author: ROBERT L. Brown, Justice. RAY THORNTON, Justice,

text:
    Christina Marie RIGGS v. STATE of Arkansas
    CR 98-1281
    3 S.W.3d 305
    Supreme Court of Arkansas
    Opinion delivered November 4, 1999

      John Wesley Hall, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.

       There was some testimony that Riggs may not have been “in restraints” at the time of her statement, but the State conceded she was at oral argument. Restraints were imposed because she was combative when first admitted to the hospital.

       In his brief on appeal and during oral argument, counsel for Riggs argued that the testimony of a psychiatrist, Dr. Robert L. Rice, who saw Riggs at 9:30 a.m. on November 6, 1997, showed that at that time she had a “cloudiness of sensorium” and was “a little bit cloudy” and like “someone waking up from anesthesia.” Dr. Robert Rice did not testify at the suppression hearing but only at trial. Thus, his testimony was not before the trial court for suppression purposes. Even had it been, we do not view it to be of sufficient impact to render the trial court’s finding on voluntariness clearly erroneous.

   ROBERT L. Brown, Justice.

Appellant Christina Marie Riggs appeals ce. judgment of conviction for the capital murder of her two children, Justin Thomas (age 5) and Shelby Riggs (age 2). She raises four points on appeal relating to the guilt phase of her trial: (1) that her statement to police was involuntary and her waiver of Miranda rights was also involuntary, unknowing, and unintelligendy made due to her attempted suicide by drug overdose and overreaching police conduct; (2) that the trial court erred in refusing to give instructions that the jury should consider her mental disease and defect in assessing her ability to form the necessary intent to murder; (3) that the trial court erred in overruling her objection to prejudicial remarks in the prosecutor’s opening statement; and (4) the trial court erred in admitting into evidence four prejudicial photographs. Riggs presents no issues relating to the sentencing phase of her trial and at her trial asked to receive the death penalty after her guilt for capital murder was determined. We are not persuaded that any of these issues has merit, and we affirm.

The record reveals that at the time of the murders of her children Riggs was a licensed practical nurse at the Arkansas Heart Hospital in Little Rock. On the last day of her work at the hospital which was November 4, 1997, she obtained Elavil, which is an antidepressant. She also obtained morphine and potassium chloride. She returned to her residence in Sherwood, and that night at about ten o’clock, she gave Elavil to her children to make them sleep. After they fell asleep, she injected Justin with potassium chloride. When he woke up crying in pain, she injected him with morphine. When that did not quiet him, she smothered him with a pillow. According to Riggs, Justin fought back as she smothered him. After her experience with Justin and the potassium chloride, she decided to smother Shelby with a pillow, which she did. She told police that Shelby only fought “a little bit.” Following the murders, she moved the bodies of the dead children into her bedroom and placed them together in her bed. She wrote suicide notes to her mother, Carol Thomas; her sister, Roseanna Pickett; and a former husband, John Riggs. She next took a considerable dosage of Elavil and injected herself with potassium chloride. The drugs caused her to pass out on her bedroom floor. This was estimated to have occurred at approximately ten-thirty p.m. that same night.

The following day, which was November 5, 1997, Riggs’s mother attempted to locate her and came to her house in Sherwood at about four o’clock in the afternoon. She found the bodies of the two children and her unconscious daughter. She called 911, and paramedics arrived on the scene. The paramedics eventually took Riggs to Baptist Memorial Hospital in North Little Rock at about five-thirty p.m., where her stomach was pumped and she was stabilized.

Meanwhile, the Sherwood police conducted a search of Riggs’s home, where they found the suicide notes, the bottle of Elavil, the morphine, potassium chloride, and the used syringes. Back at the hospital, Riggs’s family members had arrived, including her mother and sisters, and they asked to see her. The Sherwood Police Department had instructed police officers and hospital staff not to permit her to talk to or see her family. Shortly after midnight, Riggs’s family retained an attorney to represent her. The attorney contacted the Sherwood Police Department and told police officers not to speak to Riggs without his being present.

On the morning of November 6, 1997, Detectives Charles Jones and Cheryl Williams of the Sherwood Police Department arrived to take Riggs’s statement. At 9:20 a.m., Detective Jones gave Riggs Miranda warnings and took an eight-minute statement. In that statement, Riggs admitted to killing her children and explained the details of the killings, together with her attempted suicide. Riggs was released from the hospital several hours later and moved to the Pulaski County Jail. She was charged with two counts of capital murder. Later, she pled not guilty by reason of mental disease or defect.

Before her trial, Riggs moved to suppress the statement made to the Sherwood detectives in the hospital on the basis that her statement was involuntary because of her drugged condition and because her family had retained an attorney for her. According to her motion, taking the statement under these conditions violated her right to due process of law and her right to counsel. The trial court denied Riggs’s motion and found that after listening to a recording of her statement, there was no indication that she was hallucinating. The court also found that she was sufficiently coherent, that her statement was voluntary, and that she had been accorded her rights under Miranda.

At trial, the jury rejected Riggs’s defense of mental incapacity caused by severe depression, and she was convicted on both counts of capital murder. During the penalty phase, Riggs testified and asked that she be sentenced to death. The jury sentenced her to death on both counts. Riggs initially refused to appeal, and this court stayed her execution for a determination of whether she had the capacity to choose between life and death under Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). See Riggs v. Humphrey, 334 Ark. 231, 972 S.W.2d 946 (1998) (per curiam). Before the trial court could conduct the hearing, Riggs agreed to appeal the guilt phase of her trial. She instructed her attorney not to appeal any of the issues related to the penalty phase.

I. Suppression of Her Statement

For her first point, Riggs claims that the trial court erred in finding that her statement to the detectives was voluntary and her waiver intelligently made, because she was still under the influence of the drugs taken during her suicide attempt and was hallucinating when she made her statement. She further claims that isolating her from family and retained counsel violated her Fifth and Sixth Amendment rights.

a. Custody

We initially address whether Riggs was an accused in custody at the time she gave her statement to the Sherwood police. The State argues that she was not in custody for purposes of Miranda protection when she talked to the police detectives. We disagree.

In 1995, we discussed several United States Supreme Court decisions regarding what constitutes custodial interrogation:

It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984), citing California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam). Stated another way, the Supreme Court defined custodial interrogation as meaning the questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 444 (1965); see also Stansbury v. California, 114 S.Ct. 1526 (U.S. 1994) (per curiam); and Oregon v. Mathiason, 429 U.S. 492 (1977) (per curiam). The Supreme Court further explicitly recognized that Miranda warnings are not required simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Beheler, 463 U.S. at 1125. In resolving the question of whether a suspect was “in custody” at a particular time, the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being interrogated. Stansbury, 114 S.Ct. at 1529.

State v. Spencer, 319 Ark. 454, 457, 892 S.W.2d 484, 485 (1995). In later cases, we have followed the standards set forth in Spencer. See, eg, Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997); Soloman v. State, 323 Ark. 178, 913 S.W.2d 288 (1996).

In the instant case, we have no doubt that viewing the objective circumstances, a reasonable person in Riggs’s shoes would have believed she was in custody. First, she was under a police guard at the hospital, she was strapped to her bed in the ICU unit, and her family was prevented from seeing her. Second, the police officers had found her dead children and had reasonable cause to believe that she killed them based on the suicide notes found at her house. Third, she was read her Miranda rights by the Sherwood police detectives, which indicates that she was more than a mere suspect. We hold that the objective circumstances of the interrogation support a conclusion that Riggs was in custody.

b. Voluntariness of the Statement.

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 cleárly 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 argues lack of voluntariness in connection with her statement but also as concerned her waiver of Miranda rights. Her primary claim is that her medical condition rendered her vulnerable and that she was hallucinating and delusional at the time of the statement. She was, according to her theory of the case, incapable of choosing to make a voluntary statement when she talked to the Sherwood detectives the morning of November 6, 1997.

We turn then to the statement made by Riggs to the police detectives, the accuracy of which was stipulated by the prosecutor and defense counsel:

Detective JONES: This is Detective Jones of the Sherwood Police Department. Today’s date is November 6, 1997. The time is 9:20 a.m. Present in this inter., room is Detective Cheryl Williams and Christina Riggs. Christina, do you understand that I am tape recording this?
Riggs: Yes, I do.
DETECTIVE Jones: Okay, Christina. I want to advise you of your rights. You have the right to remain silent. Anything you say, can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. (Riggs crying) If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. (Riggs crying) You can decide at any time to exercise these rights and not answer any questions (Riggs crying) or make any statements. Do you understand your Miranda rights, Christina? (Riggs crying in the background)
RlGGS: Yes, I do, sorry.
Detective Jones: You do. Okay. Christina, what we are doing is investigating the death of your two babies. Do you want to tell us what happened?
RlGGS: (Crying) I killed them.
Detective Jones: What did you say?
Riggs: I said...
Detective Jones: Did you say you killed them?
RlGGS: I’m sorry.
DECTECTIVE Jones: Christina, how did you go about doing that?
RlGGS: I got some botdes (inaudible) and stuff from here...I need a cigarette (inaudible).. .Darvocet.
DETECTIVE Jones: Are you saying that you got some medicine from the hospital?
RlGGS: (no verbal response)
Detective Jones: Christina, how did you do it? Did you give them an injection? Did you give them a shot?
RlGGS: I tried to ... and ... I did it with Justin, because I figured with him being the oldest one that he would give me more problem.
Detective Jones: Uh-huh. (yes)
RlGGS: So, I tried it with him and I thought it would just stop his heart. But it hurt. Oh, he said it hurt ...(inaudible).
Detective Jones: Uh-huh. (yes)
RlGGS: It didn’t work, he just kept calling, “Momma! Momma! Momma!” I just figured it was too late now because I had no place to turn back to. I cleaned out my checking account and gave my mother all the money I had. (Crying)
Detective Jones: Christina, why did you do this?
RlGGS: Because I wanted to die. But I didn’t want to die and leave my kids behind or for them to be a burden to somebody else. I didn’t want them to think I didn’t love them and I didn’t want them to grow up separately because they have two different Daddy’s. And I knew if I passed away they would be fighting my Mother for custody and I didn’t want that for nobody.
Detective Jones: You felt like you were doing it for the kids’ sake?
RlGGS: In a way, yeah. (Inaudible)...my piece of mind.
Detective Jones: Christina, did you really want to die?
RlGGS: (Crying)
Detective Jones: And you felt it would be better if your children just die with you and ... was the children already dead before you took your medicine?
Riggs: Yes.
Detective Jones: How long had they been dead before you took your medicine?
RlGGS: About twenty minutes.
Detective Jones: About twenty minutes?
RlGGS: That’s because I drank and got up and smoked a cigarette and got back and sit for a minute and (inaudible) I was like, “Okay, I’m going to do it now. I can’t turn back now because you’ve already killed Justin.” And ... so I did it.
Detective Jones: What time did you give them the medicine? Do you remember?
RlGGS: (inaudible) Justin about 10:15 or 10:30.
Detective JONES: 10:15 or 10:30 in the morning?
RlGGS: No, in the evening.
Detective Jones: Oh, in the evening?
RlGGS: Last night.
Detective Jones: Okay.
RlGGS: Then I smoked another cigarette and waited ... and suffocated Shelby.
Detective Jones: You suffocated Shelby?
RlGGS: (Crying)
Detective Jones: What did ... how did you suffocate her? RlGGS: I put a pillow over her head.
Detective Jones: Okay, Did you...
RlGGS: (Crying)
Detective JONES: Had you given her any medicine at all, or...any of the Morphine or the Potassium Chloride?
RlGGS: I slipped them ... I made them drink half of an Elavil because I figured that would make them sleep a little bit better so that it wouldn’t wake them (inaudible).
DETECTIVE JONES: So, Shelby, Shelley, you killed her with a pillow. You suffocated her. And what about the little boy. How did you do him?
RlGGS: I gave him the medicine and when it didn’t work (inaudible).
Detective Jones: You suffocated him too?
RlGGS: (Crying) yes.
Detective Jones: With a pillow?
Riggs: (Crying)
Detective Jones: Were they fighting while you were suffocated (sic) them?
RlGGS: Justin did. Shelby a little bit but not much. (Crying)
DETECTIVE JONES: When did you decide to do this, Christina? On what day did you decide to do this?
RlGGS: Uh ... the best I remember it was Sunday night or Saturday night, because we was out talking and this and that and the other ... and they caught me.
Detective Jones: Who caught you?
RlGGS: The Sherwood (inaudible) got me depressed. I was thinking about what was going on in my life and that things aren’t always working for me and (inaudible).
Detective Jones: When did you get those drugs from the hospital?
RlGGS: When?
Detective Jones: Uh-huh? (Yes)
RlGGS: Yesterday.
Detective Jones: Yesterday?
RlGGS: (No verbal response)
Detective Jones: You mean the day that you killed them? Is that the day that you got the drugs? The last was it...
RlGGS: (Inaudible) Seventh street right (inaudible).
Detective Jones: Was it the last day that you worked at the hospital or the day before that?
RlGGS: I think...
Detective Jones: When you got...
RlGGS: I got the drugs and I gave them to my kids. That’s the only drugs that I had in my hand. And I know that there was three Valiums in a vial in there, but there wasn’t enough to even cover the jar up (inaudible) put it in my pocket and bring them home.
Detective Jones: Uh-huh. (yes)
RlGGS: And I know I should have thought better ... had somebody rinsing with me, but ... they were just what came home in my pockets.
Detective Jones: Did you know what you were going to do when you took the drugs from the hospital? Did you have intentions of giving them to your children? And how many days did you think about this before you killed your children?
RlGGS: About three weeks. Two weeks.
Detective Jones: Two or three weeks. In other words, you’ve been thinking about doing this for the last two or three weeks?
RlGGS: (No verbal response)
Detective Jones: What made you decide to just go ahead and do it?
RlGGS: I just can’t take it no more.
Detective Jones: You couldn’t take it any more.
RlGGS: I felt like I was out of control.
Detective Jones: Did you just feel like your life was in a mess?
RlGGS: (No verbal response)
Detective Jones: Had you talked to anybody about this? Your Mom or anybody?
RlGGS: I’ve tried to talk to people about what I feel and what I think and they were just like, “I don’t have time right now. We’ll do it some other time.” So, I just got to where I don’t care any more. I (inaudible) but they can’t give me no help.
Detective Jones: So you just felt like nobody was listening to you?
RlGGS: (Crying)
Detective Jones: Okay, Christina...
RlGGS: Answer me something. Did you come down the escalators by yourself?
DETECTIVE JONES: Uh, did we come down the escalator by ourself? RlGGS: Your Mother. When ... she came in town.
Detective Jones: Your Mother?
RlGGS: It seems like I keep seeing some old people getting on the elevators ... sitting down away from the (inaudible). She didn’t like what was on it, so she put (inaudible) just like your mother.
Detective JONES: Christina, do you have anything more to say about your babies or anything?
RlGGS: I wish I hadn’t done it now.
Detective Jones: Okay. Detective Williams, do you have anything to add to this interview?
Detective Williams: No.
Detective Jones: This is Detective Jones, the time is 9:28 a.m. This concludes this interview

The trial court had the recorded statement and transcribed text before it at the suppression hearing. The court also had the testimony of Dr. Joe Buford, who was the emergency room physician late afternoon on November 5, 1997, when Riggs was admitted to Baptist Memorial Hospital. He testified that she was presented as a “probable overdose,” and because of this, her stomach was pumped, and she was given charcoal to absorb any of the remaining drugs in her stomach. Dr. Buford testified that he saw Riggs on the morning of November 6, 1997, and at that time, she was alert and oriented and her vital signs were stable. This was before Riggs gave her statement. He added that she responded appropriately to his questions, and that she did not appear to be incoherent or suffering from hallucinations at that time.

. Karen Stiles, a registered nurse in the intensive care unit at the hospital, testified that she first came into contact with Riggs on the evening of November 5, 1997. Ms. Stiles stated that at that time, Riggs was combative and incoherent. Ms. Stiles testified that the next morning, Riggs was calm, and she answered questions appropriately. Ms. Stiles referred to her assessment notes and stated that at seven-thirty or eight o’clock in the morning, Riggs was awake, alert, and oriented. She also testified that according to her notes, Riggs was speaking rapidly and was hard to understand, but that she could understand her. Ms. Stiles then referred to the assessment she did of Riggs using the Glascow Coma Scale. According to Ms. Stiles, the scale is used to determine a patient’s level of consciousness. Ms. Stiles testified that at eight o’clock in the morning on November 6, 1997, she gave Riggs a fifteen, the highest score she could receive on the scale. On cross-examination, Ms. Stiles noted that Riggs signed the discharge orders from the physician but that her signature was illegible.

Detective Jones and Detective Williams testified at the suppression hearing that Riggs made no attempt to stop the statement and that they in no way forced her to give the statement. Detective James Harper of the Sherwood Police Department testified that he sat in Riggs’s hospital room the night of November 5, 1997, and the early morning of November 6, 1997. At one point he overheard her say: “I had to do it so I wouldn’t leave them behind.”

To counter this evidence, Riggs called several witnesses at the suppression hearing. Another emergency room physician, Dr. Jim Rice, testified that Riggs was “combative at times” and “just incoherent and not really making any sense,” when she was brought into the emergency room on November 5, 1997. Julia Brown, a nurse, stated that Riggs was confused as late as four o’clock in the morning of November 6, 1997, but she was not surprised that the nurse on the next shift four hours later found her to be alert, oriented, and responsive because it is not unusual for an overdose victim “to come around.”

Riggs’s family members also testified at the suppression hearing. Her mother, Carol Thomas, told the court that Riggs was confused the day after the statement was given about whether Shelby was alive. She “hallucinated” about a conversation with her that did not happen. Riggs’s sister, Roseanna Pickett, testified that the day after the statement, Riggs was incoherent and thought she was playing with Shelby. Her aunt, Mary Willis, testified that the next day, Riggs was “seeing things,” including her dead children and a piece of gum. Another sister, Elizabeth Nottingham, testified that the following day, Riggs was groggy, not making sense, and “describing hallucinations.” There is, too, the fact that at the end of her questioning Riggs made reference to the detective’s mother descending on an escalator and old people getting on elevators which had no bearing on the subject matter of the interview and was arcane and bizarre.

The trial court was confronted with all of this testimony and the statement itself and found the statement to be voluntary and not the product of delusion or hallucinations. It is clear to us that the testimony was in conflict, and we have no doubt that Riggs was somewhat impaired at the time she talked to police detectives because of the drug overdose. Yet, we have resolutely held that conflicts in the testimony and the extent of her impairment are for the trial court to resolve. See, e.g., Jones v. State, supra; Trull v. State, supra. We also defer to the trial court in its determination of credibility of witnesses in suppression matters. See Rankin v. State, supra. In the instant case, according to the testimony of Dr. Buford and Ms. Stiles, who were in contact with Riggs the morning of November 6, 1997, Riggs was alert and responsive before she gave her statement. The statement itself further portrays an ability to answer questions and describe events which physical evidence already in the hands of police confirmed. Rational response to questioning is a legitimate factor for the trial court to consider. See Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994); McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988). And unlike the facts in Mincey v Arizona, supra, Riggs never requested that the interview stop so that she could retain counsel. Under these circumstances, we hold that the trial court did not clearly err in finding that her statement was voluntarily given. See Jones u State, supra.

Having held as we do, there is one aspect of the trial court’s ruling following the suppression hearing with which we disagree. The trial court refers to the mental evaluation of Riggs by Dr. John Anderson, a psychologist with the Arkansas Division of Mental Health Sciences, who concluded that Riggs was able to appreciate the criminality of her conduct at the time of the murders on November 4, 1997. The trial court stated that it “leaned on” the evaluation in finding Riggs mentally competent to give her statement because the murders and police interview were close in time. That part of the ruling discounts the drug overdose and vulnerability of Riggs to having her will overborne, all of which forms the cornerstone of her voluntariness argument.

The trial court went forward, however, and made the following ruling:

Furthermore, the Court, in Hstening to the tape today, doesn’t have any indication that there is hallucination during the time of questioning. If so, it’s certainly not evident from the tape. And I believe that the statement made by the defendant is sufficiently coherent as to establish the fact that it is a voluntary statement. Her rights were accorded. There’s no indication that there are any constitutional violations. There is no indication of any false promises made by police officers. No denial. The statement was given only after the Miranda rights were given.
And, looking at all the totality of the circumstances, the Court is of the opinion that this statement should not be suppressed. So, the defendant’s motion to that effect is denied.

It is this finding by the trial court which we hold is not clearly erroneous.

c. Legal Counsel

Riggs next contends that her hospital statement was involuntary because police officers isolated her from her family and withheld information that her family had retained legal counsel for her. Counsel had been retained before she gave her statement to the two detectives the morning of November 6, 1997.

There was no reversible error in this regard. The United States Supreme Court has made it clear that failure by police officers to inform an accused that counsel has been retained by the accused’s family is not enough to invalidate the confession. See Moran v. Burbine, supra. In Moran, the accused’s sister arranged legal counsel for her brother. The lawyer called the police department and stated that she would act as the accused’s counsel, should the police choose to question him. The lawyer was informed that the accused would not be questioned until the next day. Despite that information, less than an hour later, police officers began a series of interviews where the accused confessed to committing the murder in question. The Court held that the police officers’ failure to inform the accused of the attorney’s telephone call did not deprive him of information essential to his ability to knowingly waive his Fifth Amendment rights to remain silent or Sixth Amendment right to counsel. The Court said:

129
Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.... No doubt the additional information would have been useful to respondent; perhaps even it might have affected his decision to confess. But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.

475 U.S. at 422. The Court continued: “Nor do we believe that the level of the police’s culpability in failing to inform respondent of the telephone call has any bearing on the validity of the waivers.” 475 U.S. at 423.

Flence, under Moran, even if the Sherwood Police Department deliberately withheld information from Riggs regarding retention of an attorney, that would not invalidate her waiver of her Fifth or Sixth Amendment rights. Those rights are personal to the accused, and she clearly waived them.

d. Harmless Error.

There is an alternative basis for our affirmance of the trial court’s admission of the statement and that is harmless error beyond a reasonable doubt. Here, we are concerned only with the verdict of guilty for capital murder, because Riggs did not contest her death sentence and, indeed, invited it.

To conclude that a constitutional error is harmless and does not mandate reversal, this court must conclude beyond a reasonable doubt that the error did not contribute to the verdict. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999), Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995); Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992); Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992); see also Chapman v. California, 386 U.S. 18 (1967). The United States Supreme Court has held that the admission of an “involuntary confession” is subject to a harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279 (1991); see also Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999); Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997); rev’d on other grounds, State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996).

In the case before us, the jury heard abundant evidence that Riggs committed the murders. The question then for this court to determine is if we excise from the evidence Riggs’s statement given to the Sherwood police detectives, does the remaining evidence show beyond a reasonable doubt that she committed the murders? See Chapman v. California, supra. We conclude that it does.

The testimony from Riggs’s suicide letters and witnesses for both the State and defense is rife with statements that Riggs admitted she killed her children. What follows are examples of this cumulative testimony:

• Riggs’s letter to Carol Thomas saying she had killed the children.
• Riggs’s letter to John Riggs saying she had taken the lives of the children.
• Riggs’s statement overheard by nurse Julia Brown: “I killed my kids.”
• Riggs’s telephone call to David McCombs where she described injecting her boy who then cried and smothering her daughter with a pillow.
• Testimony of defense witness, Dr. Bradley Diner, a psychiatrist, that Riggs described how she injected her son with potassium chloride and morphine and suffocated her daughter.
• Testimony of defense witness, Dr. James Moneypenney, a psychologist, that Riggs told him that she killed her children by giving them Elavil and then smothering them with a pillow. He further testified about Riggs planning the murders forty-eight hours before hand and getting the drugs, pulling money out of her checking account for her mother, and writing suicide letters.
• Testimony of Riggs’s sister, Elizabeth Nottingham, that Riggs told her she was sorry for what she did.
• Testimony of Carol Thomas that Riggs told her she injected Justin who cried, “It hurts. It hurts.” She couldn’t do that to Shelby, she said, so she smothered her.
• State witness Dr. John Anderson, a psychologist, who stated that Riggs told him she killed her children and told him how she did it.
• State witness Dr. Wendall Hall, a psychiatrist, who testified Riggs told him she killed her children immediately before trying to kill herself and that she had planned all this in advance.

There was, in addition, the physical evidence found by police officers at Riggs’s residence in Sherwood on November 5, 1997, which included the bottle of Elavil, morphine, potassium chloride, the used syringes, the two deceased children, and Riggs collapsed at the foot of the bed in an unconscious state. There was also the testimony of the medical examiner that there was evidence that the two children had been suffocated.

We conclude that this cumulative evidence of Riggs’s confessed guilt and physical evidence established her guilt for capital murder beyond a reasonable doubt even without her statement to the Sherwood police detectives.

II. Jury Instructions on Intent

For her second point, Riggs contends that the jury instruction given on the affirmative defense of mental disease or defect was misleading because it instructs the jury not to consider the evidence of her mental defect or disease until after it determines that the State has met its burden of proving criminal intent beyond a reasonable doubt. She urges that evidence of mental disease or defect should be considered by the jury at the time it considers criminal intent as an element of the crime of murder. She concedes that this court has already decided this issue unfavorably to her in Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981), and in Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). She argues, nonetheless, that this court should overrule those decisions. She points to approximately eleven other jurisdictions that require juries to be instructed that evidence of mental disease or defect may be considered by the jury at the time of determining the requisite intent to commit the murder and argues that Arkansas should join those jurisdictions. Her final claim is that with the correct instruction, the jury could very well have convicted her of first- or second-degree murder or even manslaughter, because there was abundant evidence of her depression which drove her to do what she did.

We decline to overrule our existing precedent on this point. First, Riggs has offered no persuasive authority for why our precedent should be overturned. See McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996). Second, we do not agree that the instructions given were violative of due process. The instructions read by the trial court include instructions on the law relating to capital murder, first-degree murder, second-degree murder, and manslaughter. Each instruction included the level of criminal intent necessary to commit those crimes. The instructions also advised that the State must prove the elements of the crimes beyond a reasonable doubt. The jury was then instructed that Riggs was not responsible for her crime if, as a result of mental disease or defect, she lacked the capacity to appreciate the criminality of her conduct or to conform it to the requirements of law. To be successful, Riggs must prove this affirmative defense by a preponderance of the evidence. But the trial court reiterated at this point of its instructions that it was the State that had the burden of proving criminal intent for the offense beyond a reasonable doubt.

Riggs would have preferred that the trial court give her two non-AMCI proffered instructions which read:

Evidence that the defendant suffered from a mental disease or defect may be considered by you along with all the other facts and circumstances of the case in determining whether the defendant had the required mental state or intent for the crime charged or a lesser offense.
Evidence that the defendant suffered from a mental disease or defect is admissible to prove whether he had the kind of culpable mental state required for commission of the offense charged.

But, again, giving these instructions would have simply run counter to our existing caselaw.

We conclude that the instructions which, first, advised the jury that the State had the burden of proving every element of the criminal offense (including all elements of the lesser included offenses) beyond a reasonable doubt and, second, stated that she could prove her defense that she suffered from mental disease or defect by a preponderance of the evidence did not prejudice Riggs or deprive her of due process of law. We affirm the trial court’s ruling in this regard.

III. Prejudicial Opening Statement.

Riggs next argues that the following statement by the prosecutor as part of her opening statement to the jury was prejudicial and unsupported by the evidence:

Ladies and gentlemen, I want you to go somewhere with me. I want you to go with me to the residence at 8015 Bronco Lane, Sherwood, Arkansas. As we walk up the sidewalk to the residence, we go to the front door. And, as we enter the front door, we hear the laughter of two small children. We open the door and they’re not there in the front room, so we follow the laughter down a hallway.
Mr. Hall: Your Honor, this is argument. Talking about the laughter of two dead children.
The COURT: This is opening statements. Overrule the objection.

Riggs submits that this dramatic statement had only one purpose — to prejudice the jury against her. She also maintains that the statement had no basis in fact and no evidence was ever presented to support it. Because the prosecutor injected raw emotion into the trial, the trial court abused its discretion in overruling Riggs’s objection and allowing this kind of argument.

While theatrical, we do not consider the prosecutor’s opening statement of such moment as to warrant a new trial. We decline to reverse the trial court’s exercise of discretion on this point. See, e.g., Rank v. State, 318 Ark. 109, 883 S.W.2d 843 (1994); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992).

IV Photographs of the Victitps.

For her last point, Riggs points to four photographs and argues that their admission into evidence was inflammatory and prejudicial. She first notes that she admitted from the beginning that she was responsible for the deaths of her children and how she did it. Thus, according to Riggs, the question for the jury to decide was simply whether her severely depressed condition was sufficient to establish either the affirmative defense of not guilty by reason of mental disease or defect or some reduced degree of homicide.

Riggs first objects to Photographs 7 and 10 (Photograph 7 showed the two dead children on Riggs’s bed and Photograph 10 showed a needle mark on Justin’s neck) as redundant and inflammatory and emphasizes that the trial court did not balance the prejudice against the relevance of these pictures. She further argues that it was error to admit two autopsy photos of the children (Photographs 32 and 34), because cause of death was not an issue in the case. She adds that the trial court did not apply the balancing test to these photos either and never made a finding that their probative value exceeded any prejudice. Riggs concludes with a general argument that because emotions were so high in this case, the photographs only served to inflame the jury and unfairly prejudice her case.

The admission of photographs is a matter left to the sound discretion of the trial court. See, e.g., Greene v State, 335 Ark. 1, 977 S.W.2d 192 (1998). When photographs are helpful to explain testimony, they are ordinarily admissible. See, e.g., Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995). Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs into evidence. Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998).

We conclude that there was no abuse of discretion in allowing these photographs into evidence. The two autopsy photographs (Photographs 32 and 34) assisted the medical examiner in explaining cause of death. Photograph 10 was a closeup of the puncture wound made by the needle in Justin’s neck, and Photograph 7 was a closeup picture of the two victims in Riggs’s bed taken at a different angle. The two photographs could have aided the jury in understanding the crime scene and the condition of Justin’s body when police officers found the victims.

Riggs, as a final point, focuses on the fact that the trial court never did a probative-prejudicial weighing with respect to the photographs. Riggs, however, never asked the trial court to do this. Again, we will not reverse a trial court for failing to do what it was never asked to do. Gooden v. State, 321 Ark. 340, 902 S.W.2d 226 (1995). It seems to us that it was incumbent on defense counsel to request such a weighing if it considered such to be important or legally required. There was no abuse of discretion on this point.

V. Rule 4-3(h) Review.

Though not raised by Riggs, the State brings to this court’s attention the point that Riggs sought the death penalty in the penalty phase of her trial and did not contest her death sentence on appeal. Following the penalty phase, the jury unanimously determined, as an aggravating circumstance, that Riggs had caused the death of more than one person in the same criminal episode. With regard to mitigating circumstances, the jury unanimously found that Riggs had no significant history of criminal activity and that she has abilities that would make her a productive member of society, even in prison. The jury also determined that there was some evidence presented to support the fact that the murders were committed while Riggs was under extreme mental or emotional disturbance, but that the evidence was insufficient to prove a mitigating circumstance. The jury then concluded that the aggravating circumstances outweighed the mitigating circumstances and that this justified death by lethal injection. Thus, it is clear that the jury conducted the appropriate weighing of aggravating and mitigating circumstances and made its conclusion, as required by Ark. Code Ann. § 5-4-603 (Repl. 1997).

Riggs initially waived any appeal of her judgment of conviction, and we ordered that a mental determination pursuant to Franz v. State, supra, be made of her ability to choose death. See Riggs v. Humphrey, supra.

After our order, Riggs decided to appeal her conviction on two counts of capital murder but declined to raise issues related to her death sentence. The question, then, is whether her decision on this point constitutes a partial waiver of appeal and a choice of death, which necessitates a Franz hearing.

We think not. Riggs has mounted a significant appeal relating to the guilt phase of her trial. Thus, she has appealed the judgment - against her, although she chose not to raise issues associated with her death sentence, just as she did not at the trial level.

We are further mindful of the fact that under Ark. R. Crim. P. 37.5, as we have interpreted it, Riggs will be entitled to a Franz hearing should she waive her right to postconviction relief. See Willett v. State, 337 Ark. 457, 989 S.W.2d 508 (1999) (per curiam). Thus, if Riggs decides not to pursue her postconviction remedies, as her counsel stated at oral argument, she will be afforded a Franz hearing. In sum, we do not believe that a Franz hearing is warranted at this time under these facts.

The record has been reviewed for other reversible error pursuant to Supreme Court Rule 4-3 (h), and none has been found.

Affirmed.

Thornton, J., dissents.

RAY THORNTON, Justice,

dissenting. As the majority points ticRiggs e, held in custody at the hospital from the time she was admitted until the time she gave the statement. During this time, she was not permitted to visit with her family, and her attorney was denied access to her in the hospital. Both her family and her attorney notified the Sherwood Police that she was represented by counsel, and the police recognized this. Notwithstanding the assurances from two officers that they would not question Ms. Riggs, two other officers reported to duty and proceeded to interrogate her. Ms. Riggs’ statement was delusional and incoherent, and was terminated only when she asked the police officer if his mother had trouble with the escalator. There was no escalator in the hospital.

Under these circumstances, I differ with the majority on the question of whether her statement was given voluntarily, intelligently, or knowingly. For that reason, I respectfully dissent.

       This admission in her brief lends weight to a conclusion that any error associated with her hospital statement was harmless beyond a reasonable doubt.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Milton Thomas KING v. STATE of Arkansas
    CR 99-1222
    3 S.W.3d 334
    Supreme Court of Arkansas
    Opinion delivered November 4, 1999

      R. David Lewis, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Milton Thomas King, by and through his attorney, has filed a motion for rule on the clerk. His attorney, R. David Lewis, admits in his motion that the record was tendered late due to a mistake on his part.

We find an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Shawn O’BRIEN v. STATE of Arkansas
    CR 98-921
    3 S.W.3d 332
    Supreme Court of Arkansas
    Opinion delivered November 4, 1999

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Appellant, Shawn O’Brien, was found guilty by . jury of rape. He was sentenced to ten years in the Arkansas Department of Correction. On January 6, 1998, a mandate affirming appellant’s conviction was entered in the Arkansas Court of Appeals. This conviction was filed in Poinsett County Circuit Court on January 7, 1998. Appellant filed his petition for postconviction relief with the circuit court on April 28, 1998. On July 6, 1998, the circuit court denied appellant’s petition based on its untimeliness. Appellant then filed a notice of appeal on July 24, 1998. He argues that counsel’s failure to notify him of the court of appeals mandate prejudiced him in seeking postconviction relief because his petition was untimely. He also contends that counsel was ineffective for failing to preserve a challenge to the sufficiency of the evidence on appeal. We affirm the trial court’s determination that counsel’s petition was untimely.

Appellant argues that counsel’s failure to notify appellant that the mandate had been issued resulted in appellant’s Rule 37 petition being untimely. Therefore, appellant asserts that he was rendered ineffective assistance of counsel that was prejudicial.

Arkansas Rule of Criminal Procedure 37.2 provides that if an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days of the date the mandate was issued by the appellate court. The United States Supreme Court has held that there is no constitutional right to an attorney in state postconviction proceedings, and, as a result, there is no corresponding right to claim constitutionally ineffective assistance of counsel in those. Coleman v. Thompson, 501 U.S. 722, 752 (1991); McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997). Similarly, this court has held that the right to counsel ends in Arkansas after the direct appeal of the original criminal trial is completed, and the State is not obligated to provide counsel in postconviction proceedings. Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986) (per curiam). Our reasoning has been that a postconviction proceeding is civil in nature and, thus, there is no constitutional right to appointment of counsel as part of a criminal proceeding. Id. Here, appellant was not entitled to counsel to represent him for purposes of his Rule 37 petition. Hence, even assuming his counsel was ineffective in failing to notify appellant that the mandate had issued, this is not a basis upon which he can challenge the trial court’s order or the trial court’s jurisdiction. In addition, it was incumbent on appellant to determine when the mandate was issued just as it is incumbent on a convicted defendant to determine when the judgment is entered before filing a notice of appeal. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994).

Recently, in Porter v. State, 339 Ark. 15, 2 S.W. 3d 73 (1999), we allowed an untimely Rule 37 petition because we found that good cause had been established for petitioner’s failure to timely file his petition. However, Porter was decided under Ark. R. Crim. P. 37.5 in the narrowest of instances where the death penalty was involved and created a rare exception to Ark. R. Crim. P. 37.2. The facts in Porter do not exist here. Appellant was not sentenced to death and he was proceeding pro se on his petition. Thus, based on the foregoing, we affirm the trial court’s denial of appellant’s Rule 37 petition as untimely. Because of this determination, we decline to address appellant’s second point on appeal.

Affirmed.


author: PER CURnow filed

text:
    IN RE: Timothy D. WILLIAMS, Arkansas Bar ID No. 75140
    99-426
    3 S.W.3d 333
    Supreme Court of Arkansas
    Opinion delivered November 4, 1999

      James A. Neal, by: Lynn Williams, for petitioner.

      Respondent, pro se.
   PER CURnow filed

The Professional Conduct Committee has now filed its final petition in this contempt proceeding that it initiated on April 15, 1999. See In Re: Williams, 338 Ark. 479, 995 S.W.2d 349 (1999).

After we appointed a master to hold a hearing and to make findings in this matter, we held Mr. Williams in contempt. Id. at 485. However, we suspended imposition of any penalty. Before imposing immediate punishment, we reinvested the Committee with jurisdiction to conduct any further needed hearings.

The Committee held a hearing and by petition herein has set out the following determinations:

(1) The Committee adopted the master’s findings set out in our July 22, 1999 opinion in In Re: Williams, 338 Ark. 479, 995 S.W.2d 349.

(2) The Committee granted Mr. Williams’s motion to withdraw his Section 71 response filed with the Committee on July 16, 1999. That response was mentioned in this court’s July 22 opinion.

(3) The Committee ordered Mr. Williams’s license to practice law suspended for six months beginning September 17, 1999, and further directed that he fully comply with Section 71 of this Court’s procedures regulating professional conduct.

(4) The Committee noted additionally that four separate complaints against Mr. Williams were considered at a hearing on September 17, 1999, and it voted to initiate disbarment proceedings against Mr. Williams.

(5) The Committee renewed its earlier prayer made in this proceeding initiated on April 15, 1999, for an order sanctioning Mr. Williams and imposing punishment for contempt as this court discussed in its decision of July 22, 1999.

Based on our master’s findings and other matters set out in the contempt proceeding, we fine Mr. Williams in the amount of $458.00, which reflects court reporter expenses incurred by this court.

It is so ordered.


author: DONALD L. Corbin, Justice.

text:
    CONTINENTAL EXPRESS, INC., and Gibralter National Insurance v. Marty FREEMAN
    99-406
    4 S.W.3d 124
    Supreme Court of Arkansas
    Opinion delivered November 11, 1999

      Roberts Law Firm, by: Bud Roberts and Kimberly Johnson, for appellants.

      The Cortinez Law Firm, P.L.L.C., by: Christopher D. Anderson, for appellee.
   DONALD L. Corbin, Justice.

This is an appeal of a decision by stice. Compensation Commission (Commission) that Appellee Marty Freeman suffered a compensable injury. After the Arkansas Court of Appeals affirmed the Commission’s decision, Appellants Continental Express, Inc., and Gibraltar National Insurance Company petitioned this court for review. We granted their petition for review pursuant to Ark. Sup. Ct. R. 1-2(e). We hold that Appellants’ argument is without merit and affirm.

The record reflects that Appellee sustained a lower back injury on March 25, 1996, in the course of his employment with Continental Express. Appellee immediately reported the accident to his supervisor and then sought medical attention. Appellee’s doctor advised him to take time off from work, prescribed physical therapy, and referred him to an orthopedic surgeon. The orthopedic surgeon treated Appellee with steroid injections and prescribed further physical therapy. During the course of his physical therapy, the physical therapist observed that Appellee was suffering from muscle spasms. Appellee then underwent an MRI on May 14, 1996, but it was determined that he would not benefit from lumbar disc surgery.

Appellant Continental Express initially accepted the injury as compensable and voluntarily paid Appellee total disability benefits through December 4, 1996. Thereafter, when Appellee sought additional benefits, Appellants controverted the claim in its entirety on the grounds that there were no objective findings to support a compensable injury. An administrative law judge (ALJ) determined that the physical therapist’s reports of muscle spasms did not constitute objective medical evidence as required under Ark. Code Ann. § 11-9-102(16) (Supp. 1997). The ALJ’s findings were subsequently reversed by the Commission. The Commission found that the physical therapist had observed muscle spasms, and that Appellee had proved by a preponderance of the evidence that he sustained a compensable injury. The Commission denied Appellee additional temporary disability benefits, however, finding that he had failed to prove that he was receiving active treatment or was unable to work.

Appellants appealed the Commission’s decision to the court of appeals, arguing that the Commission erred in interpreting and applying section 11-9-102(16). The court of appeals affirmed the decision of the Commission in Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). The court of appeals held that the Commission correctly found that muscle spasms constitute objective findings for the purpose of establishing compensability.

Upon a petition for review, we consider a case as though it had been originally filed in this court. Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). We view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Pickett, 336 Ark. 515, 988 S.W.2d 3; ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

The issue now before us is whether there was substantial evidence to support the Commission’s decision that Appellee’s injury was proven by medical evidence supported by objective findings. Appellants assert that both the Commission, as well as the court of appeals, erred in its interpretation and application of section 11-9-102(16). This section provides in relevant part:

(16)(A)(i) “Objective findings” are those findings which cannot come under the voluntary control of the patient.
(ii) When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings.
(B) Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certaintyf.]

Appellants set forth two arguments in support of their contention that section 11-9-102(16) was not correctly interpreted: (1) Appellee’s muscle spasms were not objectively found; and (2) a physical therapist is not qualified to state a medical opinion within a reasonable degree of medical certainty.

In addressing Appellants’ argument that muscle spasms do not constitute objective findings, the Commission relied on its previous determination that muscle spasms constitute objective findings. The Commission further pointed out that the court of appeals has held that muscle spasms constitute objective findings. In University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997), the court of appeals adopted the following definition of “spasm” in finding that muscle spasms constitute objective findings:

1. An involuntary muscular contraction. ... 2. Increased muscular tension and shortness which cannot be released voluntarily and which prevent lengthening of the muscles involved; [spasm] is due to pain stimuli to the lower motor neuron.

Id. at 19, 958 S.W.2d at 549 (quoting Stedman’s Medical Dictionary 1304 (23d ed. 1976)). See also Kimbrell v. Arkansas Dep’t of Health, 66 Ark. App. 245, 989 S.W.2d 570 (1999); High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). We conclude that the court of appeals’ reasoning in Hart and its progeny is persuasive, and we therefore adopt the holding that muscle spasms constitute objective findings as required by section 11—9— 102(16).

Our analysis of this matter does not necessarily end with a determination that muscle spasms constitute objective findings. Appellants also attempt to argue that the only record of Appellee’s muscle spasms were recorded in connection with his history and physical complaints and were not the result of objective findings by the physical therapist. We agree with the Commission that this argument is without merit.

The Commission’s opinion reflects that after reviewing the physical therapist’s records, the greater weight of evidence supported a finding that the physical therapist observed muscle spasms and proceeded toward the goal of decreasing the symptoms of those spasms. As the Commission pointed out, the physical therapist documented an occurrence of muscle spasms on March 29, 1996, under “O” (objective). An occurrence of muscle spasms was also documented on April 2, 1996, but the following day’s entry reflects that there were no spasms present. Finally, on April 4, 1996, the physical therapist noted under “O” the absence of muscle spasms.

Appellants argue that these progress notes are not reliable on their face because they are sloppy and it is not clear which findings are objective and which are simply subjective reports of Appellee. The Commission found this argument to be unpersuasive. It is well settled that upon review by this court, it is not a matter of whether we would come to a different conclusion, but whether reasonable minds could reach the Commission’s conclusion. Wal-Mart Stores, Inc. v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Pickett, 336 Ark. 515, 988 S.W.2d 3. Nothing in the physical therapist’s progress notes indicate that the muscle spasms were recorded as anything other than an objective finding made by the physical therapist. The letters “S” and “O” were used to differentiate between objective findings and subjective reports by Appellee. After reviewing the record, we hold that there was substantial evidence to support the Commission’s determination that the muscle spasms constituted objective findings.

Appellants make a final attempt to attack the validity of the determination that muscle spasms are objective findings by arguing that a physical therapist is not qualified to state a medical opinion within a reasonable degree of medical certainty. Arkansas Code Annotated § 11-9-102(5) (D) (Supp. 1997) requires that a compensable injury be established by medical evidence, supported by “objective findings” as defined in section 11-9-102(16). In the present matter, Appellee submitted medical evidence to the Commission that included his MRI report, doctors’ reports diagnosing him as suffering from sciatica and lumbar strain, as well as doctors’ reports of a herniated disc. In turn, this medical evidence was supported by the objective findings of muscle spasms.

Nothing in section 11-9-102(16) requires such medical evidence to come in the form of a medical opinion stated within a reasonable degree of medical certainty. In affirming the Commission, the court of appeals pointed out that no Arkansas court has ever held that an objective finding is synonymous with or based on a medical opinion. Appellants attempt to use the language found in section 11-9-102(16) (B) to confuse the issue at hand. That section requires that medical opinions addressing compensability and permanent impairment be stated within a reasonable degree of medical certainty. The physical therapist’s opinion that Appellee suffered from muscle spasms was rendered in connection with treatment for his injury and constitutes objective findings of that injury. It was not rendered for the purposes of addressing compensability or permanent impairment, thus Appellants’ argument is without merit.

On a final note, the Commission has found that a physical therapist would be able to recognize muscle spasms and that there is nothing in the Workers’ Compensation Act to limit objective findings to those findings made by a physician. ,We agree with the Commission’s determination that a physical therapist is certainly trained to observe muscle spasms.

Appellants also argue that Appellee’s post-injury MRI results were identical to a pre-injury MRI and, thus, Appellee did not present objective findings establishing that he sustained a compensable injury. This argument need not be addressed in light of our determination that the evidence regarding muscle spasms constitutes objective findings in support of a determination that Appellee suffered a compensable injury. We thus affirm the Commission’s decision.


author: ROBERT L. Brown, Justice.

text:
    Gerlinda MARTIN and Earl E. Martin v. James ARTHUR, M.D., Allan C. Gocio, M.D., and Hot Springs Neurosurgery Clinic, P.A., and Calcitek, Inc.
    99-302
    3 S.W.3d 684
    Supreme Court of Arkansas
    Opinion delivered November 11, 1999

      Wise Law Firm, by: George R. Wise, Jr., for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, RL.L.C., by: Lyn P. Pruitt and Mark N. Halbert, for appellee Calcitek, Inc.

      Friday, Eldredge & Clark, by: William M. Griffin III and Jason B. Hendren, for appellees James Arthur, M.D., Allan Gocio, M.D., and Hot Springs Neurosurgery Clinic, P.A.
   ROBERT L. Brown, Justice.

Appellants Gerlinda Martin stice. are wife and husband, appeal the trial court’s order of summary judgment in favor of appellees James Arthur, M.D., Allan Gocio, M.D., and Hot Springs Neurosurgery Clinic, P.A., and the order of dismissal in favor of appellee Calcitek, Inc. The Martins contend that the trial court erred in not acknowledging that fraud and fraudulent concealment had tolled the medical malpractice statute of limitations in the case of the physicians and clinic and that the trial court further erred in finding that the product-liability statute of limitations had run in the case of Calcitek. We affirm the order of summary judgment relating to the physicians and the clinic. We reverse the trial court’s order with respect to Calcitek and remand for further proceedings.

On December 5, 1991, Gerlinda Martin underwent a cervical spine fusion. Dr. Gocio, with the assistance of Dr. Arthur, performed the surgery and used a hydroxylapite known as Orthoblock as an artificial ceramic block between her vertebrae. On June 24, 1993, the Orthoblock was surgically removed. On September 17, 1996, the Martins filed a complaint against Doctors Gocio and Arthur and the Neurosurgery Clinic and asserted claims of medical malpractice, battery, fraud, fraudulent concealment, outrage, and loss of consortium, all in connection with the 1991 implantation of the Orthoblock. They alleged that Orthoblock was a bone graft substitute used in dental procedures and was experimental when used in cervical fusions. They also claimed that Calcitek, the manufacturer and supplier of Orthoblock, knew or should have known that its product was being used in back operations. They further asserted that Orthoblock was brittle and fractured easily and, as a result, was defective and unreasonably dangerous for use in cervical fusions.

Doctors Gocio and Arthur and the clinic moved for summary judgment on the grounds that the negligence suit against them was barred by the statute of limitations. Calcitek also moved to dismiss the Martins’ complaint because the limitations period had run. The trial court granted both motions in separate orders. The Martins appealed the trial court’s orders to the court of appeals, and that court affirmed. Martin v. Arthur, 65 Ark. App. 276, 986 S.W.2d 143 (1999). On April 15, 1999, this court granted the Martins’ petition for review. •

I. Medical Malpractice

The Martins first urge that fraud and fraudulent concealment should have tolled the statute of limitations with respect to the claims against Doctors Gocio and Arthur and the clinic, including medical malpractice. Primarily, they contend that fact questions remain to be resolved concerning the alleged fraudulent concealment perpetrated by Dr. Gocio, who failed to inform Gerlinda Martin of the risk involved in the Orthoblock implantation. They assert that he was, in fact, conducting an experimental procedure by implanting Orthoblock in her spine. According to the Martins, he never told her that he was using Orthoblock.

When this court grants review following a decision by the court of appeals, we review the case as if it had been originally filed in our court. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). The issue in this case is whether the trial court erred in granting summary judgment to the physicians and the clinic. In Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998), this court stated the standard of review for a grant of summary judgment:

The law is well setded 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. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189 (1998). 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 appellate 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 ah 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. Id.

Adams, 333 Ark. at 62, 969 S.W.2d at 602.

We then discussed the statute-of-limitations defense:

When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. First Pyramid Lfe Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), cert, denied, 510 U.S. 908 (1993). However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. Fraud suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. First Pyramid, supra. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995).

Adams, 333 Ark. at 63, 969 S.W.2d at 602-603.

Following these discussions, we proceeded in Adams to address what constitutes fraudulent concealment. In order to toll the statute of limitations, we said that the plaintiffs were required to show something more than a continuation of a prior nondisclosure. We said that there must be evidence creating a fact question related to “some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself.” Adams, 333 Ark. at 68, 969 S.W.2d at 605, quoting Norris v. Bakker, 320 Ark. 629, 633, 899 S.W.2d 70, 72 (1995).

In the case before us, Gerlinda Martin submitted an affidavit in opposition to summary judgment in which she enumerated her bases for claiming fraud. In examining the twenty assertions she makes, we conclude that they all related to a failure of the physicians and clinic to inform or disclose. None of the points rise to the level of a positive act of fraud. Rather, they represent and support a continuation of prior nondisclosure which we made clear in Adams is insufficient to raise a fact question relative to fraudulent concealment.

We affirm the trial court’s grant of summary judgment.

II. Product Liability

The Martins next claim that a fact issue exists regarding when Gerlinda Martin knew that she was harmed by Orthoblock. According to their theory, the date of the Orthoblock implantation in 1991 should not be the starting point for the running of the statute of limitations. They contend that the statute should start to accrue when she learned the nature of the harm that had been done to her. We agree.

We review a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. See Efurd v. Hackler, 335 Ark. 267, 983 S.W.2d 386 (1998). A trial court need only look to the allegations in the complaint to decide a motion to dismiss. Id. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint. See Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998).

The statute of limitations for product-liability actions reads: “All product liability actions shall be commenced within three (3) years after the date on which the death, injury, or damage complained of occurs.” Ark. Code Ann. § 16—116—103 (1987). Relying on this statute, the trial court found:

6. Because Plaintiffs complain of alleged damage caused by improper implantation of “Orthoblocks,” any cause of action for personal injury began to accrue as of the date of surgery in December 1991.
7. Therefore, the filing of Plaintiffs’ cause of action on September 17, 1996, was outside the applicable three year statute of limitations for products liability actions.
8. The Court also finds that Plaintiffs’ cause of action is not saved by the ‘discovery rule’ as the Arkansas Supreme Court has declined to adopt such a rule in products liability cases.
9. Even if Plaintiffs’ cause of action for products liability could be tolled by the “discovery rule.” Plaintiffs should have known of the alleged damage well before September 17, 1993.

This court has had occasion to discuss the three-year statute of limitations in a product-liability case. See Spickes v. Medtronic; Inc., 275 Ark. 421, 631 S.W.2d 5 (1982). In Spickes, a defective pacemaker manufactured by Medtronic was implanted in Spickes in 1975. On October 5, 1977, the pacemaker was removed and replaced by a new pacemaker, also manufactured by Medtronic. At that time, Spickes knew that the original pacemaker had been defective. In 1980, Spickes learned more about the defectiveness of the 1975 pacemaker. On October 28, 1980, he sued Medtronic for damages caused by the defective pacemaker which was more than three years after the removal surgery. Medtronic pled the three-year statute of limitations and moved for summary judgment. The trial court granted summary judgment and found that the statute of limitations barred Spickes’s suit. This court affirmed the trial court, and said:

Medtronic committed no tortious act in 1980; Spickes simply found out more about what had been done three years earlier. The statute of limitations begins to run when the negligent damage occurs, not from the time the full extent of the injury is ascertained. Field v. Gazette Publishing Co., 187 Ark. 253, 59 S.W.2d 19 (1933). Moreover, for the reasons given in Lisenby v. Farm Bureau Mut. Ins. Co., 245 Ark. 144, 431 S.W.2d 484 (1968), a single cause of action cannot be split. Spickes knew in 1977 that the first pacemaker was faulty; he cannot manufacture a second cause of action on the basis of additional information he learned three years later. (Emphasis added.)

Id. at 423, 631 S.W.2d at 6-7. The language quoted above appears internally inconsistent and is not a model of clarity. We referred to the date of “negligent damage” as the beginning date, which indicated there must be some damage to the patient for the statute to commence running. And we cited as authority a negligence case (Field v. Gazette Publishing Co., supra), which dealt with the statute of limitations for negligence. It is well settled that the statute in negligence cases begins .to run from the date the negligent act is committed. See Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997); Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996). We then went forward and referenced the date when Spickes learned of the defective pacemaker in 1977 as being the pivotal date. The statute of limitations involved in Spickes was the product-liability statute enacted as part of the Product Liability Act in 1979. See 1979 Acts 511. Thus, it appears that we stated in Spickes that the limitations period commenced running when he learned of the damaged pacemaker in 1977 and that he could not manufacture a second cause of action in 1980 based on new information. That has certainly been the interpretation of Spickes by other courts and commentators. See, e.g., Mulligan v. Lederle Laboratories, 786 F.2d 859 (8th Cir. 1986); Lack of Knowledge of Product’s Defect, 91 A.L.R.3d 991 (1999 Supp. p. 69).

Subsequent to our decision in Spickes v. Medtronic, Inc., supra, the Eighth Circuit Court of Appeals discussed Spickes in connection with a federal-product liability action. See Mulligan v. Lederle Laboratories, supra. Though not precedent for this court, we find the Eighth Circuit’s analysis to be instructive. In Mulligan, the plaintiff (Mulligan) brought a product-liability action against the defendant drug manufacturer (Lederle), which produced Varidose to break up blood clots. The drug eventually caused chronic kidney problems (nephritis) in Mulligan. She sued, and a jury awarded Mulligan compensatory and punitive damages. On appeal, Lederle contended that Mulligan’s cause of action was barred by the Arkansas product-liability statute of limitations. The Eighth Circuit disagreed and held that Mulligan’s action was not barred. In reaching this conclusion, the court first looked to the limitations statute (§ 16-116-103) and observed:

The statute clearly rejects the concept found in some older Arkansas cases that a cause of action accrues when the tort is complete; for example in an automobile accident case “at the moment the car was turned over,” Faulkner v. Huie, 205 Ark. 332, 336, 168 S.W.2d 839, 841 (1943). Obviously the plaintiff must suffer some harm before the new limitations period starts to run. This also contrasts sharply with the wording of the two-year limitations period for medical malpractice, which begins at “the date of the wrongful act complained of, and no other time.” Ark. Stat. Ann. § 37-205 (emphasis added).

Id. at 862.

The Eighth Circuit next discussed the Spickes decision and concluded that this court held that the time the limitations period begins to run in a product-liability case is when there is a manifestation of harm to the plaintiff. The court discussed the necessary level of manifestation of that harm, recognizing that this court in Spickes concluded that knowledge of the full extent of the injury was not required. The Eighth Circuit then looked to one of its previous cases, Schenebeck v. Sterling Drug Co., 291 F. Supp. 368 (E.D. Ark. 1968), aff’d 423 F.2d 919 (8th Cir. 1970), for guidance on the subject. In Scheneheck, the plaintiff had taken arthritis medication for five years (1958-1963). She had experienced temporary blurring of her vision, but it was not until 1966 that she realized her eyes had been permanently damaged. The federal district judge acknowledged the slow and insidious side effect of the medication and suggested that the moment the statute of limitations began to accrue was when the plaintiff became aware of her condition, that is, when she knew she had been permanently damaged by the medication. Using the Scheneheck reasoning, the Eighth Circuit concluded in Mulligan that a slight manifestation of harm can begin the running of the statute, if the manifestation reveals the nature of the harm. The court acknowledged that knowing the nature of the harm was not the same as knowing the full extent of the harm, which this court held in Spickes was not required.

Though there is not unanimity in other jurisdictions as to when the statute of limitations begins running in product-liability cases, courts generally agree that when injury is suffered from a product without perceptible trauma to the plaintiff, no action in tort begins to accrue until the plaintiff knew, or by the exercise of reasonable diligence should have discovered, the cause of the injury. See, generally, Jane Massey Draper, Annotation, Lack of Knowledge of Product’s Defect, 91 A.L.R.3d 991, 994-995 (1979). An illustration of this reasoning is found in the intrauterine-device cases. Various courts have concluded that the cause of action accrued not at the time of manufacture of the product or when the device was inserted in the plaintiff, but rather when the injury was made known to the plaintiff. See, e.g., Kristeller v. A.H. Robbins, Inc., 560 F. Supp. 831 (N.D. NY 1983); Fitzpatrick v. A.H. Robbins, Inc., 99 A.D.2d 478, 470 NY S.2d 414 (1984); Hansen v. A.H. Robbins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983).

We adopt the reasoning of the Eighth Circuit in Mulligan and agree with its analysis of the Spickes case. We hold that in product-liability cases, the statute of limitations under § 16-116-103 does not commence running until the plaintiff knew or, by the exercise of reasonable diligence, should have discovered the causal connection between the product and the injuries suffered. This is the discovery rule, and applying it to the case at hand where there is a genuine issue of material fact regarding discovery, the trier of fact must determine when Gerlinda Martin was first made aware of the nature of the harm caused by Orthoblock or, alternatively, when she should have discovered the causal connection, for the statute of limitations to begin to run. As we said in Spickes, the full extent of the harm is not required; indeed, the manifestation of the nature of the harm done to her may be slight. Other jurisdictions concur that when there is an issue of fact over discovery, this is for the trier of fact to resolve. See, e.g., Freedman v. Medtronic, Inc, 171 A.D.2d 499, 567 N.Y. S.2d 421 (1991) (issue of material fact existed over when heart pacemaker malfunctioned which precluded summary judgment in favor of the manufacturer based on statute of limitations); Aspegren v. Howmedica, Inc., 129 Ill. App. 3d 402, 472 N.E.2d 822 1984) (summary judgment inappropriate when issue was whether cause of action accrued when plaintiff saw x-ray of fractured metal hip prosthesis or after it was removed and plaintiff had an opportunity to examine it); Perlov v. G.D. Searle & Co., 621 F. Supp. 1146 (D.C. Md. 1985) (question of fact as to whether cause of action accrued when plaintiff first developed infection from intrauterine device).

By using the date of the implantation of the Orthoblock in 1991 as opposed to Gerlinda Martin’s awareness of the nature of the harm, the trial court’s order of dismissal runs counter to this analysis. In deciding a 12(b)(6) motion, the trial court looks only to the allegations in the complaint and accepts them as true. See Efurd v. Hackler, supra. We conclude that Calcitek’s statute-of-limitations defense is not resolved by the allegations in the Martins’ complaint.

But there is another aspect to the trial court’s order. In the Martins’ response to Calcitek’s motion to dismiss, Gerlinda Martin attached affidavits averring that she did not learn about any injury caused by Orthoblock until 1996. In its reply to the Martins’ response and brief, Calcitek attached medical reports and a newspaper article as exhibits to support its position that Gerlinda Martin had to know about the dangers of Orthoblock much earlier. We cannot tell from the dismissal order whether the trial court considered these matters which were extraneous to the complaint, but the trial court did find that Gerlinda Martin should have learned about Orthoblock’s defectiveness more than three years before the Martins filed their complaint. This suggests that the trial court looked beyond the complaint in making this finding of fact and treated Calcitek’s motion, in effect, as one for summary judgment. See Ark. R. Civ. P. 56(c); Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998); McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998); Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). In Clark v. Ridgeway, supra, we stated that we would presume that such outside matters were considered by the trial court unless specifically excluded by the court and that the dismissal order was in fact one for summary judgment. We also said in Clark that mere exhibits attached to briefs should not be considered by the trial court for summary-judgment purposes. Assuming that the trial court converted Calcitek’s motion to dismiss into one for summary judgment, there is clearly a genuine issue of material fact presented over when Gerlinda Martin discovered the harm done to her, thus rendering summary judgment at this stage inappropriate. See, e.g., Freedman v. Medtronic, Inc., supra; Aspegren v. Howmedica, Inc., supra; Perlov v. G.D. Searle & Co., supra.

We conclude that the Martins have stated a cause of action for product liability against Calcitek, and that the date the Orthoblock was implanted in 1991 has not been shown to be the date when Gerlinda Martin learned of the harm done to her. Moreover, whether the revelation of the nature of the harm done to Gerlinda Martin occurred more than three years before the filing of the Martins’ complaint is a disputed issue of material fact. We reverse the order of dismissal and remand the complaint against Calcitek for further proceedings.

The Martins also contend that they did not waive their breach-of-warranty claim against Calcitek by failing to give notice prior to filing their complaint pursuant to Ark. Code Ann. § 4-2-607(3)(a) (Repl. 1991). Calcitek’s .motion to dismiss referred to both the product-liability claim and the breach-of-warranty claim. However, in granting the motion, the trial court did not specifically rule on the breach-of-warranty dispute. Hence, this court will not consider the matter, as the issue has been waived for purposes of appeal. See Craig v. Taylor, 323 Ark. 363, 915 S.W.2d 257 (1996); Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995); Oglesby v. Baptist Med. Sys., 319 Ark. 280, 891 S.W.2d 48 (1995).

Affirmed in part. Reversed and remanded in part.

Glaze and Corbin, JJ., not participating.

Special Justice K. LeAnne Daniel joins.

Special Justice NORMAN MARK KLAPPENBACH joins.

       In their respective briefs, the Martins refer to the order of dismissal as one for summary judgment while Calcitek calls it an order of dismissal.


text:
    Wayne SPEARS, Individually and as Parent, Guardian, and Next Friend of Minor Child, Reuben Spears, and as Parent and Administrator of the Estate of Rebekah L. Spears and Reuben Spears v. Barbara SPEARS
    99-477
    3 S.W.3d 691
    Supreme Court of Arkansas
    Opinion deHvered November 11, 1999

      Winona Griffen, for appellant.

      Huckabay, Munson, Rowlett & Tilley, BA., by: Jane M. Yocum and Bruce Munson, for appellee.
   ROBERT L. Brown, Justice.

This appeal involves the ustice. which was applied to this case and which prevented appellant Wayne Spears from suing his ex-wife, appellee Barbara Spears, for negligence. Wayne Spears claims on appeal that (a) the parental immunity doctrine is unconstitutional, (b) the doctrine discriminates against an innocent class of people, and (c) the doctrine violates freedom to contract and public policy. Given the facts of this case and the legal arguments made, we decline to overrule the parental immunity doctrine and affirm the order of the trial court.

On April 11, 1998, Rebekah Spears, age 15, was killed in a car wreck in Jefferson County. Her mother, Barbara Spears, was driving the car in which Rebekah, a passenger, was killed. As a result, Wayne Spears brought a wrongful death action for negligence against Barbara Spears. He sued individually; as parent, guardian, and next friend of his minor child, Reuben Spears; and as the administrator of the estate of Rebekah Spears. He asked for $1,200,000 in damages for her negligence and also sought punitive damages for willful and wanton conduct. He further sought a declaratory judgment to declare the parental immunity doctrine unconstitutional as applied to the minor children in this case.

Barbara Spears answered and pled that the claims in the complaint were barred by parental immunity, that the complaint failed to state a claim for willful and wanton conduct, that the request for punitive damages violated the Arkansas Constitution, and that Wayne Spears was attempting to inject issues of contract into a tort action. She also filed a motion to dismiss the complaint and asserted that no facts were set out in the complaint to sustain a claim of willful and wanton behavior for punitive damages and that the parental immunity doctrine foreclosed a cause of action in negligence. The trial court entered an order granting the motion to dismiss.

Wayne Spears first contends in his appeal that the trial court erred in dismissing his negligence cause of action because the doctrine of parental immunity is unconstitutional. He specifically urges that the doctrine violates the constitutional rights of unemancipated minors to equal protection of the laws under the Fourteenth Amendment. To support his contention, he mounts a legion of arguments.

First, he points out generally that the parental immunity doctrine is slowly eroding in this country and that the trend is toward partial abrogation of the principle. He observes that in connection with this trend, the doctrine of spousal immunity for unintentional torts was abrogated in Arkansas in 1957. See Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957). He argues, in addition, that parental immunity is limited to transactions that are essentially parental and that the operation of a motor vehicle is not an essential. parental activity. He notes that one justification for the doctrine is to insure family harmony, but he asserts that in the case of divorced parents, the rationale of family harmony should not prevent an ex-husband from suing an ex-wife for the negligent death of his daughter. He also maintains that while family harmony might prevent a child’s suit against a parent for negligence, it should not prevent an action by the estate of a deceased child against a living parent. It is a fiction, he contends, that one family member is suing another family member, when in reality it is one family member suing the insurance company that carried the liability coverage on the other. Finally, he points to the fact that Rebekah died in the car wreck; thus, family harmony between Rebekah and her mother is not an issue.

We initially review the development of the parental immunity doctrine in this state. In 1938, this court first addressed the matter of parental immunity when an involuntary tort was involved. See Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938). We held in Rambo that an unemancipated minor may not maintain an action for an involuntary tort against his parent in this state. We emphasized that the preservation of family unity and the interest of society in maintaining the character of its homes were policy justifications for the principle.

In 1980, we held that an unemancipated minor may not hold a parent or a person standing in loco parentis hable for an involuntary tort committed against him. See Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980). In Thomas, we said: “We are not persuaded by appellant’s contentions that the family immunity doctrine has become a legal anachronism. Nor do we believe that the policy considerations of family harmony and prevention of collusion and fraud are no longer valid.” 268 Ark. at 223, 594 S.W.2d at 854.

In Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), we carved out an exception to the doctrine. There, a father became intoxicated and drove a vehicle, while intoxicated, with his child as a passenger. A car wreck ensued which resulted in the death of the father and injury to the child. The mother, on behalf of the injured child, sued and claimed that the injuries were caused by the willful, reckless and intentional actions of the intoxicated father. We agreed and noted in our opinion that thirteen .states had abrogated the doctrine where motor vehicle accidents were concerned. We concluded that the father’s actions were willful and that “it is clear that a willful tort is beyond the scope of the parental immunity doctrine as it is applied in Arkansas.” 276 Ark. at 238, 633 S.W.2d at 370.

In Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986), we repeated that a parent or person acting in loco parentis is immune from suit for an unintentional injury to his child, but not for an intentional injury to his child. In Carpenter, the issue was whether a viable fetus born dead after a car accident has a cause of action against a mother who was driving at the time and negligently caused her own death as well as the death of the fetus. We held that the fetus did not. Justice George Rose Smith concurred and said “[t]he doctrine of parental immunity still governs in Arkansas negligence law, but it takes little prophetic ability to realize that the doctrine’s life expectancy is short.” 290 Ark. at 426-47, 720 S.W.2d at 300.

Most recently, we upheld the doctrine of parental immunity in Robinson v. Robinson, 323 Ark. 224, 914 S.W.2d 292 (1996). In Robinson, we concluded that the doctrine applied to prevent a cause of action where a daughter sued her mother for negligence in failing to prevent sexual abuse by her father.

We are aware that while some jurisdictions like Arkansas have retained the parental immunity doctrine, other jurisdictions have either abandoned the doctrine totally or recognized a variety of exceptions to it. See, generally, Romualdo P. Eclavea, Annotation, Liability of Parent for Injury to Unemancipated Child Caused by Parent’s Negligence - Modern Cases, 6 A.L.R. 4th 1066 (1981). Nevertheless, Wayne Spears does not present this court with a convincing or cogent argument for overruling its precedent of over sixty years. He states, in conclusory fashion, that thirty states have allowed suits against parents involving automobile accidents but cites no caselaw to support the conclusion and otherwise provides us with a paucity of cases to warrant changing our common law. We do not overrule our common law cavalierly or without giving considerable thought to the change. See Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999).

This court has in the past announced its willingness to revisit and reexamine our holdings on a given issue. See, e.g, Dawson v. Gerritson, 290 Ark. 499, 720 S.W.2d 714 (1986). By this opinion, we announce our intention to reexamine the parental immunity doctrine at the next appropriate opportunity.

Wayne Spears raises two other points for appeal, neither of which we are able to address. The first is that by preventing minors from bringing suits against family members and their liability carriers, this court has unreasonably discriminated against those minors. Second, he contends that the family member exclusion violates the freedom to contract and the public policy behind mandatory liability coverage. See Ark. Code Ann. § 23-89-202 (Repl. 1992). He presents, however, no convincing argument or authority for these propositions but only raises them as conclusory points. We will not address issues on appeal that are not appropriately developed. See Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999). Moreover, we cannot reach these issues because no allegation of Barbara Spears’s liability insurance coverage was made in the pleadings before the trial court, and the trial court granted a motion to dismiss based on the pleadings. We do not address issues on appeal which the trial court has had no opportunity to consider. See Dellinger v. First Nat’l Bank of Russellville, 333 Ark. 460, 970 S.W.2d 223 (1998).

Affirmed.