Lynch v. Blagg, 847 S.W.2d 32

Lynch v. Blagg

847 S.W.2d 32

Ark.

1993

Check Treatment

Dale LYNCH, County Judge v. Ralph J. BLAGG

92-914

Supreme Court of Arkansas

Opinion delivered February 15, 1993

847 S.W.2d 32

McVay also argues the blood test administered did not comply with the requirements set out in § 5-64-204, a provision of our DWI Omnibus Act, and therefore the test was not admissible. While we have required compliance with the Omnibus Act, we have also held that those requirements are not necessary when the blood test is not ordered by the police or the defendant for use as evidence at trial, but has been ordered by hospital personnel for their own use in connection with the treatment of the patient. Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). Here McVay does not contend that either he or the police ordered the blood test for use at a criminal trial and the record reveals that the blood test was in fact ordered by hospital personnel for their own use.

At his last point, McVay argues that the trial court erred in admitting the testimony of Dr. Stockstill, a pathologist at the admitting hospital. McVay objected to his testimony on the basis of a particular calculation Stockstill used to determine what McVay‘s blood alcohol level was at the time of the accident. McVay argues that this calculation is prejudicial, improper and unfair under Ark. R. Evid. 403 and permits the jury to speculate. McVay did not object to the calculation as being faulty nor to Stockstill‘s qualifications to testify. The admission of such information is within the discretion of the trial court under Ark. R. Evid. 103, 403 and 703, and McVay has not demonstrated any abuse of that discretion.

Affirmed.

H.G. Foster, for appellant.

M. Edward Morgan, for appellee.

TOM GLAZE, Justice. The appellee, an attorney appointed to represent an indigent charged with murder, petitioned the trial court for $18,020.00 in attorney‘s fees and $435.00 in costs. No response or objection to the appellee‘s petition was filed or made. The trial court subsequently entered an order granting attorney‘s fees in the amount of $12,900.00 and $435.00 in expenses for a total award of $13,350.00. In its order the trial court specifically recognized our holding in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), wherein we declared the statutory fee “caps” contained in Ark. Code Ann. § 16-92-108 (1987) were unconstitutional; we further stated that, under the circumstances in that case, court-appointed attorneys are entitled to “just compensation” to reasonably compensate them for services rendered. In awarding appellee his fees and expenses, the trial court made no mention in its order as to who was to pay such award. Nor is there anything in the record showing any attempt by appellee to collect the fees and expenses awarded him.

Although appellant made no objection below to the award obtained by appellee, appellant for the first on appeal argues the trial court erred in interpreting § 16-92-108 as imposing liability on the county for the payment of attorney‘s fees. He also argues the trial court misapplied our holding in the Arnold case to the facts here because the appellee here volunteered his services prior to the decision in Arnold.

Appellant acknowledges the well-settled rule that issues not raised in the trial court will not be considered for the first time on appeal. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). However, appellant cites Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), wherein this court listed the four rare exceptions when it will review a case on appeal in the absence of an appropriate objection in the trial court. He suggests the court should add another exception where the court would review any issue which could be characterized as a “difficult and novel question” even though that question was not argued at trial. Of course, appellant further opines the issues raised in this appeal come within the “difficult and novel question” category and should be reviewed. We must reject appellant‘s argument largely because such a proposed exception offers little or no definition. What might be considered a difficult or novel question is often in the eyes of the beholder and to adopt such a vague and undefined exception would arguably be adopting a version of the federal court‘s “plain error” rule which this court has steadfastly refused to do.

For the above reasons, we affirm.

HOLT, C.J. and BROWN, J., concur.

ROBERT L. BROWN, Justice, concurring. I concur in this opinion but write only to clarify that we declared the statutory fee “caps” in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), to be unconstitutional as applied to that case.