*1 ARKANSAS STATE HIGHWAY COMMISSION Eargle PHILLIPS, et ux S.W. 5-5769 2d 27 Opinion 27, 1972 delivered March Gowen, Thomas B. N. Keys Philip for ap- pellant.
B. W. Howard and Segars, appellee. Jack Appellant contends A. Fogleman, Justice. John *2 appellee judgment in favor of the we should reverse landowner eminent domain case because in this appellee H. judge permitted call as witness to a circuit employed by appellant appraiser McMurrough, K. a staff testimony, through show, had made his that he to and an was not property appellant appraisal but of the involved being The trial as witness on its behalf. called pertinent part, ruling appellant’s objection, in court’s was:
** may McMurrough, witness, *the be called to may questions be stand and bring made, asked which any have that he out factual observations assuming appraisal an that he did make property. this
* * permitted for the will be *Counsel landowners past identify McMurrough to with reference to his permitted employment; present in- to will be quire opinion cerned; not, to, whether or he did submit as property con-
as his of the valuation permitted him to ask but will not be of. this consisted dollars and cents what submission ruling, making I that under In am mindful law that a witness is available the Arkansas where subject employment to a reason party’s control, a to call to the direction and failure issue, witness, that with reference fact presumption a creates what has stated that his adverse to the would be that, appears who have called him. It to me could “presumption” is not that which is referred to as a presumption presumption law, but lather a is pro- fact, be more which rebuttable and would ** perly termed an inference.* 27, 1968, was filed suit and on the pos- June granted appellant immediate same date session court upon finding compensation estimated just by registry appellant had been filed to the involved here court. That estimate as lands appellant’s taking $2,250. stated in declaration of September granted appellees’ petition 1968, the court payment deposit specifically them, stating payment prejudice ap- was made without pellees’ they contention that were entitled to additional compensation appellant’s right contend, or to if it elect, question should so that the tracts in have a value $2,250. of less than ruling hearing upon The court’s was made after a
appellant’s Murrough objection quash subpoena motion to issued for Mc- appellees. simply That motion raised appellees had failed to tender fees to expenses witness for travel and for loss of time from *3 occupation. objection his An oral was then made to appellees’ attorney asking ques- the witness to answer expert, payment tions as without of an witness Appellees’ fee. counsel then stated that he did not propose any questions relating to ask the witness to his professional opinion, planned current Murrough but to ask Mc- original appraisal
if he had not made the and, just tract, so, if the amount of estimated com- pensation reported highway department, he to the appel- the information he furnished to it and whether appear lant had told him not to as a at this witness previous Appellant one, trial and a unless coerced. then proper appellees stated that it was to ask opinion, witness to state his him to but to ask identify employer his or to otherwise disclose that Mc- Murrough highway department. worked ruling made, court’s was then but court ordinary first ordered that witness fees be tendered. At appellees’ trial the state contended that benefits to remaining in lands the unit from which some acres 8.36 damages were taken exceed the suffered.
Appellees by McMurrough’s testimony: showed property involved, lines the witness unit appraisal had before the was filed which made an suit depart- superiors highway was submitted to his highway ment, poena not sub- and that the commission did appear the trial. direct him or direct him to at On told of examination subsequent witness also his initial inspections making property, of his study doing a market research values and record contacting objection made to the landowners. No was any inquiry on direct examination.
Appellant’s with- counsel cross-examined witness any objections. The cross-examina- out reservation original appraisal February tion his made revealed that May Appellant’s at- had been revised 1968. specific torney inquired he then whether had checked examination, sales. On the witness disclosed redirect comparable making that he had used three sales appraisal, by appellees to one of which was a contract per $3,000 sell two acres at acre. were also Answers given questions Again there about three other sales. objection by any appellant question an- was no swer. We find that the not reversible court’s action was error and affirm. fundamentally, lawsuit,
The trial of should be a correct judge search for truth. The eminent circuit stating holdings relating the effect of our peculiarly failure of a to call aas witness one *4 is, possessed available to him be, who or should of knowledge material to an in the issue case. Abbott v. Prothro, 230, Ark. 228 S.W. 307 v. v. 2d 225. Broomfield 355, Lynch Broomfield, Stephens, Ark. 242 413 S.W. 2d 657. 118, 257; Ark. 14 179 S.W. McLendon 2d Johnson, 218, v. 309; Ark. 243 419 S.W. Saliba v. 2d Saliba, 250, 774; 178 Ark. 11 S.W. Farm Southern 2d Bureau Cas. Ins. Co. McGibboney, v. 1016, Ark. 436 245 824; Elby, S.W. 2d Reliable Insurance Co. v. 247 Life 514, 215; Ark. 446 836, S.W. Jones, 2d v. Ark. 227 Jones 737; 301 Casey, S.W. 79, 2d v. 190 Ark. 77 Rutherford 58; Mortgage S.W. 2d United States Bond & Red Co. v. dick, 82, 199 also, Ark. 133 S.W. See 23. Farmer v. 2d Smith, 638, Ark. 227 300 Broomfield, S.W. In 2d 937. unexplained we said that the failure of a special knowledge witness with aof raises transaction presumption (or inference) that the would citing Casey, supra; unfavorable, v. Rutherford
210 v. Company v. and National Jones, supra; Life Jones 1088, Brennecke, 855. S.W. 195 Ark. 115 2d knowledge the peculiar decisions of these some qualifica his particular based upon the witness of him fields qualifying in certain or expertise tions the issues pertinent matters of the knowledge have by him. discovered facts and interpret to evaluate who aid this are witnesses Witnesses such as on issues. intelligent to draw an conclusion 576; 554, Pribble, Ark. 166 S.W. v. 112 City Jonesboro Inc., & Ark. Feed Farm 230 Supply, Shaver v. Parsons 357, Little, 690; 189 Co. v. Fireman's Ins. 322 S.W. 2d 640, 777; Louis, & Co v. Ry. I. M. S. Ark. S.W. St. 72 2d 113 As 215, 131; Ark. 168 Keefe, Equitable S.W. Life 480; Barton, 984, 96 2d Society surance Ark. S.W. 192 84, Co., Ark. H. Rouw Co. v. American Ry. Exp. 173 1001; & Co. v. Bridge S.W. Dardanelle Turnpike 291 Croom, 360; 284, 280, Ark. 95 S.W. 30 L.R.A. (n.s.) 129 358, & Fouke, T. C. Ins. Co. v. 94 Ark. 461. 799; S.W. also, 247, See Nelson v. Busby, Ark. S.W. 2d 511, Am. et Expert Wit seq., Opinion Jur. nesses, 16, 17, 18. §§ Professor has treated the of conduct Wigmore subject as evidence of II consciousness of weak Wig- cause. Edition, more Evidence et (Third 1940) seq., § He that such evidence to be con- says 277. would have cause, fined to the conduct of in the parties “since admission; them it at rate be receivable as an any by an assertion cause opponent offered him as an against implied admission.” Page He mentions conduct of criminal defendants 277. § and then adds:
But the sort of question suppression conduct — witnesses, evidence, bribery non-production evidence, a matter law receivable and the like —is *5 be civil and must therefore equally against parties, this broader use. treated light then, note It purposes is practical enough, conduct, kind of circumstantial though against guarded nature, is evidential misuse as its only predi- hearsay by using it, cases, when in civil party opponent, e., i. the treated when cated of * * admission;* as an could regards So far as the nature of the which conduct open inference, said, to this all that can be generalizing, broadly sorts, is that there are two indicating
first, conduct consciousness general, bribery, weakness the cause in destruc- — evidence, like; tion of and the secondly, indicating and, conduct a consciousness specific cause,— of the weakness of a element in the produce particular failure witness or docu- ment, and the like. (§§ 284) In the former is an inference 278— one,
indefinite the whole cause must be an employed unfounded one since such means are (§§ it; 292), sustain in the latter the inference 285— specific one, is a definite that the witness docu- or unfavorably ment bears on the cause. Wig- Professor evidence failure toAs page more, says: 162, 285, then § consciousness be, indicated conduct not an affecting indefinite one the weakness of the large, specific cause at concerning but a one particular defects of a element in the cause. bring failure to before the tribunal some circum- stance, document, witness, when either the opponent himself or his claims that the facts would thereby elucidated, indicate, serves to as the inference, most so,, natural that the fears to do and this fear is some evidence that the circumstance brought, or posed witness, ex- document or if have inferences, party. facts unfavorable to the These fairly sure, conditions; except upon to be cannot be made they open always certain are also explanation by circumstances which make some *6 party’s hypothesis than the more natural one a other propriety in- exposure. But the
fear of
general
not
in
is
doubted.
ference
expert
particular field of
reaches
author then
stating:
seq.,
testimony, page 177,
§
et
is
evidence
immaterial.
The kind of witness or
example, may
inference,
from
be drawn
employ
or a failure to
failure to use
testimony,
expert
samples
like instructive
or
or
evidence.
experiments
# # #
any
by
event,
inference
affected
In
away
showing
circum-
it
course
explain
failure
which otherwise account
his
stances
be no limitation
witness. There should
judge
explain, except
right
the trial
thus offered
that the circumstances
satisfied
logic
experience,
ordinary
would,
furnish
non-production.
plausible reason for
(supposing
evidence
the failure of
The inference
away)
tenor
explained
that the
is of course
to be
not
unproduced
specific
con-
evidence would
sup-
at
case,
least
to the
trary
party’s
words,
not affect
port
indefinitely
inference does
it. In other
cause,
as
does
of the
the merits
whole
277), but
(ante, §
when fraudulent conduct is involved
question.
specifically
the evidence
affects
given
subject
It seems clear from the treatment
Wigmore
Professor
that evidence conduct
failing
to call a witness is admissible. We have
particular question posed
found no case that treats introducing
here
to the method of
this evidence of
non-production
of an
witness on market value.
precedents closely enough
Yet there are
in-
related to
propriety
dicate the
of the trial
court’s
its
action.
approach
problem
Michigan Supreme
first
to the
Court,
Foltz,
85 Mich.
45 W. and auth- subject fully there cited. The entire is there orities rendering unnecessary. discussed, further mention here evidently recognizes error, he a the as The defendant In the has filed brief in this court. event no proper say competent new trial it is it that was witnesses, and for the these defense to introduce by by they prove the them that had called plaintiff prescribe to examine and for her. fail- The plaintiff ure of the a them as witnesses was
legitimate jury determining fact for the in mer- the physicians its of case. the One of the af- testified that plaintiff, ter he had been called and had exam- her, ined Folz, she told him that she had sued Mr. going and it, there was to be a over that lawsuit and testimony she would want him as a witness. This tyas compe- condition, had no reference to her tent. Such statements are not within the statute.
Later, applied precedent finding that court error in the refusal instruction, of an v. City Vergin saying: (1901), Saginaw, 125 Mich. 84 N.W. 1075 presented following defendant’s counsel request: appears “It Drs. from the that Sample McGregor made examinations of plaintiff a short time after she to have been claims injured. McGregor Dr. examinations, made two Sample Dr. They made one examination. were for purpose ascertaining physical her condition. Her plaintiff witnesses. called these has not given weight produce them such failure by
you you The record that fit.” stated discloses see request. correctly are facts Foley, N.E. Mass. McKim signed bond (1898), that he denial made the defendant’s principal signature issue genuineness on cross-examination It disclosed the case. was inquiry, specific objection to the over his defendant sig- alleged handwriting experts had examined two there contended It was in his behalf. nature testimony, permitting in instruct- judge erred trial thought weight might give ing as it bond proper had caused the the defendant the fact that experts not called who were two to be examined testify, *8 plaintiff’s permitting to com- counsel and upon upon ment nesses specific defendant’s failure to call wit- these testify opinions subject. as their on the appeal
contention on was that there should be a distinction between cases when the witnesses not called experts only express opinion, were who could and they those in which are witnesses to As material facts. grounds urged distinction, party it was that a judge could never know whether the trial find would qualified quali- the witnesses and that no evidence of the alleged experts offered, fications of these was ever compel ordinarily do not courts the attendance ex- of perts upon payment statutory party fees and the may expense procuring not be able to afford the their attendance, and that sometimes the witnesses are not willing express opinion. rejecting a definite In these arguments, the court said: on permitting opposing comment practice counsel party witnesses to call of the failure caution, such and with to be used needs to facts appears permitted it where be should comments procured, it and have could the witnesses party, conduct from the inference is a fair circumstances, that he knew or believed all
under adverse, testimony would witnesses of the that the produce them. v. did not Com. that reason and Finnerty, 162, 167, Mass. 19 N.E. Greater cau- 215. undoubtedly permitting should be used tion experts. it where the witnesses are But such comment experts known, happen well that the were present court, and have been consulted have been frequently during and his counsel yet they case, trial, In are not called. be might easily supposed, abe which can others fair witnesses because that the did inference not call them
he knew their good In such matters a deal be left adverse. must justice presiding at to the discretion of Exceptions the trial. overruled. actually applied by Wig-
We have the rule favored having given specific more to witnesses without recognition it. Watts State, Ark. identity rapist
S.W. of a was the material report issue. The defendant made efforts to obtain an FBI disclosing comparisons the result of hairs found guilty person a hood worn and those taken from the defendant’s head after his arrest. These efforts were filing unsuccessful because the trial court ruled that the reports required they would not be because were not admissible in evidence. On trial a state’s witness response questions by testified in defendant’s counsel that some of the defendant’s hair had been taken and along sent, hood, with hair taken from the the FBI. *9 objection The court sustained the state’s to defendant’s question report toas the in- substance of the FBI disregard any testimony structed the to a to comparative ority upon reversed, examination of hair. We auth- holdings permitting argument that failure of produce to witnessess to whom material facts produce competent evidence, were known or to available peculiarly power it within the of that when presumption so, evidence, if to do that the creates produced, would be unfavorable. We said: holding
We en- are that the defendant was report; holding titled to the F.B.I. but we are prejudicial the Trial committed error Court ruling being out all the evidence there such about concerning comparison report the defen- the
a dant’s hair by in the hood worn
with hair found the ruling by the Trial Court the Such assailant. arguing prevented to from the defendant’s counsel Jury anything to the failure of the State the about identity that was the most definite evidence of offer available * * * in this case. “disregard Jury to the told the When Court investigative comparative testimony about thereby prevented report”, the defen- the Court commenting Jury the on the dant’s counsel from failure of State defendant was entitled to have his present the evidence State identity. regarding might have offered
court-appointed argue Jury failure counsel allowed to offer such State evidence the Court’s ruling precluded argument. clearly recognized right litigant Watts,
In we of a adversary was not show his offer evidence to producing testimony witnesses consulted him. Chicago, Ry. King, 872, R. I. & P. Co. v. Ark. 931, recognition
197 S.W. 2d there is inferential of the propriety non-production of evidence of of medical experts. We said: ap-
Appellants the failure also contend army physi- testimony produce pellee presumption injuries his raises who treated cians have been unfavorable would that such appellee substantiated and would not have injuries. Appellants rely on rule an- claim for Casey, 79, Ark. Rutherford nounced “The failure to as follows: S.W. pre- party’s control raises evidence within against operate produced, sumption that if every him, in favor of intendment will be *10 proof opposite party.” in bar does the case at army testimony of doc- the these not show whether appellee, it said to and cannot tors available that such evidence was within his control under aforementioned rule. any
As a matter of fact while no discussion of objections testimony to about the existence of witnesses not is in called our own cases included hereinabove cited support general in rules, of the it is obvious that the actually witness, evidence came from some and it obvious that without such evidence there is the re- possibility motest For way applied. that the inference could ever be
example: Lynch Stephens, high- in v. the failure aof contractor sued subcontractor an estimate percentages due and retained to call as witnesses bookkeeper engineer justify was said to an inference jury testimony that their would not have been contractor; Johnston, to the in McLendon favorable v. relating testimony survey we assumed that the about a boundary who line was unfavorable to the paid surveyors admitted that failed to about had it but she make testimony survey any either introduce it; Saliba, in Saliba v. instruction if had withheld evidence under that either presumed against that it his control law would approved introduced, was where him if it had been defendant testify knowledge having failed facts witnesses one of four it was disclosed case; in in involved testified who saw the accident company’s McGibboney, the existence of the insurance coding through clerk, called, was who was not disclosed company’s manager; Ab- office bot v. Prothro, opinion V is shown that . .it recites appellees surveyors. employed three . .to different survey trial”; Jones, the line before the we referred witness; the failure account for the absence of the Casey, where defendant testified Rutherford Louis, Shephard he sent certain to a Mrs. bonds St. we said: party’s failure evidence within the presumption produced,
control raises the if operate against every him, intendment opposite will party. Kirby inbe favor of the v. Tall- madge, 463; 160 U. S. 16 Ct. S. Ed. L. *11 218 Mary Levy Brother, v. and 109 La.
Johnson 34 Ry. Chicago Newell, 68; I. So. W. Co. v. Ry. App. 263; Ill. Choctaw & Mem. Co. v. New 113 (C.C.A.) F. ton 225. pro- appellant given by for not
No reason appellant Shephard. ducing testi- had Mrs. After the in which fied as when and where and the manner he mailed the her, the evidence securities transaction, showing no record of that there is such Shephard showing that Mrs. and the evidence also was not at duce Mrs. pro- Hotel, the Chase his failure to Shephard presumption if the raises produced, testify against she would him. where the evidence case found no Arkansas We have brought jury through the ex of the medium to the was involving pert. admission the Eminent domain cases type the held that It are has evidence scarce. appraiser evidence an admission exclusion employed by eminent domain action in an state judicial as witness lies sound was not called judge, will whose determination of the trial discretion appeal. Wash on See State v. not be interfered with an (1964). ington, On 394 P. 2d 64 Wash. 2d one Supreme hand, has held that Court the Texas other party prove proceeding cannot domain in an eminent by appraise engaged appraisers other to the names property but not called as witnesses order lay predicate argument for a their comment in testify, though might failure to even he call appraiser testify opinions, a witness as to his value by employed but show whom he was to either credibility impression bolster his or to create the party suppressing Boy the adverse les evidence. Lighting (Tex. Co., Houston & Power 464 S.W. 1971). In that case was held that the trial cor court rectly excluded cross-examination of a landowner’s appraisers value witness to disclose the names of other appraised property request who had at landowner. why
We can see no sound reason the evidence as to by party consulted of a failure him cannot be shown through rather than the witness witness himself or some other called particularly party. when be available This method should inanimate cannot be called itself is *12 establish the facts.
Regardless identity appraisers em- of whether the of the adverse by ployed but not called witnesses right only per- be shown as a matter of or when by judge mitted the in the of a trial exercise sound could, any judicial say discretion, we not that there was ruling course, in in error approach, the this case. Of in either appraiser engaged the who had the right explain have the to should offer evidence to identity any dis- to witness whose is thus failure closed. call judgment is affirmed. JJ., George and Jones, Smith C. J., Rose Harris dissent. George dissenting. Justice, I would Smith, Rose judgment. simple
reverse party ought fairness a permitted show, to be appellees to as the in did adversary court, the trial that his has failed to call as adversary employed witness an merely whom his purpose obtaining opinion. an If such testi- mony any all, has pur- effect at other than its intended pose passion prejudice arouse an attitude in jury room, completely outweighed by that effect is policy admitting reasons of proof for not such weight authority elsewhere.
First, testimony obviously is of no direct aid to jury. problem Their is to arrive at the value of the property, in dollars and cents. To inform them that the highway department has not called to the witness stand appraisers one of its cannot be of appraised who property has reaching assistance to the proof dollars-and-cents merely verdict. Such arouses slight analogy, By is some prejudice. there doubtless showing a defendant probative value instrumentality repairs involved made later testimony showing controversy, what in accident jury. during But happened slight the deliberations demonstrably probative overbalanced value against evidence. policy the use considerations holding here. That our should Secondly, on record before there is no reason us suspect any wrongdoing part highway attorneys. Ordinarily department or a condemnor its property purchase first makes effort the desired right-of-way, resorting or an eminent domain rather than at the outset nothing
proceeding. clearly There is wrong its decision to send three of the condemnor’s property, one, appraisers, before view the instead of beginning negotiate purchase. its Pre- *13 thing. exactly sumably the landowner does same certainly bring duty to Yet there is on either side no appraiser opinion into court whose was the least party employing him. favorable to Yet the ma- jority opinion implies not the existence of such duty; trying actually penalizes litigant a it a not attorneys most his lawsuit what his believe be the to advantageous procedure for their client. ethical majority do,
Thirdly, say, no to as the answer right party employing appraiser has the that the par- explain him as the failure to call a witness. When they ought attorney nothing wrong, ty and his have done put position having prove not to be unfair attorney negative, by proving An the may their innocence. calling many perfectly not have valid reasons for appraiser favorable whose was least valuation attorney good may simply conclude, in his client. particular expert’s opinion faith, well is not as that the may appraiser. He think of another founded as that particular appraiser himself handle that the par- that the He learn on the witness stand. well appraiser extent discredited been to some has ticular (a situation in the same courtroom an earlier trial reasons, recently). though perfectly Such before us a valid, jury. readily explainable are not Moreover, col- raises very attempt explain lateral issues are a waste time and expense for all concerned. Yet the will opinion en- majority’s case, a courage that waste. This cannot precedent, be limited to real estate appraisers employed by It will to the landowner’s apply highway department. de- It will to both the and the apply plaintiff appraisers. cases, more injury where obtain they fendant personal medical It ap- one before trial. will opinion than involving expert testimony. to all cases opinion ply the better reasoned Finally, today’s cases are against decision. exact nature that arises inference a when fails to call particular witness has in- countless different expressed ways. puts McCormick the matter in the simplest possible terms saying the inference it would be under natural arises“[w]hen circumstances call witness.” particular McCormick Evidence, Caution must used (1954). § case. allowing such inference into a injected Revenue, v. Commissioner Internal 8th Schoenberg Co., Cir., F. 416 (1962); Grady Transp. v. Collins 341 Mass. N.E. (1960). 2d 725 I can find no clearcut that such evidence holding is admissible. Certainly the Arkansas cited cases do not majority Pro In Abbott require result. *14 thro, 230, Ark. 228 307 S.W. 2d the (1957), litigant 225 had three different employed to surveyors survey par ticular line. A surveyor is an he to expert, but testifies facts, not to v. Broomfield, 242 opinions. Broomfield Ark. 413 S.W. the (1967), 2d 657 witness who not was and, called was actually according the suit codefendant, to her had supposedly relevant information about the case. clearly case most similar to this one is State v.
Biggers, 360 S.W. 516 which (1962), 2d was cited and fol lowed in the later Texas case cited by the majority. arguments answering the court, in identical the
There say: by appellees, had the made now holding that not understood as are [W]e respond- refusing permit erred the trial court independently, witness, prove by or ents the Highway property, by employed the State the witness was Department appraisal to make an Highway appraisal for was the State his made by High- Department, paid he the or that was State way Department making appraisal. for the That relevancy proof no to the could have issues matter, As the case. we view the its tender could purpose supporting the of the credibi- lity creating impression the witness or of the jury suppressing with the It State was evidence. By purpose. not be admissible either Crowley calling testify respondents him make competency expert witness, their and once his as an they up right established, his is no to shore have credibility credibility impeached he is until or And a not to call cited.] attacked. a decision [Cases employed investigate one and evaluate witness report opinion a suppres- facts and an not [My italics.] evidence. sion of by majority, Washington State In the case cited proffered evi Assn., v. Washington Horse Breeders by was was court. That decision dence excluded trial saying question affirmed, the court that the involved judge. point exercise of discretion of view was taken in the trial A similar County Epstein City (1956), Denver, Colo. P. where affirming court, the trial court’s decision to exclude evidence, said: obligated value to determine upon before property the evidence subject court, could instructions under indulge might appraisal concerning what speculation or in surmises might the result not have or produced as persons not person some cause. witnesses *15 point Kentucky when arose a will contest
In em- attempted side had to show that other one side ployed using expert handwriting him as without discretion, held the court reference to witness. With no saying: inadmissible, proof proffered to be Concerning appellees not evidence that the did handwriting expert they em use as a witness a ployed, had appellant that, seeks invoke the rule where a in does not material evidence possession control, his and under his is a there presumption that the evidence would be unfavor ever has rule not aware We are to him. able applied expert testimony to an witness whose merely opinion. addition, would an the wit appellant, ness was available to the and his testi mony possession therefore within the appellees, under the control of the within the mean [Whitcomb ing of the Whitcomb, rule. S.W. (Ky. 1954).] imply I do not mean that the unfavorable inference question respect party’s in failure can never arise with to a can, call an witness. Of course it injured plaintiff the familiar situation which an fails physician treating call who has been him. That situation, however, statement, falls within McCormick’s parti- that it would be for the natural to call the entirely thing permit cular witness. is an It different litigant proof case, introduce not otherwise in the purpose for passion creating atmosphere deliberate prejudice in the room. I hold inadmissible; or, to be if discretion can be involved, said to be I would hold that it was abused below. court Jones, J, C.J.,
Harris, dissent. join