Edwards v. Stills

Edwards EDWARDS, As Guardian Joe Janice Stills and Tanya David STILLS SW.2d 366 97-1168 of Arkansas Court Supreme 21, 1998 December delivered Opinion Perroni, Firm, Patrick R. A. Law Samuel Perroni & by: James Nadzam, for and appellant. Carla Rogers James, P.A., Rhoads, & Matthews, by: McClure Thompson, Campbell, Matthews, for David R. appellees. case. Donald L. This is tort Appel- Corbin, Justice. Edwards, Edwards, as Guardian lant Joe Janice in Circuit Court of Washington County judgment

appeals found that and Stills. The favor of David Tanya jury Appellees assault, husband, Edwards, committed the torts of Appellant’s Joe David Stills on false and against outrage battery, imprisonment, 1995, caused March and that his actions Tanya proximately her husband. The Stillses were Stills’s loss of consortium with $1,500,000 $243,600 awarded damages compensatory This case raises ten on points appeal. punitive damages. Appellant the basis the Arkansas Court of on was certified to us from Appeals interest and further that it is of substantial requires develop- public law; hence, of the our ment or clarification jurisdiction pursuant We affirm. l-2(d). to Ark. Ct. R. Sup. are not

The events of March disputed. pertinent that David Stills meet him at a warehouse Edwards requested Joe and his two that Edwards to discuss legal disputes corporations 9:00 At were with City approximately having Springdale. a.m., truck to the and Stills drove in Edwards’s city Edwards and met with city administration building inspector issues for Edwards’s fire chief to various code discuss compliance and Stills into After Edwards got businesses. meeting, concerns of to discuss other legal Edwards’s truck. Edwards began businesses, from the adminis- he drove the away city as parties tration to an field located next to ware- Edwards’s building open field, house. Edwards the truck in the out a stopped open pulled Stills, stated, it at and “We have some unfinished gun, pointed business.” Edwards ordered Stills to his hands on the dash of put the truck and not to he because would kill him. try anything Stills, it, Edwards at cocked and held it cocked pointed gun with his thumb while his was on the Edwards finger trigger. said, to drive the truck and began “You need to tell me again what’s on.” Edwards continued to threaten to kill going Stills while he drove to Edwards’s house. home,

Once Edwards had driven to his he ordered Stills out truck, him, of the at and into the house keeping gun pointed where Edwards disabled the home Edwards then security system. area, ordered Stills into the basement still at him. pointing gun basement, Once in the Edwards took duct and bound Stills’s tape hands and feet and tied him in a crouched ato table position leg. ties, belts, Edwards also used neck and ski to tie Stills to the rope table such hands, arms, that he could not leg move his or legs; Stills’s hands soon became discolored from lack of circulation. Edwards then tell Stills he had proceeded abducted him. why Edwards accused Stills of an affairwith having his wife and supply- her with ing drugs Edwards also drug accused paraphernalia. Stills of stolen having ($20,000,000) from him. money Despite Stills’s constant assertion that he was innocent of the accusations mistaken, and that Edwards 'was Edwards threatened repeatedly Stills that he was to kill him and that he going would suffer an death. excruciatingly Edwards brandished painful two butcher knives before Stills and out of brought bottle of muriatic hiding acid and threatened to the acid on Stills’sface and in put his eyes. Edwards demonstrated the caustic effect of the muriatic acid on the stonework and in front of Stills. Stills could carpet see the muriatic acid smoke and stonework, sizzle as it ran down the onto time, this Stills cаrpet. Throughout begged pleaded his life. Edwards told Stills of his intentions to Edwards’s bring wife down to the basement where he would kill them both. Edwards even told Stills that he would abduct Stills’s wife and make her watch him die. Edwards said that he had his planned actions and had talked to a friend about his Edwards also plans. and that for him (Edwards), had another waiting said that he gun x cell. his life in a 6 the rest of he was not spend going he where telephoned Edwards went upstairs At one point, voice, some calm, about wife, having in a normal tone speaking leave After Edwards then the house. hearing lunch. Edwards left immediately that Edwards was not until he and thought waiting back, from but his loose his bindings, Stills tried to get coming loosen the Stills was able to Eventually, arms would budge. table and free himself from the his to the torso binding securing his arms Stills was able he still could not use or table but legs. leg, and the stairs he raised himself hopped to crawl where up up nose, and door. Stills pressed the front Using tongue off the and alert to set security system key hoping security pad door, front his mouth and then Stills police. opened using down, teeth, fell and rolled down the went out on the and porch, Stills his car and assisted street. Eventually passerby stopped thereafter, the Police contacting police. Shortly Springdale arrested Edwards. Department

I. Punitive Damages reversal, that the trial For her first point Appellant argues of for acts court erred in an award punitive damages allowing while he was and delusional. committed Edwards psychotic at the inci- that was insane the time of asserts Edwards dent, that the amounted to and thus award of punitive damages due constituted and unusual of cruel pun- process deprivation that becаuse of ishment. She further the award argues punitive it was error allow improper, present damages Appellees worth, net which was in excess of (cid:127)evidence of Edwardses’ $14,000,000.

When we an award of we review damages, punitive extent of the the intent of the consider the and enormity wrong, circumstances, the finan all the committing party wrong, of the United cial and social condition and standing erring party. 364, 752 America v. 331 Ark. 961 S.W.2d Ins. Co. Murphy, are to be a for conduct Punitive (1998). penalty damages deliberate intent another. Id. malicious or done with the to injure An instruction for be when damages there is punitive may given “ evidence known, that a ‘knew or to have party likely ought circumstances, of the light that his conduct surrounding would result in and that he naturally probably injury continued such conduct in reckless from which disregard consequences malice Cox, could be inferred.’” 361, 324 Ark. McLaughlin 371, 327, Demuth, S.W.2d 333 (1996) Allred v. (quoting Ark. 890 S.W.2d 578 (1994) Holstein Leas- (quoting Dongary Inc. v. 293 Ark. ing, 732 S.W.2d Covington, 465 (1987))). Punitive are when the damages justified defendant only acts wan- or with such conscious tonly indifference to the consequences his acts that malice be inferred. may Hunt Inc. v. Transp., J.B. Doss, 899 S.W.2d 464 (1995). how- Negligence, ever will not such an gross, award. Id. support

A. Persons Mental Diseaseor Sufferingfrom Defect Appellant argues were not punitive damages recoverable in this case because Edwards was from suffering psychosis time, delusions at the and that his delusions and drove psychosis him to commit the actions Stills. She contends that against puni- tive are damages designed tortfeasors and deter punish inten- tional, conduct, malicious and that such should never be damages awarded disease, against from a mental persons suffеring because it would be unfair to a sick who punish was not of person his acting own free will. asserts that the criminal Appellant standard for the affirmative defense of whether the insanity, lacked the person to conform his conduct to the capacity of the law or requirements conduct, of his appreciate is not criminality appropriate civil cases. See Ark. Code Ann. 5-2-312(a) 1997). (Repl. § Rather, standard, she advocates a lesser based a upon case-by-case state, of the analysis defendant’s mental where the evidence shows that the suffered from a Appellant mental disease or defect.

We are not persuaded by for two Appellant’s argument rea- First, sons. offers no or authority convincing argument that the civil standard for should be different insanity than the any criminal standard. issue, The cases that have addressed this includ- those relied ing discuss the upon Appellant, defendant’s mental state in terms of his insane or his able being legally to form being

485 See intent for damages. punitive or requisite possess Preferred Dist. Ct. Saboda, 2d 768 (Fla. App. 489 So. v. Mut. Ins. Co. Risk a who cannot one that deranged person, 1986) (holding form or actual tort intent, of a wanton requiring cannot be guilty rational damages); be held Hable and cannot punitive malice constructive 1986) (holding Ct. 708 S.W.2d (Ky. App. Taylor, Goff v. dam from are insulated deficient punitive that mentally persons at of society to balance protection duty ages, recognizing conductto the their for thoseunable with large compassion conform 1891) 24 A. 902 (N.H. (holding v. standard); Colby, expected Jewell of the on account defense to sought that is a damages insanity will оr has no because an insane defendant’s intent or motive person Thomas, Civ. 1976) S.W.2d 422 (Tex. App. Lee v. motive); not hable for puni that the defendant was exemplary (holding time, did not at the such he he was insane tive because damages nature and did not know the consequence know wrong, right from actions, affairs). conduct his business not able to and was properly Carrier, 619 (N.C. 1938), In v. 198 S.E. Supreme Bryant an insane is that while Court of North Carolina recognized person he is not and for damages, liable for his torts compensatory civilly In order to hable for damages. justify punitive necessarily punitive “was not that the defendant must show damages, plaintiff of, but was insane at the time of the mentally wrongs complained acts to committhe and that he had capacity alleged competent, legal would the award of with such elements as justify puni- aggravation in Shumann added). tive Id. at 620 Similarly, damages.” (emphasis Court 1979), P.2d 298 Ct. (Or. Oregon Crofoot, App. not an absolute defense to a insanity recognized Appeals if, rather, it at the claim for is defense damages; only punitive act, the defendant was time of the exercising wrongful “incapableof to render his conduct deserving punish- judgment sufficient held The court added). Id. at 303 Oregon (emphasis ment[.]” further that the issue of whether the defendant’s mental state was of fact were was a such that question punitive damages appropriate 799 F. also to be resolved See Delahanty Hinckley, jury. 184 (D.D.C. 1992). Supp. demonstrate that the

The cases pertinent foregoing be may for whether damages determining punitive inquiry the defendant that he assessed whether was insane such unable to form a rational intent or motive оr was otherwise unable to conform his conduct to standards of and the law. society None of those cases an absolute defense to a who provide person claims have suffered from some form of mental disease or defect, unless the defect is such that it renders the person incapable intent or forming requisite punitive damages incapable his behavior to of the law. conforming requirements

Second, has not with us reason provided any a different standard for because apply punitive damages merely defense is one of We believe that no matter person’s insanity. defense, what the the focus remains on the defendant’s intent in the acts. current Our standard for committing punitive damages, above, outlined the defendant’s to act inten encompasses ability that the defendant knew tionally by requiring plaintiff prove or should have known his conduct would naturally proba result in and that he continued such conduct bly injury wantonly actions, or with conscious indifference to the of his consequences such that malice be inferred. Where the evidence shows that may the defendant suffers from a mental defect disease or that renders conduct, him unable to of his it natu appreciate wrongfulness follows that he cannot be said to have acted mali rally wantonly, or with consciousindifference to the ciously, of his consequences actions; hence, he would not be liable for We punitive damages. are thus not that a defendant persuaded by Appellant’s argument should be insulated from if he suffers from punitive damages any defect, mental disease or of how severe or how it affects regardless to conform his behavior to the ability of the law. requirements Furthermore, that it was error to award argument Appellant’s in this case the evidence at punitive damages ignores presented trial to Edwards’s state of mind at the time of the inci- pertaining Reid, defense, dent. Dr. Gene for the tes- psychiatrist testifying tified that he concluded that Edwards was from an suffering of what was disorder. He episode apparently recurring psychotic stated that Edwards believed that his wife was an affair having order to and that his main concern was that were get drugs, people to enslave her to cocaine and kill her and him. going eventually disorder, He Edwards as mixed diagnosed having bipolar typed, at the same he had some present because depressive symptoms that are features. He indicated delusions time with psychotic the time Edwards kid- He stated that at symptoms. psychotic Stills, conform his behavior he was no able to longer napped Nevertheless, he that Edwards knew that what he stated the law. him in a lot of and could was was wrong get doing illegal cross-examination, Moreover, Dr. stated that on Reid trouble. Edwards in the basement where had a officer been present police Stills, conform Edwards would have been able to had kidnapped of the law. He also stated his behavior to requirements the intent to threaten Edwards was wrongfully forming capable strike, Stills; freedom; Stills; touch, or beat to restrain Stills’s him, Stills, him. tie acid on and threaten to kill up pour Holloman, a at the Ozark Dr. Michael G. staff psychiatrist that based on his inter- Guidance Center testified Springdale, in March he believed that on the date in viеw of Edwards Edwards knew that he had done that could question, something but he felt that what he was be as was wrong, doing perceived right. Smith,

Dr. a clinical from Fort Barling, Philip psychologist testified in rebuttal for Dr. stated that he Barling Appellees. records, reviewed of Edwards’s medical copies including from Dr. and Dr. He it Reid Holloman. stated that was reports that on the date in Edwards did opinion question appreciate that what he was and had the to con- doing illegal capacity form his behavior to of the law. He found requirements sig- incident, nificant the fact that on the Edwards met morning location, with in one Stills drove with him alone to the fire sta- tion, and went a business without Stills. through meeting harming He stated that such behavior shows that Edwards exercised some self-control the time that he was with Stills. He stated that during such self-control is a historically determining principal part whether someone has the to conform their behavior to capacity of the law. He stated that if a were requirements person truly law, unable to conform his behavior to the of the requirements would not be able to at time. person any stop Dr. Reid’s records reflect- also found Dr. significant Barling that he had which Edwards told Dr. Reid begun an incident in ing Courchaine) Dr. Karen about a telling (presumably psychologist Stills, the incident. The records a week to prior plan kidnap that she could not the told Edwards reflect that when psychologist Edwards chose not of such confidentiality plan, guarantee of stated that this was evidence reveal the further. Dr. Barling plan that his exercise self-restraint. He stated Edwards’s opin- ability the to conform his actions to that Edwards had the ion ability the law Dr. Reid’s testimоny of was strengthened by requirements time, at and that he could that Edwards could have any stopped been his behavior had a officer have conformed police present the basement. day to Edwards’s

After the evidence hearing pertaining state, the the found that he committed tort mental jury specifically the intent to wantonly engage of by forming willfully outrage Stills. The found in extreme and conduct against jury outrageous of mental further that Edwards did not lack the as result capacity, defect, conduct to the of disease or to conform his requirements the of his conduct. We con the law or to criminality appreciate the and the award clude that the evidence jury’s findings supports that Edwards acted of on the basis wantonly punitive damages acts, indifference to the of his with such conscious consequences such that malice be inferred. may

B. Amount Punitive Damages of that the the award was next amount of Appellant argues and thus notions of due She excessive violates process. grossly America, relies on the Court’s in BMW North holding Supreme of There, Gore, the Court held that Inc. v. 517 U.S. 559 (1996). constitutional notions of fairness enshrined our “[e]lementary dictate that a receive fair notice not of only jurisprudence person the that will him to but also of the conduct subject punishment, that a State Id. at 574 (foot of severity may impose.” penalty three note The Court established omitted). guide following of an award of for reasonableness punitive posts determining The of defendant’s (1) damages: degree reprehensibility conduct; the award and the actual harm between (2) disparity harm; of the award to a(3) comparison inflicted or potential be that could imposed the civil or criminal penalties misconduct. case, it becomes to this those guideposts

Applying here is not awarded that the amount damages punitive apparent First, does not contest gravity excessive. grossly Stills, that it should be toward but she Edwards’s conduct argues from because he was considered less suffering psy reprehensible for the reasons and delusions. We this chosis reject argument stated above.

Second, between damages disparity punitive The and the actual or harm inflicted is not excessive. potential $1,500,000, a little over six awarded of jury punitive damages times the amount awarded for which was damages, compensatory contrast, BMW, $243,600. 559, 517 U.S. dam By punitive the actual The were 500 times amount of ages damages. Court concluded that the amount was excessive. The Court refused, however, to a mathematical formula for assign specific at an amount of This court has also arriving damages. acceptable refused to set a formula for particular measuring punitive damages; rather, the calculation of those lies within the discretion damages after due consideration of all the attendant circum jury Hansen, stances. Smith v. 914 S.W.2d 285 (1996). The must be sufficient to deter similar conduct on the penalty part tortfeasor, of the same and it deter should be sufficient to others who in similar conduct. Id. The is free to consider engage jury the extent and the of the the intent of the enormity wrong, par ties, as well as the financial and of the social Id. standing parties. All of these elements were for the consideration jury’s presented here.

Third, a of the award to the civil or crim comparison inal authorized law also leads us to the conclusion that penalties the award was not excessive. The criminal for permissible penalty the crime Class Y is ten to or kidnapping, felony, forty years’ life SeeArk. Ann. Code 5-4-401 5-11-102 imprisonment. §§ we conclude that the amount of 1997). (Repl. Accordingly, puni tive awarded here was not excessive. damages and Unusual Punishment

C. Cruel case that the award in this argues Lastly, Appellant unusual and thus violated constituted cruel and punishment United Constitution. Amendment to the States Again, Eighth the assertion that Edwards com bases this on argument Appellant defect. of a mental disease or mitted these actions as result issue, this on cites no authority convincing argument that this and it is not without further research argument apparent it. Webberv. taken. we will not address See is well Accordingly, Servs., Ark. 975 S.W.2d 829 Arkansas Human Dep’t of Bank, Inc. v. First Corner Food & State (1998); Country Drug, (1998). Ark. 966 S.W.2d 894 on

II. Instruction and Liability Interrogatory Proffered Insane Person reversal, For her second point Appellant ‍​​‌‌‌‌‌​‌‌​​​​​‌​‌‌‌​​‌‌​​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​‌‌​​‌‍argues that the trial court erred following refusing give proffered instruction: jury torts,

An insane is liable for his unless the act person specific from whom of involves an intent which complained person is is of recovery sought incapable entertaining. asserts that instruction was this by

Appellant proffered required Cox, 152, court’s decision in 210 Ark. 194 S.W.2d 681 Ragan In held that an is this court insane (1946). Ragan, generally person torts, hable for his unless the act of involves an specific complained that intent from whom is is recovery person sought incapable of entertaining. that, out the trial court did not although give

Appellees point it did the infor- instruction proffered separately, incorporate 14, mation into Instruction No. which provided part: Edwards, Edwards, claims that at as for guardian Joe Janice 17, 1995, Edwards, because the time of his actions on March Joe of mental disease or defect lacked the mental to inten- capacity of or or false battery commit torts assault tionally imprison- willfully wantonly engage ment or to form the intent to extreme and conduct. The rule law is that a outrageous general of torts, a diseaseor is liable mental personsufferingfrom defect unlessthe act involves intent complained person an whichthe specific of is whom recovery sought incapable entertaining. from We will not reverse a trial refusal court’s to give an instruction unless there was abuse of discretion. Coca- proffered 666, Cola Co. v. Ark. 945 S.W.2d 355 Bottling Priddy, (1997). Furthermore, it is not error for the trial court to refuse a proffered instruction when the stated matter is covered jury correctly by other instructions. Ouachita WildernessInst. v. 329 Ark. Mergen, 405, 947 S.W.2d 780 to (1997). has failed demonstrate Appellant was she or that the trial court abused its discretion prejudiced instruction in favor No. rejecting Instruction proffered fact, 14. In the instruction have been beneficial to given may as it included the term “mental Appellant disease or defect” as “insane,” to as set out in opposed 210 Ark. Ragan, S.W.2d 681. also that the trial court erred in

Appellant argues refusing her give proffered interrogatory Edwards’s mental pertaining state, which provided: INTERROGATORYNO. 6: Do find from a you prepon- 17, 1995, deranceof the evidencethat on March when the inci- occurred,

dent Edwards was from suffering psychosis Joe delusions? contends this statement of the law proper under Ragan, 194 S.W.2d 5-2- section 312. We disagree. addressed the issue of

Ragan where the liability person was unable to entertain the intent to commit the requisite wrong ful act. section 5-2-312 Similarly, a defense to provides criminal if the lacked the liability person conform his conduct capacity to the of the law toor requirements appreciate criminality his conduct. Neither one of these authorities supports Appellant’s As proffered discussed in the interrogatory. a previous point, per son from suffering or delusions is not insane psychosis necessarily such that he act, cannot form the intent to a commit wrongful the conduct, of his appreciate or conform wrongfulness his behav ior to the of the requirements law.

III. Privilege Against Self-Incrimination reversal, the that trial for argues For her third point on ref- to a mistrial based erred in grant Appellees’ court refusing self-incrimina- to exercise his against erence Edwards’s privilege the court had 512. asserts that trial under A.R.E. Rule She tion issue, and in on the that a motion limine Appellees earlier granted of his to Edwards’s invocation violated that ruling by referring testi- and by eliciting in their statement Miranda rights opening his Miranda from officers about Edwards’s assertion of mony police rights. had to mention concede that they agreed

Appellees to civil case to Rule 512. Edwards’s refusal the testify pursuant however, the to that evidence of Edwards’s request argue, They incident, the after separate to his immediately lawyer, speak to show his that such evidence was relevant issue. assert They crimes, that he after the mental state immediately particularly the his and had the actions criminality ability could appreciate the conduct to the law. to conform his requirements state- The comments were made during following opening ment counsel David Matthews: by Appellees’ hear Harrison of the Police Springdale will Officer [Y]ou he there and came got finally when

Department testify Joe outside, front pocket, him two bullets were his gave Joe “I out of says, two caliber revolver bullets. He took them I didn’t want to shoot him on gun accidentally way because revolver, he tells that the is in over here.” And him gun, “I complete And he made mistake didn’t says, truck. “What “I was job.” job?” going Officer Harrison says, station, kill all.” take him to They they begin give them he “I don’t to talk to says, him his Miranda want warnings I want And his came. you, my lawyer.” lawyer mistrial, counsel Sam Perroni moved for a stating: Appellant’s Honor, Mr. I move a mistrial on the basis of Mat- Your to this that Mr. Edwards invoked Fifth thews’ statements jury It’s a violation of the Constitution and of Amendment privilege. Evidence; It’s Rules of it’s highly prejudicial. going Arkansas this as to Mr. Edwards didn’t tes- invite attention jury why to in which is also inadmissable a Motion tify, subject [sic] Limine, I believe. he Mr. Matthews had responded by acknowledging agreed refer not He to Edwards’s decision contended testify. nonetheless that because had made mental Edwards’s issue, state an that he had the of mind to testimony presence ask an for soon after the incident relevant abil- was to his attorney to conform his behavior to the law. The court ity trial denied motion mistrial on basis that the evidence was probative Edwards’s mental state. The trial court concluded that evi- such dence was not covered its Edwards’s prеvious ruling regarding not to in court. testify privilege Later, counsel Patrick when Appellant’s objected James asked Police Detective Lester

Appellees about Springdale Coger Edwards’s exercise of his Miranda Mr. contended rights. James that such was the trial court’s testimony prohibited by previous on motion limine. ruling in The is as Appellant’s colloquy follows: — Well, mean, we’d thought take to me The Court: I I one,

there’s two different issues. Number his exercise of right his not to testify at trial because of his constitutional not to right incriminate himself. And we’ve covered that and you’ve read the ruling, was, that’s how I remember it. The issue other when authorities, he was being the law enforcement questioned by — exercise of his to remain silent. right And I don’t I thought — — well, we didn’t have maybe didn’t we have a on motion issue? particular We had a bar conference. Mr. James: Honor, Your when that’s Mr. Perroni Mr. Matthews: interrupted statement to my opening move for mistrial. That’s when we took that issue up. Well, that was at that my time at The Court: ruling bar I guess conference. it not the of a in subject Motion

Limine, that, but my opinion though even Rule states rule, issue, general because his mental is in I think it’s capacity more than on probative that issue and I’m prejudicial going allow him to ask as I question, indicated rul- my previous Perroni, the Mr. Mat- during at bench to Mr. apparently

ing thews’ statement. opening record, clear for the it won’t Then so we’re just Mr. James: are the time those questions us to stand at necessary

be for up to our preserve objections. elicited 'Well, those issues. I’ll note that’s on right, The Court: to the officers police in the record to objection allowing your it’s, his In a criminal case Rights. if he exercised Miranda testify know, Here in a civil matter a we’re lot different situation. you as an affirmative being mental is raised wherein lack of capacity it in criminal mat- not and often is precluded, defense. 'While it’s ters, in the civil side. but I think it is a lot less persuasive An[d] I’m admit it. to your objection, going over he advised of testified that after had Edwards Detective then Coger Edwards have an during his attorney present questioning, right No further he wanted to to his attorney. stated that inquiry speak at that was made time. Coger by of the of one’s constitutional right

The question scope self-incrimination, in the Fifth Amendment as against provided the Article Arkansas the United States Constitution and § Constitution, this in a is one of first in civil impression proceeding we look guidance. state. elsewhere Accordingly, Illinois, v. 478 364 the Court (1986), In Allen U.S. Supreme to be the of the Fifth Amendment right addressed applicability civil to be a oneself in a witness against proceeding compelled Illinois Act. The Court under Persons Sexually Dangerous stated: Amendment, Fifth The Clause Self-Incrimination Amendment,

which to the States Fourteenth applies through be in criminal case compelled any that no “shall provides person This has held that long to be a witness himself” Court against a only self-incrimination “not against permits per- the privilege at criminal trial in which against to refuse to himself testify son defendant, but also him not to answer official he is ‘privileges criminal, civil or to him other put any proceeding, questions informal, where answers incriminate him formal or might criminal future proceedings.’”

495 Id. at The reasoned that (citations omitted). 368 Court “[t]his has Due its own force Court never held Process Clause of in a of the sеlf-incrimination against requires application privilege noncriminal where claimant proceeding, privilege protected case.” Id. at answersin criminal subsequent against compelled any added). (emphasis decision, Prior to the New Court of held York Appeals that a confession arson taken without voluntary police prior Illinois, of the v. defendant’s under Escobedo warning rights Arizona, U.S. 478 U.S. (1964), Miranda predecessor 436 was admissible in a civil action. v. Fire (1966), Terpstra Niagara Co., Ins. 256 N.E.2d 536 The (N.Y. court held further 1970). that the confession was admissible the fact that the despite appel- lant’s to with counsel been consult had denied. The court request the of the self-incrimina- rejected analogy right appellant’s against the tion to to be free from unreasonable searches and right seizures, reasoning: breach of Fourth rights Amendment occurs at the time a

[A] are person’s belongings illegally confiscated whereas a person’s statements, Amendment are violated when his rights only taken Fifth withoutthe observance his necessary are used in protection, againsthim a criminalcase. Id. at 538 This is the added). consistent with (emphasis holding Allen, Court’s decision in 478 U.S. 364. Allen,

Even to its decision in in v. Baxter prior Palmigiano, 425 U.S. 308 the the (1976) Court discussed of the scope privi- There, in context of civil lege prison disciplinary hearings. was advised that he to but petitioner required testify, silent, that if he chose to remain be silence could used against him. The Court concluded that an adverse inference permitting not, to be drawn an from inmate’s silence at such a on is hearing face, its an invalid The Court practice. explained:

Our conclusion сonsistent with the rule that prevailing the Fifth Amendment does not forbid adverse inferences against to civil actions when refuse to to parties they testify response evidence offered them: the probative against Amendment “does a is claimed by where the the inference privilege not preclude to a civilcause.” party in Trial at Com- H. Evidence at Wigmore,

Id. 318 (quoting John 1961)). at 439 rev. Law (McNaughton mon § Baxter, 425 U.S. the Court’s holding on Relying that it was Court concluded per Commonwealth Pennsylvania to consider the appel missible for Transportation Secretary to restore hearing lant’s failure to during respond question 637 A.2d 769 (Pa. his driver’s license. Realmuto Dep’t of Transp., held: The court 1994). Cmmw. Ct. be against may

The constitutional self-incrimination right civil but if the in both only invoked criminal proceedings, witness in a subse- to a would incriminate the answer question Here, have Realmuto did the right criminalproceeding. quent However, becausethe hearing his constitutional ‍​​‌‌‌‌‌​‌‌​​​​​‌​‌‌‌​​‌‌​​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​‌‌​​‌‍privilege. assert was a also Examiner civil Hearing Secretary proceeding, before to answerthe question had the consider Realmuto right failure of as credibility. his determination to Realmuto’s making when Id. at (citation omitted) added). (emphasis on we conclude that

Based the foregoing holdings, remain the statements to Edwards’s claim of to referring right for an were admissible in the civil silent and his attorney request His Fifth Amendment not to be him. right proceedings against here, a not violated as to be witness himself was compelled against not That him were criminal. may proceedings against right are used him be violated if and when such statements only against Likewise, drawn from his in a criminal trial. inference any post- not of thе Fifth Amendment because the arrest silence is violative we claimed in a civil was proceeding. Accordingly, privilege to evidence as affirm the trial court’s decision admit the probative mental and state of mind after Edwards’s immediately capacity the acts he committed Stills. against find we no merit Correspondingly, Appellant’s 512, Rule which that a mistrial was warranted under argument provides part:

497 claim of a (a) Commentor Not Permitted. The privi- Inference occasion, in the a lege prior whether present proceeding upon subject is not a of comment or counsel. No proper by judge infer- ence drawn bemay therefrom. (c) Instruction. whom Jury request, any against Upon party might draw an adverseinference from claim or jury privilege is entitled to an that instruction no inference be drawn may therefrom. [Emphasis added.]

Rule the Fifth Amendment self- applies privilege against State, incrimination. Echols v. Ark. 936 S.W.2d 509 denied, not, cert. 117 S. rule (1996), Ct. 1853 The does (1997). however, an absolute a provide prohibition against mentioning State, claim of 770 S.W.2d privilege. Johnson Moreover, the rule (1989). itself sanc provides appropriate tion, a instruction to the cautionary and where no such jury, instruction is the trial court’s denial of a mistrial is not requested, an Here, abuse of discretion. Id. faded to a cau Appellant request such, instruction tionary to Rule As jury 512(c). pursuant the trial court’s denial of the motion for mistrial an abuse of discretion.

IV. Settlement Negotiations reversal, For her fourth point Appellant argues trial court erred to allow refusing cross-examination of David Stills settlement between the concerning prior negotiation par- ties. Stills testified that he had an interest in the criminal equal civil cases Edwards. against contends that she should have been allowed to Stills with an settlement impeach alleged offer that Stills would make the criminal case if away Edwards go him paid enough money. such settlement Appellees argue offer was made. never The court trial disallowed the evidence under A.R.E. Rule also concluded that probative evidence, value of the if was its any, outweighed by prejudicial effect. offer, counsel’s version of the settlement and

Appellant’s offer, offered no of the terms of the such as a confirmation proof letter. we cannot that the trial court abused its Accordingly, say discretion in to the introduction of the refusing permit proffered evidence.

V. Ken Edwards’s Testimony reversal, For her fifth that it point was Appellant argues error for the trial court to allow to Appellees present testimony cousin, Edwards, from Edwards’s Ken violent concerning prior incident Edwards. involving that Ken’s Appellee argues testimony relevant under A.R.E. independently Rule to 404(b) show Edwards’s motive and intent in Stills, his actions David against to show that Edwards had the mental to commit the acts capacity Stills. The trial against court found that the value of the probative evidence effect, outweighed any prejudicial light Appellant’s defense that Edwards was from a mental disease or suffering defect.

Ken testified that he had been with previously partners Edwards in a bonded and warehouse venture. In mid- public August Edwards called Ken’s home and asked Ken to meet him for coffee at Edwards’s new warehouse. Ken to meet agreed warehouse, Edwards at the arrived, and when he Edwards acted normal and was to Ken. Within friendly ten or fifteen minutes of their warehouse, inside the being Edwards’s demeanor changed. walked They around the warehouse for a little while discussing business. When went back in the inner they recesses of the build- Edwards ing, became said, angry curse and began “some- one’s been in here with messing and it would my paperwork have to be a and I think it’s lawyer, Edwards you.” also accused Ken of around with his wife. messing Ken denied the accusations and started stated, “No, to leave when Edwards where stay right you are.” Edwards then went some distance and came back with away on and a knife gloves in his hand. A ensued and fight Edwards rather began swinging Ken on the wildly, ear and grazing cutting it a little bit. After some mutual Ken ran from shoving, away Edwards, but he could not out of the get because building Edwards had locked the previously door. chased one They another around hours, for about three building until Edwards Afterwards, told more Edwards exhausted and upset.

began get him, and that Ken or Ken was that he was convinced lying Ken ruin him. were to or some of Ken’s trying some partners lawyer that if that let him but Ken he was to go, Edwards told going do, he to as had been invited Ken’s did show up, partner he have had and would know that Ken intervened Edwards would threat, kill the Edwards never Ken again. him. pursued Despite other Rule that evidence of 404(b) provides crimes, the of a acts admissible character is not to prove wrongs, therewith, acted to show that he in conformity in order person of is for other such as but such evidence admissible proof purposes, motive, intent, iden knowledge, preparation, plan, opportunity, State, accident. v. 333 Ark. or absence of mistake or tity, Johnson 673, offered undеr Rule 972 S.W.2d 935 Evidence (1998). relevant, a thus having must be 404(b) tendency independently the of fact that is of to the deter make existence any consequence or less than it would be mination of the action more probable have without the evidence. Id. We stressed requirement there be of between the a high similarity charged very degree act. admission crime and the Id. The or rejec prior uncharged is tion of evidence under Rule left to sound discretion 404(b) of the trial court and will not be disturbed absent manifest abuse State, 41, of Munson v. 331 Ark. 959 S.W.2d 391 discretion. another is admitted under Before of crime (1998). testimony must value of the evidence be Rule 404(b), weighed probative of unfair Id. The standard of review against danger prejudice. of a trial court’s of value unfair weighing probative against preju dice is the trial abused discretion. Id. whether court its v. relies on this court’s decision in heavily Diffee State, 669, 319 her Ark. 894 S.W.2d 564 for assertion (1995), the evidence was because there was not high improper degree Ken and between acts Edwards those similarity against against Stills. She relies on holding following specific Diffee: There are two evidence of an introducing requirements “(1) unrelated act a method both acts to show prior operation: be committed with the same or similar methodol- strikingly must acts (2) and must be so that both ogy; methodology unique can be attributed one individual.” 675, State, Id. at 894 S.W.2d at 567 291 Ark. (quoting Frensley Imwinkelried, S.W.2d Edward (1987) (citing J. MisconductEvidence 3.10 to 3.12 Uncharged (1984))). Appel- §§ lant’s reliance on this It is obvious from the holding misplaced. that the to evidence language expressed requirements pertain only Here, intended to show method of the evidence was operatiоn. motive, admitted to show intent Edwards’s as well as his mental to form intent such or motive. capacity

Moreover, 894 S.W.2d this Diffee, court the State’s that the evidence rejected was admissible theory intent, to show Diffee’s because there was little plan, identity, between the act and the similarity act. charged prior uncharged There, Diffee was with her mother stab- charged murdering her times with an ice bing The twenty-two State pick. presented husband, Diffee, of Diffee’s former Eddie testimony that approxi- earlier, three mately Eddie had been years in their home sleeping when he and hit hand, that fell swiped out of Diffee’s something onto the floor. The cut three of object his and struck him fingers between his sideburn and Diffee screamed eye. and ran through kitchen, the house to the where she stated that a man had run just their house. The next through Eddie found an ice day, pick lay- on the floor on the same side of ing the bed where he had been when he was sleeping This court injured. concluded that the trial court erred in Eddie’s on the allowing that testimony ground “such use of an ice ex-husband, to assault her pick absentspecific threatsto him or otherevidence an intent or to harm or take plan of inflict his does not life, muster as simply evidence pass under permitted A.R.E. 404(b).” Id. at 894 S.W.2d at 570 (emphasis added). contrast, here, In Edwards’s actions both Ken against Edwards and David Stills methods, involved not similar only very but also threats to inflict specific harm both physical victims upon and, to kill them. ultimately, Both incidents involved (1) Edwards’s delusions that the victims were somehow out to ruin him or his wife; and were also involved with family a(2) plan to the victim alone on get Edwards’s turf a desire to evidencing business; talk about and (3) the victim with the threat terrorizing of death and the use of violence. physical Considering Appellant’s defense that Edwards suffered from a mental disease or defect at Stills, that evidence time acts were committed against

the the act a similar a mere seven and committed Edwards had planned had to that he the intent earlier relevant show months was those and to out his actions Stills against carry capability plan value of The trial court probative properly weighed plans. case of unfair evidence against danger prejudice Appellant’s of intent that the evidence was Edwards’s and concluded probative defense of relevant to counter particularly Appellant’s such, that As we conclude the trial court mental disease or defect. in did not abuse its discretion permitting testimony. Abuse Evidence Prior Domestic VI. of reversal, that the trial For her argues sixth Appellant point domestic court erred in episode admitting testimony prior 1994. violence between the Edwardses that occurred October it was admit evidence that both she She also that error to argues as a and Edwards misdemeanor guilty charges battery pleaded The trial result of that domestic disturbance. court initially entered an not be to intro- order would permitted Appellees duce evidence disturbance. surrounding Appellant argues trial its court thus erred to honor previous ruling. refusing called three Police officers to testify Springdale he had about disturbance. Officer David Clark testified that 18, 1994, on been to the Edwardses’ residence October dispatched arrived, that and that when he Edwards stated was Appellant Joe kill that to herself. Clark said drugs threatening using Edwards that was an affair with a man also stated Appellant having that he in Dallas. stated ended both Clark up placing Appellant them the and Edwards into his car and down to squad taking station, the Edwards station. On the stated that both way police been that he and had earlier Appellant using methamphetamine station, Once arrived at the Edwards that stated day. they they cocaine. told those had both used crack Edwards later Clark that true, not but that he had made them because he statements were was concerned for his wife’s because she was drugs. safety using Clark, the

Prior to counsel asked cross-examining Appellees’ trial court to its on that change previous ruling ground Appel-

503 had the door with the to Officer Clark. lant questions opened it be and unfair to contended that would improper Appellees half of the allow story. Appellant present only Appellant that the were limited to the alle- asserted Clark questions posed her that Edwards made affairs and concerning gations Appellant’s The trial court with use drugs. agreed Appellees Appellant then had the door to asked Clark opened subject. Appellees incident, about the circumstances of the the fact that including both and Edwards were arrested for domestic abuse and Appellant that both to misdemeanor the fol- guilty pleaded battery charges lowing morning. officers, then called two other Michael

Appellant Springdale Bersi, and Brian who testified that made Edwards an Haney appli- cation to commit after were involuntarily Appellant day they arrested for the domestic disturbance. It not until both Haney and Bersi had been on direct and cross-examination questioned made a motion for mistrial to the admis- pertaining sion of the The trial court ruled that the guilty mistrial pleas. motion was that the motion at the bench did untimely, previous not address the of the and that the subject guilty pleas, testimony came in without objection by Appellant.

We will not reverse the trial court’s on ruling admission of evidence absent an abuse of discretion. Smith v. Galaz, 222, White, 330 Ark. 953 S.W.2d 576 (1997); Warhurstv. 546, 310 Ark. 838 S.W.2d 350 Nor will we reverse (1992). absent State, showing Ark. prejudice. Misskelley denied, S.W.2d cert. 117 S. Ct. has (1996). Appellant suffered no from the admission of the prejudice because testimony she State, the door to this fine of opened See Willisv. questioning. 977 S.W.2d 890 She (1998). raised the on subject direct examination of a defense witness the fact that the despite trial court had entered an order previously prohibiting Appellees from broaching subject.

Furthermore, separate point regarding evidence of the Edwardses’ is not for our guilty pleas preserved review because the evidence was to in a man objected timely ner. To for a be preserve must point appeal, proper objection the matter to which objec- after at the first

asserted opportunity State, Ark. made occurs. Smith has been tion Likewise, be made for mistrial must motions 870 (1997). S.W.2d bar, however, Id. procedural at the first Despite opportunity. on this affirm the trial court’s ruling be inclined to we would this entire line of the door to since opened Appellant point questioning. the Trial Court Comments

VII. reversal, argues For her seventh point while commented on the еvidence trial court Appel- improperly Perroni, counsel, Stills was cross-examining Tanya lant’s Mr. in a that she since entries she had made diary kept regarding court should asserts that the trial incident occurred. Appellant her motion for mistrial. have granted cross-examination, the collo- Mrs. Stills’s following During Mr. Perroni and the court: occurred between quy Perroni, I think we’re getting any- The Court: Mr. don’t to entries. I about this trial. Let’s move on thing accomplished — there, else down but we we’re something mean there’s maybe all the time to this whole go through diary to have going word for word. know, All sir. I and I’m not planning

Mr. Perroni: right, all it. through on going Well, to have to move on to going

The Court: we’re that’s some relevance and I haven’t heard something got anything it. on this last around with go then from

Mr. Perroni: Do want me to move on you this? Well, the ‍​​‌‌‌‌‌​‌‌​​​​​‌​‌‌‌​​‌‌​​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​‌‌​​‌‍entry. The Court: if about you’ve got question it, I

I think it on the screen and can read but everybody we’ve got that’s rele- got didn’t hear that she’s read about that anything any vance to this lawsuit today. Well, Honor, Your I was to a trying get

Mr. Perroni: I demonstrate when she was back returning where could point left Mr. Stills. so I could find out how she Fayetteville long

505 Well, her, instead of who The Court: don’t we ask why tub she’s in the hot with.

Mr. Perroni then asked Mrs. two more and she Stills questions, answered them. At that Mr. Perroni asked to approach point, bench and to the court his cross-examina- objected interrupting The that the tion. was based on objection solely allegation trial court was with and defense counsel’s interfering limiting Later, case, cross-examination. after had rested their Appellees mistrial, Mr. Perroni moved for a this time that the court’s arguing comments his cross-examination amounted to an improper during evidence, comment on the such that a instruction cautionary would not cure it.

A mistrial is a drastic that should be used remedy only when there has been an error so cannot be prejudicial justice trial, served or when fundamental fairness of by continuing the trial itself has been affected. Steckerv. First Commer manifestly Co., 452, cial Trust 331 Ark. 962 S.W.2d 792 The trial (1998). court has wide discretion in a motion for mis granting denying trial, discretion, and absent an abuse of that the decision will not be disturbed on Id. A mistrial will be where appeal. only granted could not have been any possible removed an admo prejudice nition 180, to the Balentine v. 327 Ark. jury. Sparkman, S.W.2d 647 (1997). When there is doubt as to whether the trial mistrial, court abused its discretion in a a failure to denying a instruction or an request cautionary admonition will a negate Casebier, 440, mistrial motion. Noblesv. 327 Ark. 938 S.W.2d 849 (1997). Additionally, motions for mistrial must be objections Smith, made at the first 330 Ark. 953 S.W.2d opportunity. Likewise, 870. a preserve point appeal, objection proper must be asserted at the first Id. opportunity.

Here, counsel did not at the Appellant’s first object instead, he waited until after he opportunity; had continued ques the witness. counsel did tioning not move for a mis Additionally, trial until case-in-chief, and, after had their Appellees presented then, even he did not instruction or an admo request cautionary Moreover, nition. stated for the grounds mistrial were differ ent than those stated for the this objection. Accordingly, point for our review on preserved appeal. bar, we conclude

Notwithstanding procedural the relevance Appellant’s remarks the trial court’s questioning not amount to a сomment did line of cross-examination particular 509; Echols, War 936 S.W.2d the evidence. See on The trial court State, 97 (1981). Ark. 613 S.W.2d ren v. limits on cross-examination reasonable has wide latitude to impose or confusion of issues interrogation concerns about based upon State, 111, v. 317 Ark. relevant. Larimore that is only marginally 303, State, v. 301 Ark. 783 Bowden 570 (1994) (citing 877 S.W.2d discretion will not disturb this upon 842 We S.W.2d (1990)). of that discretion. Id. of an abuse review absent showing 97, 99, 231, 234, the Warren, Ark. 613 S.W.2d In 272 the trial court and to the defendant’s State objected questioning, make? difference does it me is what “What’s responded, puzzling After an in-cham is what I’m I don’t think it’s relevant saying.” conference, continue court allowed defendant to bers the trial court, affirmed the trial This court with that line of questioning. did not into the court’s relevancy holding questioning court stated: comment on the evidence. This amount to a in relevancecould influencethe jury if this into Clearly, inquiry reversed, manner, but since the the case must be appellant any after the the line of questioning inquiry, was allowedto pursue to be inference on credibility,weight we can see no possible other matter. or given, any Here, the court at 99. trial

Id. at 613 S.W.2d permitted Stills; at the Mrs. defense counsel wide latitude cross-examining comments, cross-examination of the wit- of the trial court’s point her had been on for one one-half ness diary going concerning Furthermore, allowed to con- two hours. defense counsel was no there was tinue with his line of Accordingly, questioning. abuse of discretion. Instructionon Loss David Stills’s

VIII. Earning Capacity of reversal, it was for For her argues eighth point David the trial to instruct the concerning error for court jury there was no beсause Stills’sclaim of loss of earning proof capacity asserts that evi- admitted the trial. She any of such loss during issue too this speculative on dence by Appellees presented that the trial She decision. also argues to the be submitted jury toMars testimony beyond Thomas give in allowing court erred We disagree. statements deposition. the of his given scope are and loss of earning capacity Loss of earnings Brown, 278 Ark. of Cates v. elements damage. two separate loss of from earning (1983). resulting S.W.2d 658 Damage Id. The to earn in the future. of the is the loss ability capacity of ele the to earn of the gravamen capacity impairment however, not, does require of this element ment. Id. Proof Id. of loss of future or detail as does wages. proof same specificity that the can observe The reason is appearance jury his that will injuries nature impair age, plaintiff, sustain Id. A may to earn. serious permanent injury capacity the issue of loss jury. the submission of earning capacity Garrison, This 829 (1992). S.W.2d Gipson is entitled to a instruc held that a jury court has consistently party law, of the and there is some is a correct tion when it statement instruction. basis in the evidence giving support 355; Co., 666, Yocumv. 328 Ark. 945 S.W.2d Coca-Cola Bottling 180, Holder, State, 315 Parker (1996); S.W.2d 307, Thus, the relevant Ark. 867 S.W.2d 436 (1993). inquiry was some of Stills’sloss of earning whether there evidence capac We conclude there was. ity. testified about his law at Fayetteville

David Stills practice incident, He stated that before law firm of Everett Mars. work, domestic-relations thirty forty practice percent in and that to fifteen consisted of ten percent representing peоple incident, after the he no criminal cases. He stated that longer cases, be he feels that he could not takes criminal because compas- clients and that he is uncomfortable being sionate to his generally Likewise, stated he no does he longer around such persons. a lot of much work because such work domestic-relations requires basis, that, after incident client on a contact day-to-day Edwards, he does like around clients. with being he hired as a full-time attor- Everett testified that Stills John He at the bar examination. his firm after Stills right passed ney stated that Stills was had a for the good lawyer, common grasp of common and related problems well to people, He people. described his as trial practice mostly in such a practice, stating one has to take divorce and criminal practice, cases. He stated that has Stills had a hard time from the and that recovering kidnapping, Stills is not the that he was before lawyer today March 1995. Everett confirmed Stills’s refusal to involved in criminal and get domestic-relations cases and stated that he did not think Stills would ever do that kind of work again.

Thomas Mars testified that when he Everett’s firm joined 1993, he was aware of Stills’s He stated that legal ability. consider- had, the level of he ing Stills was not experience the best only with, that he had ever young lawyer worked but the best young that he had known in the lawyer He stated that community. before the he had talked to Stills kidnapping, about how he could and build his improve practice more involved in the becoming commercial cases that Mars handled. He stated that typically well, the firm as a whole did duе in to fees part resulting from some cases on which big the firm had worked. He added that if Stills had been able to show and continue up he working, would have been cases, able to work on those too. He stated that neither he nor Everett felt comfortable Stills cases in giving and that he does not feel currently comfortable Stills cases giving like he had in He stated that he past. can Stills work give under close wherein he is able to supervision, monitor his per- formance. He stated that after the incident the partners agreed that Stills would receive seven fees, of the law percent firm’s while the other three in the firm received lawyers thirty-one percent. He explained: David,

And I would incident, have never viewed to this prior as having less than one-fourth of the value of any other partner in the law firm. And so I don’t know what I percentage have might that, to him if I had assigned been incident, on but voting for this — but I know it would have been it would have been than higher seven I percent. don’t I could suppose guess about what it would been, have but it would have been more than a of couple per- I, know, centage points higher as, because you him perceived you know, of, know, as having in the something range you maybe half the value of the rest of the partners. because he Simply had and, base half the client and of experience the years about half know, But, I that thought know, else. you everything half of you clear be a should pretty percent to David seven assign decision firm with our his future concern about him of our indication to not, of the stretch any under and I could performance or recognition it as myself promotion сharacterize imagination, of his value. evidence some testimony

The provides foregoing aby a result of being kidnapped as loss of earning capacity Stills’s evidence Edwards, was sufficient client, March 1995. There in Joe forced to were not that the on this issue such jurors presented such, not err the trial court did As future loss. as any speculate the issue of loss of earning capacity. on jury instructing deter is to be in a claim for loss earning capacity “Recovery of the common knowledge experi mined by application the case.” circumstances of to the facts and ence of the jurors at 832 Coleman at 824 S.W.2d (citing Gipson, we (1978)). Accordingly, Ark. 565 S.W.2d 426 Cathey, this on argument point. reject Appellant’s that the trial court further argument We reject Appellant’s of Stills’s Mars’s opinion erred allowing Appellees present with concerned that she takes issue The testimony damages. firm made in 1994 and particularly amount money $1,650,000), for the firm (making had been a year good on those cases. was not able to work Appellant but that Stills those that had Stills worked on that such asserts testimony implies cases, in 1995. he have made more money Appellant would that it went on the beyond testimony ground objected and that the trial in his testified Mars deposition, previously be limited to his ruled that Mars would dep- court had previously The trial of damages. osition testimony regarding computation had the door it on the basis that opened court allowed Appellant did witnesses on that issue. with her of other Appellant questions door, had the trial court’s that she not contest ruling opened nor does she on appeal. сross-examined reflects that

The record he and whether much he earned in 1995 how Stills regarding $30,000 that he fee that Stills made a year. replied contingency had not made at all in fees 1995. We thus cannot that the any say trial court abused in its discretion Mars’s about allowing testimony the income and the firm in fees received 1995. cross- Appellant’s examination of Stills door to that fine of opened questioning. Willis, 412, Likewise, See Ark. 977 S.W.2d 890. we reject that she was denied argument Appellant’s timely discovery Mars’s We will not reverse the trial court’s testimony. discovery Lukas, 74, absent an abuse of discretion. Stein v. ruling 823 S.W.2d 832 (1992). . . . on. early both sides agreed and cutoffs that ery deadlines and all all the evidence an accessto needed equal

Both sides side that [Appellant’s] to me indicates And the evidence records. her, Courchaine, a licensed do call you or what knew about Dr. That name back there. way a or just psychologist psychologist, her, fine, that’s all and choose you depose to you known if if to let isn’t Judge going diceand say, “Surely chooseto roll the you know, lose, to live in,” just got why,you you’ve and you thoserecords Furthermore,I feel that you way. and I’m sorry withtheruling, to me in submitted you recordthat it’s not an note affidavit not what that that’s saying Dr. Courchaine.Fm not Prichard of Parks. She stated that she was the office timony Janet of Clinical manager Fayetteville Community Psychology P.A., and that of her duties included the mainte Counseling, part nance of the notes of their visits with clients. She psychologists’ notes, that stated Plaintiffs Exhibit Dr. Courchaine’s was a record of acts or events that had been made at or near the time that occurred. Dr. She Courchаine’s initials and they recognized on the notes. She stated that it was Dr. Courchaine’s signature her notes at home on her initial her practice type computer, entries, and then them to Parks. She stated that typewritten bring she these records and that she has a routinely, kept regular practice of the information that comes from client interaction. recording Based on this we conclude that the trial court did not testimony, abuse its in discretion the notes under the business- admitting in records Rule 803(6). exception that the lack the they no for this argu cites authority

or confuse jury. Appellant Dr. from ment other than the unsworn testimony proffered hers, Edwards’s. As that the words used were not Courchaine such, not consider this We will we do not consider argument. of error that are by convincing legal assignments unsupported Co., Paul & Marine Ins. v. St. Fire authority argument. Berry 553, Ark. 944 S.W.2d 838 (1997). 328 testi- note that the trial court did not admit We proffered offered, fact that it was after due to the untimely long mony reflects deadlines had The trial court’s passed. ruling discovery that the trial court that chose to “roll the dice” and bet with the to allow admission of the notes. We was not agree going dur- could have Dr. Courchaine trial court that Appellant deposed fault that was and that it is no one’s the time discovery open, ing The trial court has that such action was not taken. but Appellant’s and we will not in matters wide discretion discovery, pertaining 74, Stein, that 308 Ark. reverse absent an abuse of discretion. 832. S.W.2d

X. CumulativeError reversal, For her final point Appellant argues denied her and following rulings individually cumulatively her husband a fair trial. We do not reach the merits of this cumu lative-error as failed to make a cumulative- аrgument, Appellant error below. We have held that an objection previously appellant a cumulative-error must show that there were asserting argument individual errors and that the cumulative- objections alleged error was made to the trial court and a was objection ruling Willis, 412, 890; State, obtained. 334 Ark. 977 S.W.2d Britt v. Munson, 334 Ark. 974 S.W.2d 436 331 Ark. (1998); will, however, S.W.2d 391. We consider the merits of the indi vidual of error where was made below. assignments objection Britt, 974 S.W.2d 436.

A. WeddingPhotograph The first error involves the trial alleged court’s admission of rebuttal. Appellees’ wedding photograph during Appellant argues exhibit, that the not disclosed as an photograph properly evidence, it was rebuttal and that it was improper prejudicially used in rebuttal when closing counsel tore argument Appellees’ half, as an of how Edwards’s photograph actions example trial, however, tore their At apart marriage. Appellant’s only to the was that it was not objection rebuttal photograph proper evidence. The trial court ruled that even could though Appellees case-in-chief, have introduced the their it was photograph during to rebut evidence that David could proper Stills Appellant’s commit to his that he was not able to be mar- marriage, happily ried, and that the was doomed. marriage of rebuttal evidence lies within the

Admissibility court, discretion of the trial and we will not reverse absent a State, 285, of abuse of that discretion. Bell v. showing 334 Ark. 973 S.W.2d 806 Genuine rebuttal is evidence that (1998). is matters; however, offered in to new the fact that the evi reply dence could have been in the case-in-chief does ‍​​‌‌‌‌‌​‌‌​​​​​‌​‌‌‌​​‌‌​​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​‌‌​​‌‍not presented its introduction on rebuttal if it serves to refute preclude evidence Here, raised the defense. Id. the was admitted by to photograph

515 an had that unhappy defense’s contention Appellees rebut the such, the trial court has shown that not As marriage. Appellant the evidence. in its discretion abused permitting Acid B. Demonstration in the court erred allowing that trial argues Appellant acid on a rock muriatic a demonstration using to Appellees present the of what it an accurate re-enactment the that was not on basis that was thus basement and it prohib- had occurred in Edwards’s ited Rule 403. We disagree. evi use of demonstrative

The admissibility of trial wide discretion the dence a matter within the is falling 944 S.W.2d 838. When test court. Ark. Berry, the an to reenact the original is happening, experiment attempt be similar elements of the must substantially essential experiment Motor those at time of the accident. Carr Suzuki the existing When, Co., however, an Ark. 655 S.W.2d 364 (1983). traits and of is to show the designed capacities experiment general is even involved in the it admissible though material controversy, the the it does not conform to conditions surrounding litigated Carr, Id. on the in the trial court ruled situation. holding Relying that the would be allowed show demonstration jury The trial court did abuse chemical characteristics of acid. its discretion. Cross-Examination Dr.

C. Philip Barling erred trial court her denying argues voir dire Dr. Barling concerning opportunity expert Philip her him. cross-examination of denying qualifications ample There no merit to this argument. in a a witness as an

Whether qualifies particular expert discretion, field is the trial and we will not a matter within court’s Smith, an reverse such а absent abuse of that discretion. decision 870. If reasonable basis exists dem S.W.2d any has the subject witness onstrating knowledge beyond that of is admissible as evidence ordinary knowledge, expert testi- Id. The test of admissibility expert testimony. general it will trier whether assistthe of fact in mony understanding evidence a fact Id. in issue. determining presented

Here, defense counsel to Dr. objected Barling’s quali fications to an on whether Edwards had the give opinion ability that what he (1) was was comprehend doing legally wrong (2) conform his behavior to the of the law. requirements Counsel asked to voir direthe trial witness. The court found that a proper laid, foundation had been that he had specifically practiced psy for almost had some chology in forensic twenty years, training and had testified as an psychology, witness on expert psychological matters in that, various courts of state. The this trial stated judge heard, based on the he he felt qualifications it was more appropri ate to into the doctor’s permit Appellant go particular qualifica tions on cross-examination. This was well within the ruling trial court’s discretion. we merit find no to the

Similarly, issue the trial court denied a full to cross-examine Appellant Dr. opportunity the bases for his Barling concerning It from the opinion. appears record that cross-examination although at one interrupted cross-examination of the point, witness was Appellant’s otherwise unrestricted.

D. Rebuttal Argument Lastly, the trial court erred Appellant argues to allow her an refusing rebut opportunity Appellees’ closing words, mental argument Edwards’s state. In other regarding wanted tо be make able to Appellant for the argument closing defense and then another clos argument following plaintiffs’ rebuttal ing argument. Because cites no nor authority for this we will convincing not address it. argument point, Affirmed.

Imber dissent. Thornton, JJ., Imber, I Justice, dissenting.

Annabelle Clinton agree with the all on majority points its appeal except conclusion with to the of Ken regard Edwards’s testi- admissibility latter, With to the I must mony. regard the dissent’s conclu- join

517 R. under Ark. inadmissible testimony that Mr. Edwards’s sion 404(b). Evid. case, are In this we Justice, dissenting.

Ray Thornton, be of must what insanity asked to determine degree for his a in order to avoid damages defendant punitive by proved that a is no a victim. There question per acts outrageous against he and can be held account is the inflicts hable for injury petrator which result both damages able for the actual compensatory However, actions, as of mental from his his capacity. regardless are justified only out the damages majority, punitive pointed by or with such conscious the are committed when acts wantonly be the acts malice may indifference to the of consequences Doss, 320 Ark. Hunt Inc. v. inferred. B. Transp., J. 464 (1995). S.W.2d decided in The also notes that in cases other juris- majority that, dictions, been in order to a has established justify requirement that the “was the must show defendant plaintiff punitive damages, of, at the but was men- not insane the time of wrongs complained he had to commit the acts and that tally competent legal capacity the with elements of as would such alleged justify aggravation Carrier, 198 award of v. S.E. 619 Bryant (N.C. punitive damages.” 1938). view,

In the s to that the burden show my plaintiff proof intent, defendant had to form a rational as capacity required case, be award of in a civil should not justify punitive damages the same as of a defendant in order that degree proof required as an defense to establish affirmative in a criminal legal insanity action. This one of first impression, majority question will resolve issue. opinion

However, the con- I write with disagreement express my clusion of Ken reached majority by regarding admissibility act Edwards’s bad committed concerning by testimony prior defendant. The defendant substantial presented expert testimony and other evidence that he was from and delu- suffering psychosis sions that him to commit Stills. The defend- drove the acts against ant contends who could not form a he was delusional person dam- rational intent as an award punitive required support Saboda, See Mut. Risk Ins. Co. v. ages. 489 So. 2d 768 Preferred Dist. (Fla. Ct. To counter 1986). this evidence of mental App. evidence, Stills introduced incapacity, over defendant’s objections, aof bad act committed previous Edwards against nephew, Ken Edwards. The State, out majority correctly points Diffee

Ark. 894 S.W.2d 564 (1995) establishes the correct standard evidence aof bad act to allowing show method of prior opera- Here, tion. we are not concerned with method of but operation, are However, concerned with intent or motive. as we stated in the witness’s Diffee, did not testimony of pass requirements Ark. R. Evid. 404(b) absent threats or other evidence specific of an intent or to inflict harm or take his life. at plan Diffee added). State, We out (emphasis in clearly pointed Abernathy 325 Ark. 925 S.W.2d 380 that while the (1996), erroneously admitted evidence in was offеred to show method of opera- Diffee tion, the of requirement circumstances between similarity misconduct and the uncharged crime also when charged applies this, the State to (or, parallel offers the plaintiff) evidence to intent or the absence prove of mistake. at 64-65 Abernathy case, In the (emphasis added). instant claims that the majority incidents Ken Edwards and Stills are involving similar. The very location, differences in the two incidents include: choice of and method of weapon, restraint. Because of these and many differences, other I believe the evidence of this bad act fails prior to meet the first test as set out in which states that both acts Dffee must be committed with the same or similar methodol- strikingly at 675. ogy. there was Additionally, no evidence shown Diffee that Edwards made threat any type Stills specific against during his assault on Ken. I do not read Ark. R. Evid. 404(b) say motive or intent is shown because threats just were made specific to each victim. If had Ken, Edwards made threats Stills against then the bad act to show intent or prior might motive to inflict go harm Stills. upon

Arkansas Rules of Evidence Rule 404(b) provides: Crimes,

Other crimes, or Acts. Wrongs, Evidenceof other or acts is not wrongs, admissibletoprovethe character a person order to show that he acted in conformity therewith. It may, however, such as proof for other purposes, be admissible intent, motive, iden- knowledge, plan, preparation, opportunity, of mistakeor accident. or absence tity, Evid. 404(b) supplied). Ark. Rule. (1998)(emphasis view, error in committed reversible the trial court In my that, seven months before of evidence the admission allowing Stills, lured his Ken Edwards had assault nephew, upon outrageous Edwards, he him in a berserk a warehouse where assaulted wife, manner, and of him of an affair with having accusing to kill him. conspiring this third

I fail to see how Edwards’s actions go against person Stills, mental intent or motive to hurt or his to show capacity conduct such lack of mental to rationally outrageous capacity Ken, does not show behavior. because Edwards assaulted Simply showed that seven intent to hurt Stills. Even if the any testimony Ken, intent it months earlier Edwards had the to assault necessary intent, does not follow that Edwards had the or could form later, intent months to hurt Stills. seven State, In Rowdean v. 655 S.W.2d 413 (1983) murder for was convicted of first shooting appellant degree a Evidence admitted to show that ear- man outside nightclub. lier in the the a on a of a same night appellant pulled gun patron drive-in. We held that the should not have been admit- testimony ted into evidence because it was unrelated to the second wholly State, Likewise, event. held in Lincolnv. 12 Court of Appeals 46, that evidence that the Ark. 670 S.W.2d 819 (1984), App. man, had an with another and waved appellant argument pistol around earlier in same during argument evening admitted, it was occurred should not have been since shooting was, therefore, unrelated to the and irrelevant. shooting 603, State, held in v. 786 S.W.2d 114 We Starling that the had force defendant used (1990), testimony physical threatened kill her with a and abused his his wife, gun, against motive,intent, Id. at wife wasadmissibleto show to kill his plan wife. supplied). (emphasis The rule seems to be that when the bad act was prior directed toward victim and not to third it could be party admissible, but when the bad act directed is a third prior against it not admissible. I cannot with the con- аgree party majority’s clusion that Edwards’s actions show intent or against nephew hurt motive to Stills. The effect this evidence had was to only inflame the that Edwards had committed a some- jury by showing what similar bad act several months value of Any prior. probative this evidence was of unfair substantially outweighed by danger Thus, the evidence was inadmissible under Ark. R. prejudice. Evid. 403. I

Because believe that the admission of this evidence inwas violation of Ark. R. Evid. 404(b) was reversible error, and because of about standard of mental my misgivings to form the intent to sustain an competency required necessary action, award of in a civil I dissent. punitive damages respectfully M. HEAGERTY STATE of Arkansas Joshua 98-848 983 S.W.2d 908 Court of Arkansas Supreme delivered December

Opinion denied rehearing January [Petition 1999.] notes Appellant that Rule 408 is not correctly a blanket the admission of all prohibition against evidence concern- 498 v. 327 Auto Inc. Starkey, Ozark Transp., offers compromise. ing v. TomGibson 227, McKenzie Ark. S.W.2d 175 (1997) (citing 937 does, 326, The rule Inc., 653 Ford, (1988)). Ark. 749 S.W.2d 295 the evidence when however, the such introduction prohibit of, for, or amount “liability invalidity evidence is offered prove 332-33, McKenzie, Ark. at claim.” 295 of the claim or other any Because 408). 657 A.R.E. Rule Appel- at (quoting S.W.2d evidence Stills’s Rule credibility, lant offered this to impeach however, introduction; that does mean its does not bar the admissible. Id. Relevance of is such evidence automatically 401, well be under Rule as still determined A.R.E. evidence must Id. The deter- under Rules 402 and 403. as A.R.E. admissibility the value of evidence admitting mination of whether probative effect is left to is its substantially outweighed by prejudicial court, manifest a abuse sound discretion of trial absent discretion, the trial court’s decision. Sex- we will not disturb 948 S.W.2d 388 Firm, ton Lаw P.A. Milligan, (1997). that the was asserts evidence proper Appellant reconsider the trial In a motion to Stills’s credibility. impeach had recalled the events that court’s counsel ruling, Appellant’s transpired: 17, 1997, for David Stills On counsel Monday, February counsel the Defendant that if Edward informed [sic] Joe $800,000.00, case both this case and criminal would pay a recommendation of reduced fel- away; would go specifically, con- with certain conditions charge; probation regarding ony tinued medical care. what, from if David Stills the motion anything, Notably missing in the outcome of the criminal case. said his interest regarding Indeed, made no of what Stills’s testimony proffer be, that Stills would nor did she offer evidence personally any such, do not see how the evidence would made the offer. As we reliance on be to show Stills’slack of relevant veracity. Appellant’s Inc., Ark. 937 S.W.2d in Ozark Auto holding Transp., the evidence admitted that case is thus because misplaced, witness whose testimony letter written opposing Moreover, counsel contested side wished to impeach. Appellees’

Notes

IX. Notes Psychologist’s reversal, For her ninth for that the point Appellant argues Courchaine, trial erred court the notes of Dr. Karen admitting who counseled Edwards and other psychologist members family and March 1995. The notes contained during February one entry 1995, from and three entries from March February one including from March before the and one from day kidnapping, March after the incident. claims that the day notes were not admissible because were lacked an they hearsay, foundation, were and denied her the adequate unfairly prejudicial, to cross-examine the witness. opportunity The trial court admitted the notes under both the business- rule, records and medical-records to the exceptions hearsay pursu- ant Co., to this court’s in Benson v. Shuler holding Drilling Ark. 871 S.W.2d 552 The trial court overruled (1994). that the notes lacked the Appellant’s objection indicia of necessary trustworthiness and would mislead the the trial jury. Additionally, court overruled motion to take Courchaine’s Appellant’s deposi- tion over the on the that the for discov- telephone ground period closed, had been and that ery would be long Appellees prejudiced her at such a late date. The trial court stated: deposing here’s in these nothing recordsto indicate to me that these [T] statementswere made other than to a truthful get diagnosis treatment of Mr. Edwards as well as the family counseling Now, Mrs. and the Edwards family. theserecords argument don’tmeanwhat canstill theysay,you makethatto the when jury you mean, that’sherconclusionandit doesn’tshowwords.I say they’re Now, and that quotes canstillbemade. we had discov- argument

notes your from to, state- it wasn’tsworn but the recordthat she’stold but you, just for counsel, with Motion your in the record they’re madeby ments reasons, feel that side is your I don’t in Limine. But for those out there. limited to the evidence that was being unduly [Emphasis added.] not notes were that Dr. Courchaine’s argues not, at the time she coun- because she was medical records proper Edwardses, does not a licensed (Appellant seled psychologist. also her She Ph.D.) the fact that Courchaine had obtained contest 18, 1995, vis- March when Courchaine that the notes from argues records because the notes were not medical ited Edwards jail, needWe reflect that was there for only. Courchaine support admission of the as we affirm the trial court’s reach this argument, 803(6). records to A.R.E. Rule notes as business pursuant offers evidence has the burden one who Generally, 101, Benson, 316 Ark. 871 S.W.2d its showing admissibility. matter the sound The introduction of evidence is a within 552. court, absent an the trial and we will not reverse discretion of Id. Rule of Evidence 803(6) abuse of that discretion. Arkansas rule for the admission of an to the exception hearsay provides a has seven (1) business records. That exception requirements: events, of acts or made at or (3) record or other (2) compilation, occurred, event with (4) near the time the act or person with or from information transmitted by person knowledge, business, conducted in the course of (5) regularly knowledge, kept information, such (7) which has a of recording (6) regular practice or other of the custodian qualified all as known by testimony Benson, witness. 316 Ark. 871 S.W.2d (citing Terry State, 309 Ark. 826 S.W.2d 817 Rule further (1992)). 803(6) that business records will not be admitted if the source of provides of circumstances of indi- information or ‍​​‌‌‌‌‌​‌‌​​​​​‌​‌‌‌​​‌‌​​​‌​‌‌‌‌‌‌‌‌​‌‌​‌​‌‌​​‌‍method preparation cate lack of trustworthiness. Id. Medical records be admissi- may ble under the business-records See Terry, exception. 826 S.W.2d 817. trial, At admitted the notes the tes Appellees through

notes Appellant additionally argues necessary indicia of trustworthiness. takes issue with Appellant particularly one statement in the from March which reflects: entry stated that he was aware of his actions consequences Joe and that he would most time in at which likely spend prison, he stаted that he was unsure whether or not he point would become suicidalin the future. contends that this statement did not come from Appellant Edwards; rather, she asserts that it was a conclusion reached Dr. by Courchaine. evidence that Dr. Courchaine Appellant proffered hers, would that the was not testify Edwards’s. foregoing language The crux of this to the words argument objection Appellant’s that Edwards was “aware of his actions.” She consequences contends that those words are terms art and would not have such, been used Edwards his own situation. by As describing reached was a conclusion statement that the she asserts foregoing Edwards. Courchaine, from a verbatim statement Dr. taken statement that the out complete Appellees point notes, regardless trustworthiness of in context underscores Edwards. We agree were used by those exact words of whether statement indi The of the statement. assessment with Appellees’ time in some that he would was aware spend cates that Edwards This evidence highly proba result of his actions. as a prison had occurred. after the incident mental state day tive of his state foregoing we argument reject Appellant’s Similarly, and thus Dr. constituted Courchaine’s expert opinion ment 702 to 705. under A.R.E. Rules foundation required proper testi such did not contain a any expert The statement diagnosis rather, Edwards’s it a reflection of acknowledg was merely mony; Stills. for his actions he against ment that would likely go prison such, its discretion that the trial court abused As we cannot say the notes. admitting the notes should have Lasdy, argues mislead under Rule 403 because would only been excluded

Case Details

Case Name: Edwards v. Stills

Court Name: Supreme Court of Arkansas

Date Published: Dec 21, 1998

Citation: 984 S.W.2d 366

Docket Number: 97-1168

Court Abbreviation: Ark.