the value of human life. At the time of her death, the victim was working alone as the store clerk at the E-Z Mart in Garland. The autopsy report showed the victim died of multiple stab and cutting wounds and blunt-force head injuries, and that no anal or vaginal injury or any spermatozoa were present.

Following voir dire and immediately preceding the trial’s commencement, the State announced, in camera, that it intended to offer evidence of prior crimes committed by Sasser in 1988 at an E-Z Mart in Lewisville against its store clerk, Ms. Jackie Carter, for which he was convicted of second-degree battery, kidnapping and rape. The State relied upon Rule 404(b) and this court’s decision reported as Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987), and offered the evidence to prove appellant’s modus operandi and intent. The State enumerated several points of similarity between the circumstances of the present crime and the 1988 crimes. Appellant objected, arguing “one previous crime does not a pattern make” and that the evidence had no probative value, only prejudicial effect. The trial court held Thrash was controlling, found the proposed testimony to be “more (probative) than prejudicial,” and ruled it admissible. We affirmed this ruling. Sasser v. State, 321 Ark. at 447.

At the jury trial, Sasser stipulated that he caused the death of the victim while in the possession of and while driving his brother’s pickup truck. Other stipulated facts included: Sasser stopped at the E-Z Mart in Garland City two or three times to buy chips and to use the telephone between the hours of 3:00 p.m. on July 11, 1993 and approximately 12:00 a.m. on July 12, 1993; the victim was discovered nude from the waist down; and the pants and panties found in the E-Z Mart’s men’s bathroom were hers.

The State’s first witness at trial, Jeanice Pree, testified she and her mother, Gloria Jean Williams, lived across the street from the Garland City E-Z Mart. Pree testified she had an unobstructed view of the store. Pree testified she also worked at the E-Z Mart and believed its front door was locked at 12:00 midnight and thereafter customers were required to use a drive-through window. Pree testified she was sitting on her couch watching television when she looked out her window, saw the victim and a man behind the store counter and assumed he was a friend of the victim. Pree testified she looked back and saw the victim and the man coming to the store’s front door. Pree testified she could tell the victim was being forced to come out because it looked like her hands were behind her back. Pree testified she telephoned 911. The police dispatcher testified he received Pree’s 911 telephone call at approximately 12:46 a.m. on July 12, 1993, and that she stated “there was a woman that she believed was being killed at the E-Z Mart, being drug through the window.”

Williams testified she watched the E-Z Mart from the window in her house while her daughter (Pree) telephoned 911. Williams testified she saw a truck leave the store, and then the victim “came around from the side of the E-Z Mart. She reached for the door and she just collapsed, right there.”

Miller County Sheriffs Deputy Jim Nicholas testified the victim was found lying just outside the E-Z Mart door on the sidewalk, and appeared to be dead. Nicholas testified the victim was nude from the waist down, and what appeared to be her panties and pants were located in the men’s restroom of the store. Nicholas testified one of the victim’s shoes was in the front aisle and one behind the counter, and a large wad of hair was found behind the cash register near the drive-through window. Nicholas testified blood spatters were observed at the drive-through window, on the store’s “outside aisles,” counter, and on the men’s bathroom wall. Nicholas testified the drive-through window was open. Numerous items of physical evidence and photographs were introduced into evidence through the testimony of Nicholas and Miller County Sheriffs Department Investigator Toby Giles, including a photograph of the drive-through window and cash register area showing two plastic containers of nachos.

Arkansas State Police Investigator Robert Neal testified he and Miller County Sheriff H.L. Phillips interrogated Sasser at the Lafayette County Sheriffs Office in Lewisville for approximately two hours beginning around 7:45 p.m., on July 12, 1993. Sasser’s tape recorded statement and a transcript of the same were introduced at trial and provided as follows. Sasser stated he drove up to the window at the Garland City E-Z Mart and ordered nachos from the victim. He described the victim as a “lady . . . [who] had an attitude” and was angry because someone else had ordered nachos, then failed to pick up the order. Sasser stated the victim tried to sell him two orders of nachos, but he declined. He stated they argued and the victim slammed the drive-through window on his hand. Sasser stated he jerked the window open whereupon the victim cut him with an knife-like object with a blade. Sasser stated he grabbed the victim and she jerked him through the drive-through window. He stated they scuffled, moving from the drive-through window area, down the counter area, out into the store’s interior, back to the store office at the rear of the store, and up to the potato chip rack at the front of the store. Sasser stated the victim opened the store’s front door, they exited the store and the victim followed him to his pickup truck, still fighting. Sasser stated he entered the vehicle and left.

Sasser stated he did not recall going into the E-Z Mart’s restrooms but that he “had to go back there.” He stated the victim repeatedly hit him with her fists while they scuffled. Sasser stated he wrested the victim’s knife-like object from her and used it to hit her, finally dropping the object near the pickup truck. Sasser stated he did not know why the victim’s clothes were removed. When asked whether he did not remove the victim’s clothes or did not remember doing so, he replied: “No sir.” Sasser stated he did not try to rape the victim or to rob her.

The State’s final witness, Ms. Carter, testified appellant attacked and raped her on April 22, 1988 at the E-Z Mart Store in Lewisville. Carter testified she was the only employee on duty when appellant entered the store at approximately 1:00 a.m. and purchased cigarettes, returned fifteen minutes later and purchased a soft drink, then returned five minutes later, asked to use the telephone and stated he had had a wreck on his motorcycle. Carter testified appellant then stood in the store after stating he was waiting on his wife to pick him up. Carter testified that, at approximately 1:35 a.m., a truck drove up and appellant went outside to talk to its occupants. Carter testified she moved from behind the cash register and began putting up items in the freezer when appellant approached her from behind and hit her on the back of the head with a soft-drink bottle. Carter testified she and appellant struggled and he continued to hit her, then forced her to a utility/bathroom located at the back of the store. Carter testified another man approached and appellant decided to take her out of the store. Carter testified appellant forced her out of the store, picked up his bicycle, and pushed Carter and the bicycle into an alley. Carter testified that, when the other man drove by, appellant forced her across the street, told her to pull down her clothes, pulled down his own clothes, and raped her. Carter testified appellant then told her he should not have done it and should kill her, whereupon she begged him not to and agreed to say a truck had dropped her off and appellant had found her. Carter testified appellant forced her back to the store where the police were waiting. Carter testified that, when she gained the opportunity to speak privately to a policeman, she identified appellant as her attacker.

Failure to Object to Erroneous Jury Instructions

For his first argument in this postconviction appeal, Sasser argues that the trial court erred when it submitted erroneous instructions for attempted kidnapping and attempted rape to the jury. Sasser contends that we can review this trial error for the first time under Rule 37 because the submission of an instruction that omits an essential element of the crime constitutes “structural error.” Alternatively, Sasser also argues that his trial counsel was ineffective for failing to object to the erroneous instructions.

The abstract of the trial indicates that the jury was instructed to weigh Sasser’s guilt according to instructions for capital felony murder and first degree felony murder. As indicated above, the jury was instructed that, in order to convict Sasser of either degree of felony murder, they had to find that he committed one of four possible underlying felonies: kidnapping, attempted kidnapping, rape, or attempted rape. The trial court, with no objection from Sasser’s attorney, submitted erroneous jury instructions for the crimes of attempted kidnapping and attempted rape. Specifically, the jury was instructed that the attempt crime was completed when Sasser formed the mental state to commit the rape or kidnapping. The actus reus, or the portion of the instruction that required the jury to find that Sasser also took a “substantial step” toward completing the crime, was omitted from all of the instructions for the attempt felonies.

For the first part of his argument, Sasser contends that the erroneous instructions, because they omit an essential element of the attempt crimes, constitute “structural” trial error, and as such, can be reviewed for the first time under Rule 37. Sasser argues that the trial error is structural because the submission of the erroneous instructions affected his fundamental right to a trial by jury, or, as the Supreme Court enunciated in In re Winship, 397 U.S. 358 (1970), “the right of an accused to not be convicted except upon proof beyond a reasonable doubt of each element of the crime.”

We have previously held that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). Rule 37 is a postconviction remedy, and as such, does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). We have made an exception, however, for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996). In Collins, for example, we held that the right to trial by a twelve-member jury is a fundamental right that fell with in the exception. When we review a “fundamental” or “structural” error either on direct appeal or through the exception just explained, the fundamental nature of the error precludes application of the “harmless-error” analysis.

To support his contention that the omission of the actus reus element from the attempt instructions was structural error, Sasser draws an analogy between his case and Sullivan v. Louisiana, 508 U.S. 275, (1993), in which the Supreme Court held that an erroneous “reasonable doubt” instruction was structural error, and therefore not subject to the “harmless-error” analysis. In Sullivan, the Court noted that in a case where the jury convicts according to an erroneous instruction about the State’s burden of proof, there has been no actual finding of guilt as required by the Sixth Amendment. The harmless-error standard of review could not be applied because to do so would force the appellate court, inappropriately, to speculate about what a jury would have done had it been properly instructed. Sullivan v. Louisiana, 508 U.S. at 280.

The omission of a single element of a jury instruction in a case where the jury is instructed on multiple offenses, however, differs from the situation in Sullivan v. Louisiana, in which the error affected the basic burden of proof in a criminal case, and therefore, was more insidious than the error in this case. In Sullivan, the harmless-error analysis could not be applied because the erroneous burden-of-proof instruction, an instruction upon which the proper application of all other instructions depends, rendered a reliable finding of guilt impossible. In this case, the jury was properly instructed according to the complete offense for kidnapping, and, therefore, it is still possible that there was a refiable finding of guilt on capital felony murder in this case.

The distinction between the error that occurred in this case and the error in Sullivan v. Louisiana has recently been recognized by the Supreme Court in Neder v. United States, 527 U.S. (Slip Opinion, June 10, 1999), a case whose holding is directly on point for the case at bar. See also California v. Roy, 519 U.S. 2 (1996). In Neder, the Supreme Court held that the omission of an element from a jury instruction in a criminal trial is not “structural error” and therefore, can be subject to the harmless-error standard of review. We have also previously observed that this is an error that is subject to the harmless-error standard of review. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996). Accordingly, the omission of the actus reus element from the instructions for attempted rape and attempted kidnapping is not “structural error” and, therefore, an argument assigning error to the omission cannot be considered for the first time in a Rule 37 proceeding.

Sasser makes the alternative argument, however, that his trial counsel was ineffective for failing to object to the erroneous instructions. We measure the effectiveness of trial counsel according to the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). According to that standard, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered.

We conclude that the Circuit Court was not clearly erroneous when it denied relief on the ineffective-assistance-of-counsel claim. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998). While we have little doubt that Sasser’s trial counsel rendered deficient performance when he failed to object to the omission of the actus reus element in the attempt felonies, we find that Sasser has failed to fulfill the prejudice prong of the Strickland analysis, or more specifically, that there is a “reasonable probability” that the outcome of his trial would have been different if his attorney had objected to the erroneous instructions. We reach this finding because the jury was properly instructed on the complete offense of kidnapping, which, as we will soon explain, is supported by ample evidence in the record. Additionally, we find that if Sasser’s attorney had objected and the actus reus was included in the attempt instructions, there was sufficient evidence to support attempted rape and attempted kidnapping as the underlying felonies.

Sasser argues, however, that we cannot determine if he has satisfied the prejudice prong of the Strickland analysis by evaluating the sufficiency of the evidence to support either the complete offense of kidnapping or the attempt felonies, if they had been properly submitted to the jury, because of the analysis we applied in Hall v. State, supra. Sasser contends that we can only determine prejudice according to the harmless-error analysis that we explained in Hall. That is, that the State can demonstrate that the submission of an erroneous instruction was harmless by showing that the jury was not demonstrably misled because the jury rejected the theory of the erroneous instruction. We further explained that the State can also show that the erroneous instruction was harmless because it was cured by another instruction. Hall v. State, 326 Ark. at 323. Sasser suggests that if we go beyond that harmless-error analysis, we would impermissibly substitute our judgment in place of the jury on the sufficiency of the evidence.

As an initial matter, we must take this opportunity to draw a clear distinction between the analysis that takes place on direct appeal when an erroneous instruction is submitted to the jury, and the analysis that we apply to evaluate an ineffective-assistance-of-counsel claim. As explained above, the “harmless-error” standard of review is applied on direct appeal.

The prejudice prong of an ineffective-assistance-of-counsel claim, however, involves a different inquiry. There, we must determine whether but-for counsel’s error, there is a “reasonable probability” that the outcome of the trial would be different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. While we may resolve this issue by using the harmless-error standards enunciated above, our analysis is not limited to those criteria. We may also evaluate other factors to determine if there is a “reasonable probability” that the outcome of the trial would be different.

Accordingly, we must determine if Sasser would have been acquitted if, pursuant to the objection, the actus reus element would have been included in the attempt instructions, or however unlikely, the attempt instructions were pulled as alternatives to give to the jury. We conclude that there is no reasonable probability that Sasser would have been acquitted of capital felony murder.

In this case, the jury was given the following instruction with regard to kidnapping:

To prove kidnapping, the State must prove beyond a reasonable doubt first, that Andrew Sasser did, without the consent of Joanne Kennedy, restrain her so as to interfere substantially with her liberty, and second, that Andrew Sasser restrained Joanne Kennedy with the purpose of facilitating the commission of murder or the flight thereafter, or inflicting physical injury upon her or engaging in sexual intercourse.

The jury was also instructed as follows regarding the offense of rape:

To prove rape the State must prove beyond a reasonable doubt first, that Andrew Sasser engaged in sexual intercourse with Joanne Kennedy and second, that he did so by forcible compulsion.

Furthermore, AMCI 2d 501, the model jury instruction for criminal attempt that Sasser alleges should have been given to the jury, provides that to prove an attempt, the State must prove beyond a reasonable doubt:

First: That the defendant intended to commit the offense of (rape or kidnapping);
Second: That the defendant purposely engaged in conduct that was a substantial step in a course of conduct intended to culminate in the commission of (rape or kidnapping);
Third: That defendant’s conduct was strongly corroborative of the criminal purpose.

As we indicated earlier, we conclude that there is ample evidence in the record to support a finding of either kidnapping, attempted kidnapping, or attempted rape as the underlying felony for the capital murder charge. Through the testimony of eyewitnesses and the investigating officers, the State introduced evidence that indicated that Sasser forced his way into the convenience store through the drive through window, engaged in an extensive struggle with Ms. Kennedy that led to the back of the store and into the men’s bathroom, where her slacks and panties were found. Sasser then lead Ms. Kennedy, with her arms restrained behind her and nude from the waist down, through the front door of the store, and took her to the area where his vehicle was parked. Sasser drove away and Ms. Kennedy walked to the front of the store, fell to the ground, and died as the result of several stab wounds. With this evidence in the record, there is no reasonable probability that a proper objection from Sasser’s attorney would have changed the outcome of the trial.

Failure to Object to Prosecutor’s Comments

Sasser next argues that he is entitled to postconviction relief because his trial counsel failed to object to several comments made by the prosecutor during his arguments to the jury during both the guilt and penalty phases of the trial. He also suggests that postconviction relief would be warranted because the trial court failed, on its own motion, to admonish the jury or declare a mistrial.

Sasser alleges that the prosecutor made several improper comments in his closing argument during the guilt phase. Sasser first argues that the prosecutor improperly indicated that if he thought that Sasser committed first-degree murder rather than capital murder, he “would have considered doing something less.” According to Sasser, that remark expressed the prosecutor’s personal opinion about the crime for which Sasser should be convicted.

Sasser next argues that the prosecutor improperly argued, apparently in response to the defense’s argument that Jackie Carter’s testimony was not relevant, that Ms. Carter “wouldn’t have been over here testifying yesterday if that evidence hadn’t been ruled by the Court as relevant and probative of this guy’s intent.” Sasser contends that this remark was inappropriate because it bolstered the credibility of a State’s witness and “directly added the court’s imprimatur to that testimony.”

Sasser also contends that the prosecutor inappropriately argued that Sasser failed to express remorse for causing Joanne Kennedy’s death. Specifically, Sasser argues that both his right against self-incrimination and his right to a jury trial were violated when the prosecutor asked the jury the following rhetorical question: “Did you hear any sign of remorse from him? None.”

Sasser argues that the prosecutor continued to make improper remarks in his closing argument during the penalty phase of the trial. Sasser alleges that the prosecutor again inappropriately emphasized Sasser’s apparent lack of remorse for Ms. Kennedy’s death. He also contends that the prosecutor erroneously declared to the jury that there is no role for mercy in the criminal justice system.

In the portion of its order that deals with this claim, the Circuit Court first observes the following:

Several of these remarks look worse on paper than they did in the courtroom. The prosecutor’s statements that he would have charged the petitioner with something else if he had been guilty of anything else and his statement that mercy has no place in the criminal justice system were more a way of speaking than a flat statement and were understood as the prosecutor’s opinion about the evidence that was presented, which is permissible. It was the prosecutor’s opinion that the petitioner was guilty only of capital murder and that there was no room for mercy in this case. Contrary to the petitioner’s argument, counsel are permitted to express their opinions within reason: “Although it is not good practice for counsel to inject their personal beliefs into the closing arguments, mere expressions of opinion by counsel in closing argument are not reversible error so long as they do not purposely arouse passion and prejudice.” Neff v. State, 287 Ark. 88, 696 S.W.2d 736, 740 (1985).
As to the argument attacking the statement that the testimony of the previous victim was relevant and probative of the petitioner’s intent because the court had ruled that it was, the statement was correct, . . . and the evidence would not have been admitted had the court not so ruled. Further, the juror (sic) were instructed that they should accept without question the court’s rulings on the admissibility of the evidence. If there was a valid objection to this remark, it was not that the remark was erroneous.

Likewise, the Circuit Court found that the prosecutor’s remarks during the penalty phase were also merely expressions of the prosecutor’s opinion. The Circuit Court did find, however, the prosecutor’s remarks about remorse to be “technically objectionable,” but suggested that they had little effect on the jury because the evidence was overwhelming, and only the degree of homicide was at issue.

To the extent that Sasser argues that the trial court erred when it did not, on its own motion, seek to remedy the alleged prejudice caused by the prosecutor’s remarks, we conclude that he cannot raise that argument for the first time in a Rule 37 proceeding. This is an allegation of trial error that should have been raised on direct appeal. As we explained above, such an error can only be raised for the first time under Rule 37 if it is so fundamental as to render the judgment void and subject to collateral attack. In Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983) we held that a trial error involving a remark made by a prosecutor during closing argument was not “fundamental.” Accordingly, we may only consider Sasser’s claim that his counsel was ineffective for failing to object to prosecutor’s comments.

Regarding the ineffective-assistance-of-counsel claim, the Circuit Court noted that during the postconviction hearing, Sasser’s defense counsel testified that he typically does not object during closing arguments unless the comments are “ ‘absolutely outrageous’ because to object to anything less only highlighted the comment and made the jury, which might not have understood the significance of the remark, pay attention to it.” The Circuit Court then concluded that Sasser’s attorney did not object to the prosecutor’s comments as a matter of trial strategy, and therefore, did not render deficient performance.

We conclude that the Circuit Court’s denial of relief on the ineffective-assistance-of-counsel claim is not clearly erroneous. Catlett v. State, supra. Experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor’s comments seem more significant to the jury. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the wide range of permissible professional legal conduct. Cohen v. United States, 996 F.Supp. 110 (D. Mass. 1998).

Failure to Lodge Due Process Objection

Sasser next argues that his trial counsel was ineffective for failing to lodge a due process-based objection to the admission of Jackie Carter’s testimony. During the trial, Ms. Carter’s testimony, while evidence of a prior crime, was ruled admissible because it had independent relevance toward proving Sasser’s modus operandi and intent in the crime against Joanne Kennedy, and because its probative value was not outweighed by the danger of unfair prejudice. Sasser now argues that his counsel, in addition to arguing that Ms. Carter’s testimony was inadmissible pursuant to Rules 403 and 404(b) of the Arkansas Rules of Evidence, should have also argued that the admission of the testimony would violate the Due Process Clause. Sasser contends that his rights to due process and a fair trial were violated because the probative value of the testimony was substantially outweighed by the danger of unfair prejudice, and that an appropriate objection during trial would have either led to the exclusion of the evidence or a different outcome in the direct appeal.

We find no merit to this claim because it is unlikely that a due process-based objection would have achieved any more than counsel’s objections based on the Rules of Evidence. In fact, such an objection would have been redundant because fairness to the party who opposes the admission of the evidence is built in to Rule 403 and Rule 404(b). According to Rule 404(b), evidence of prior crimes, wrongs, or acts is generally not admissible unless it has independent relevance. Despite having independent relevance, however, the evidence must still pass the balancing test in Rule 403, which provides that relevant evidence may be excluded if the probative value is outweighed by, among other things, the danger of unfair prejudice. The Advisory Committee Note to Rule 403 explains that “unfair prejudice” within the context of the rule, means “an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.” Accordingly, it is unlikely that a due process-based objection would have been any more successful during trial, or in the direct appeal, and counsel did not perform deficiently by hmiting the grounds for his objection to the Rules of Evidence.

Failure to Seek Limiting Instruction

Sasser next argues that his trial counsel was ineffective for failing to request a limiting instruction when Jackie Carter’s testimony was admitted. In the direct appeal, we concluded that we could not reach Sasser’s argument that the trial court erred by not giving the jury a limiting instruction because Sasser did not request such an instruction. Sasser now argues that he was “absolutely entitled” to the limiting instruction, and that but for his attorney’s failure to request it, the outcome of the trial, or the appeal, would have been different.

In an affidavit that he filed in the postconviction proceeding, Sasser’s trial counsel stated that at the time that Jackie Carter’s testimony was admitted, his strategy was to avoid drawing more attention to its content. He suggested this strategy manifested itself in both his decision to decline cross-examining Ms. Carter and in his decision to refrain from seeking a limiting instruction. Sasser responds, however, by arguing that his attorney’s claim that he made a tactical choice is belied by his decision to argue the absence of the instruction as trial error in the direct appeal.

In its order, the Circuit Court resolved the apparent conflict by finding that counsel engaged in legitimate trial strategy when he chose not to seek the hmiting instruction. Specifically, the court seemed to find the decision to not cross-examine Ms. Carter as corroboration that counsel’s omission was a matter of trial strategy rather than error. The order states as follows:

In this case, petitioner’s counsel was faced with overwhelming evidence against petitioner, not the least of which was evidence that petitioner had attacked another convenience store clerk under very similar circumstances a few years earlier. Because petitioner’s counsel was unsuccessful in keeping this evidence out, petitioner’s counsel was forced to consider how to deal with it in front of the jury. In an effort not to highlight Jackie Carter’s testimony, petitioner’s counsel chose not to request the instruction that petitioner now alleges would have been requested. Counsel’s strategy with respect to that instruction was the same as it was with respect to her trial testimony, which is evidenced by counsel’s decision not to cross-examine her.

Accordingly, the Circuit Court concluded that counsel’s choice not to seek the limiting instruction was a matter of trial strategy that could not be a basis for a finding of ineffective assistance of counsel.

We have no cases that decide the issue of whether the failure to seek a limiting instruction upon the admission of evidence of prior crimes could be a matter of trial strategy, and therefore, not cognizable as an ineffective-assistance-of-counsel claim. While the Circuit Court’s conclusion is not without support from other jurisdictions, the better approach is to resolve the issue according to the prejudice prong of the Strickland analysis. In United States v. Liefer, 778 F.2d 1236 (7th Cir. 1985) for example, the defendant argued that his trial counsel was ineffective for not seeking a limiting instruction when evidence of the defendant’s prior bad acts was admitted. The Seventh Circuit Court of Appeals, in denying relief on the ineffective-assistance-of-counsel claim, applied the second prong of the Strickland analysis in the following manner: “(w)e need not decide whether . . . counsel ‘fell below an objective standard of reasonableness,’ (citation omitted) because, in light of the substantial evidence against (the defendant), there is no probability that the outcome of his trial was prejudiced by the alleged deficiency.” See also United States v. Ramos, 971 F.Supp. 186 (E.D. Pa. 1997); Easley v. State, 978 S.W.2d 244 (Tex. App. 1998). Accordingly, we must determine whether but for counsel’s failure to request the instruction, the outcome of the trial would have been different.

As we explained above, there was ample evidence, even excluding Jackie Carter’s testimony, to support a conviction for capital felony murder with either kidnapping, attempted kidnapping, or attempted rape as the underlying felony. Under these circumstances, there is no reasonable probability that the outcome of the trial would have been different if Sasser’s attorney had obtained a limiting instruction.

As for the allegation that the failure to request the instruction prejudiced Sasser on appeal, we have to evaluate the likelihood of success attached to an allegation that the trial court erred in refusing to give the instruction when it was requested. We conclude that such an allegation would not have led to a reversal because even if the trial court refused to give the instruction once it was requested, the error would have been harmless in light of the overwhelming evidence, excluding Jackie Carter’s testimony, that was introduced against Sasser. See United States v. Randazzo, 80 F.3d 623 (1st Cir. 1996); United States v. King, 897 F.2d 911 (7th Cir. 1990).

Failure to Seek Appointment of Co-Counsel

In his final argument in this appeal, Sasser contends that he did not receive effective assistance of counsel during his trial because he was not represented by two attorneys as required by the minimum standards promulgated by the Arkansas Public Defender Commission and the Guidelines for Appointment and Performanee of Counsel in Death Penalty Cases issued by the American Bar Association. Sasser argues that despite the existence of these standards and guidelines, his attorney did not seek the appointment of another attorney to assist him, nor did the trial court appoint an attorney on its own motion. Sasser then makes the bare allegation that because additional counsel was not appointed, he received ineffective assistance of counsel.

We affirm the Circuit Court’s denial of relief on this claim. Sasser has not made any specific allegation as to how the absence of a second attorney affected his trial counsel’s performance, or how he was prejudiced by the fact that he was represented by one attorney. Conclusory allegations cannot be a basis for postconviction relief. Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1990).

Affirmed.

       In Abbott v. State, 726 S.W.2d 644 (Tex. App. 1987), the court held that “(although hindsight may suggest a limiting instruction of some nature, it is reasonable that, as a trial tactic, counsel did not wish to remind the jury of those matters.”


text:
    J. Stephen WARNOCK v. Ann Warnock LASER
    98-698
    993 S.W.2d 918
    Supreme Court of Arkansas
    Opinion delivered July 8, 1999

      T. David Carruth, for appellant.

      Gilbert Law Firm, by: Melinda R. Gilbert, for appellee.
   Per Curiam.

On February 25, 1999, the underlying case was orally argued, and our decision was handed down March 4, 1999. See, Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). Rehearing was denied on March 15, 1999. On March 22, 1999, appellee filed a motion for release to appellee of appellant’s supersedeas bond. Appellant responded, arguing that the amount of the supersedeas bond exceeded any claim that appellee should be allowed. As a consequence of the disputed questions of fact, we remanded these issues to the chancellor with directions to conduct a hearing and provide us with a report and recommendations for the disposition of the supersedeas bond. The chancellor carefully and diligently followed our directions, and on June 18, 1999, the record and order of the chancellor was filed with the clerk.

Also on June 18, 1999, appellee filed a motion for clarification and determination of our earlier per curiam order remanding the matter to the chancellor, and seeking further relief.

We deny appellee’s motion, adopt the findings of the chancellor, and order that The Clerk of the Supreme Court release $1,702.15 from the supersedeas bond payable to appellee with any remainder of the bond being returned to appellant as the party who posted the bond. The parties shall equally divide the cost of compensating the court reporter for her services in preparing and transmitting the record to this court. Finally, each party shall bear its own costs for attorneys fees.

Motion for clarification and determination denied.

Motion for release of supersedeas bond granted as modified.

Glaze, J., not participating.