text:
    Charles A.D. BLISS and Sharon BLISS v. STATE of Arkansas
    CR 85-194
    708 S.W.2d 74
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986
    [Rehearing denied May 27, 1986.]

      Janice Williams Wheeler and C.P. Christian, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   George Rose Smith, Justice.

This is a second appeal. In 1983 the appellants Charles and Sharon Bliss, husband and wife, were separately charged with the rape of Sharon’s son, who was seven or eight years old when the acts occurred. The child was Charles’s stepson. The original informations charged each defendant with rape by sexual intercourse or by deviate sexual activity.

The two cases were consolidated before the first trial, at which the jury found each defendant guilty of rape. Upon the first appeal we held that the trial judge had erred in not requiring the prosecutor to file a bill of particulars and in not recusing with respect to a motion to suppress a search conducted on the authority of a warrant issued by the judge himself. Bliss and Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). On remand the prosecutor promptly filed a bill of particulars, charging Charles with rape by deviate sexual activity and Sharon with rape by sexual intercourse or by deviate sexual activity.

At a second trial the defendants were again found guilty. Each was sentenced to life imprisonment and a $15,000 fine. Eight grounds for reversal are argued in the appellants’ brief. We perceive no prejudicial error in the points that are presented or in any other objection abstracted for our consideration.

The sufficiency of the evidence not being questioned, we need not narrate the testimony in detail. The State’s proof showed that the criminal acts extended over a substantial period of time. Both defendants engaged in deviate sexual acts with the child, and Sharon also had sexual intercourse with her son. Eventually the child was placed in the custody of his own father.

The first point for reversal, applicable only to Sharon, and a second point, applicable to both appellants, present the same misconception of law and may be answered together. It is argued on the authority of Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983), that rape by sexual intercourse and rape by deviate sexual activity are two separate crimes. Hence it was error, Sharon insists, for the trial court to submit to the jury the charge of rape by sexual intercourse “and/or” by deviate sexual activity. Both defendants argue that the second trial constituted double jeopardy, because it is impossible to determine from the jury’s general verdicts at the first trial which form of rape the jury found each defendant to have committed. Therefore, it is contended, the second jury may have found each guilty of a crime of which he or she had been found not guilty at the first trial.

The fallacy in these arguments is that rape, as defined by our statute, is not two different crimes. It is one crime that may be committed by two different acts. Comparably, an autopsy of a murder victim’s body might disclose a stab wound and a gunshot wound, either of which may have been fatal if inflicted in quick succession. Obviously the State could list both possibilities in a bill of particulars, and the jury could be instructed accordingly.

Here the prosecuting attorney, in filing the required bill of particulars, put the defendants on notice of his position: “The State contends that there is only one crime of rape under the statutory law of the State of Arkansas, and that the crime of rape can be committed either [by sexual intercourse or by deviate sexual activity]. The State contends further that an alternative or disjunctive charging of the crime of rape by either sexual intercourse or deviate sexual activity is adequate, proper and sufficient notice to the defendant so charged.” There follows a request that the jury be so instructed, which was eventually done.

The prosecutor’s position was correct. Two months after that bill of particulars was filed in the trial court we took a similar position in Wood v. State, 287 Ark. 203, 697 S.W.2d 884 (1985). We put the matter finally at rest in Cokeley v. State, 288 Ark. 349, 705 S.W.2d 425 (1986), expressly overruling the Clayborn decision, supra. Thus the defendants were fully informed of the State’s position before the trial. The two arguments for reversal are without merit.

Two other points urged by the appellants may be discussed together. In our first opinion we held that Judge Ford should not have presided at the motion to suppress. He actually granted the motion — an action that was favorable to the defense — but the State was allowed to introduce on rebuttal a number of photographs that were discovered during the search. None of those photographs were offered at the second trial.

Before the retrial, defense counsel asked for a hearing on the motion to suppress the evidence seized during the search. This time the State did not contest the motion. Judge Ford offered to have another judge sign an order granting the motion, but that did not satisfy defense counsel. She insisted upon a hearing, so that she could be certain about what had been discovered during the search. The judge pointed out that he could not compel the State to produce evidence with respect to a motion it was not contesting. There was a mild exchange of remarks between Judge Ford and defense counsel, during which the judge said to her that his remarks might be prejudicial “if you were on trial, but you are not on trial.”

During that colloquy defense counsel made an oral request that Judge Ford recuse for the whole case. The request appears to have been made solely as a result of the colloquy. The judge observed that his remarks had been invited. The request for recusal was not granted. Our study of the record convinces us that there was no reason for Judge Ford to grant counsel’s oral motion that he recuse from the entire case. Rather to the contrary, the judge exhibited a great deal of patience in the matter. There is no instance in which it is suggested that he acted with unfairness toward the two defendants.

In the related point it is argued that since there was no hearing on the motion to suppress, counsel could not be sure in advance that the State would not introduce evidence obtained during the search. A complete answer is that no such evidence was in fact introduced or even offered. Evidence discovered during the search would necessarily have been tangible, not testimonial, but the only four exhibits introduced by the State were three juvenile court orders and a custody agreement. It would be pointless for us to order a new trial on the basis of a fear that never materialized.

In the appellants’ fifth point it is argued that three jurors should have been excused for cause. The statute provides that an attorney and client relationship may be a basis for a finding of implied bias. Ark. Stat. Ann. § 43-1920 (Repl. 1977). One juror said that her husband and son had been represented by the prosecuting attorney in a property matter, and another said the prosecutor had represented her adult daughter two years earlier. The trial judge did not abuse his discretion in denying the challenges for cause, for the jurors did not appear to be biased. A third juror was married to a police officer, but she served only as the alternate juror and did not participate in the deliberations. No error is shown.

The court properly denied a request that the two defendants be tried separately. At the first trial they were tried together with no suggestion of any resulting prejudice. Their defenses were not antagonistic, being general denials that the rapes took place. Neither defendant chose to testify. The argument in favor of a severance is unsupported by reference to any specific fact indicating that either defendant suffered prejudice from the joint trial.

A seventh point, concerning asserted misconduct on the part of jurors, hardly deserves discussion. After the trial the defense filed a motion for a new trial, attaching three affidavits. Two of the affidavits had no real substance. The third said that during a lunch hour the affiant had heard two jurors discussing a witness, about whom one juror made a derogatory remark. The court conducted a hearing at which both the jurors testified. They denied any impropriety and explained the incident to the court’s satisfaction. Their testimony was practically undisputed, as the affiant was not called to contradict it. No prejudicial error appears.

In the final point it is asserted that the court allowed the State to introduce inadmissible hearsay evidence. A youthful witness for the prosecution, Daniel Matheny, admitted on cross examination that he had not told the truth when he first talked to a police officer. On redirect examination the court permitted him to explain that his parents had not wanted him to come to Arkansas to testify, because they said he had been emotionally disturbed by his exposure to sexual experiences at the Blisses’ home. The court permitted the testimony, not to show that his parents’ statements about his sexual experiences were true, but only to show that the statements had been made, explaining his motive in not telling the officer the truth.

The court’s ruling was correct. A statement is not inadmissible as being hearsay if it is not offered to prove the truth of the matter asserted. Uniform Evidence Rule 801(c); Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981). Since the testimony was admissible for one purpose, the defendants’ objections were insufficient without a specific request that the court instruct the jury to consider the testimony only for its admissible purpose (to show motive). Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). There was no request for such a limiting instruction.

Affirmed.

Purtle, J., not participating.

Dudley, J., concurs.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    The ESTATE of Alice E. CISCO, Deceased, Kent COXSEY, Executor v. Gerald Lee CISCO, et al.
    85-324
    707 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986

      Coxsey & Coxsey, by. J. Kent Coxsey, for appellant.

      Epley, Epley & Castleberry, Ltd., by: Lewis E. Epley, Jr., for appellees.
   Darrell Hickman, Justice.

This is a will construction case involving pretermitted, or omitted, grandchildren of deceased children. Alice E. Cisco died testate, leaving her estate to seven of her children and one grandchild. The will was executed on November 2,1978. Mrs. Cisco did not mention two children who were deceased at that time: Tommy Donald Cisco and Ethmer Edwin Cisco. On July 7, 1981, a codicil was executed to update her will. In it Mrs. Cisco acknowledged that since she executed her will two of her children had passed away, Bob Cisco and Dale Cisco. Still no mention was made of Tommy Donald Cisco or Ethmer Edwin Cisco. The estate was to be divided between her remaining five children and one grandchild. The children of Tommy and Ethmer Cisco petitioned to take against the will, claiming to be pretermitted heirs. The trial court found in their favor and the estate appeals. We affirm the trial court’s decision.

The will in relevant portions reads:

The rest and residue of my estate, whether real or personal and wherever situate, I hereby devise and bequeath in the following manner:
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, Hugh Cisco.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, R. C. Cisco.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my daughter, June Miller.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, Bob Cisco.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, Jack Cisco.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my daughter, Audrey Cash.
One Eighth (1/8) of my estate, I hereby devise and bequeath unto my son, Dale Cisco.
One Sixteenth (1 /16) of my estate, I hereby devise and bequeath unto my son, Ernest Cisco.
One Sixteenth (1 /16) of my estate, I hereby devise and bequeath unto my grandson, Ricky Cisco.

The codicil in pertinent part reads:

Since the execution of the above referred to Will, two (2) of my sons have died, namely: Bob Cisco and Dale Cisco.
After payment of Paragraph #1 of said Will, I hereby devise and bequeath the rest and residue of my estate in the following manner:
One-sixth (1/6) of my estate, I hereby devise and bequeath unto my son, Hugh Cisco.
One-sixth (1/6) of my estate, I hereby devise and bequeath unto my son, R. C. Cisco.
One-sixth (1/6) of my estate, I hereby devise and bequeath unto my daughter, June Miller.
One-sixth (1/6) of my estate, I hereby devise and bequeath unto my daughter, Audrey Cash.
One-twelfth (1/12) of my estate, I hereby devise and bequeath unto my son, Ernest Cisco.
One-twelfth (1/12) of my estate, I hereby devise and bequeath unto my grandson, Ricky Cisco.
If any of my children should die before I do, I direct that their share revert back into my estate, and be divided to the remaining legatees equivalent to the distribution above set forth.

Ark. Stat. Ann. § 60-507(b) (Repl. 1971) defines a pretermitted heir:

If at the time of the execution of a will there be a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.

The estate claims the appellees’ fathers are part of the class of “my children” in the last sentence of the codicil and, therefore, were not omitted from the will. As a general rule, the testator’s use of a word which describes a class of persons is considered to be sufficient identification of the claimant to preclude the application of the pretermitted heir statute. Annot., 152 A.L.R. 723 (1944); Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996 (1929).

In construing this will, we must determine the intention of the testatrix and give that intention effect. Deal v. Huddleston, 288 Ark. 96, 702 S.W.2d 404 (1986); Yeates v. Yeates, supra. In Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977), we said:

The intention of a testator is to be gathered from the four corners of the instrument itself, considering the language used and giving meaning to all its provisions, if possible to do so. The intention of the testator as expressed in the language of his will prevails if consistent with the rules of law.

The will listed only the children living at the time the will was executed and one grandchild. No class was mentioned, only names. Tommy Donald Cisco and Ethmer Edwin Cisco had already died. The first paragraph of the codicil states that since the execution of her will, two children had died, Bob Cisco and Dale Cisco. The second paragraph bequeathed her estate to her living children and the one grandchild. The last paragraph then stated that if any of her children predeceased her, their shares would revert to the estate to be distributed to the other legatees.

The trial court found:

The wording of the sentence in the codicil and stated above does not name the petitioners or Tommy Donald Cisco or Ethmer Edwin Cisco as a class in the term ‘my children’. This term referred only to the specifically named children remaining from the text of the will which were not specifically named as excluded in the codicil, i.e. Bob Cisco and Dale Cisco. Although ‘any children’ would be syno-nomous with ‘all children’, the key words of limitation are ‘if, ‘should’, and ‘revert’. The testatrix’s intention being children, as named specifically in the codicil, whose death may occur subsequent to the date of the codicil and prior to the date of the testatrix’s death. The children of testatrix who died prior to the date of the making of the testatrix’s Last Will and Testament, i.e. Tommy Donald Cisco and Ethmer Edwin Cisco, were not mentioned specifically or as a member of a class; therefore, the petitioners under the provisions of Ark. Stat. Ann. 60-507(b) are entitled to recover a representative share of the deceased issue of the testatrix as a pretermitted child.

We agree with the trial court that the phrase “my children” was referring to only the children living at the time the codicil was executed. Tommy and Ethmer Cisco were not part of that class because they passed away prior to the execution of the will. Since neither they nor the appellees were specifically mentioned in the will or codicil, the appellees are pretermitted heirs and entitled to share in the estate.

Affirmed.

Purtle, J., not participating.


text:
    Dale WILSON, et al. v. ARKANSAS COUNTY BOARD OF EDUCATION, et al.
    85-275
    707 S.W.2d 768
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986

      Gibson Law Office, by: Charles S. Gibson, for appellants.

      Norman M. Smith, for appellees.

      Friday, Eldredge & Clark, by: Christopher Heller, amicus curiae for DeWitt School District.
   Darrell Hickman, Justice.

This is another case of voluntary school consolidation under Act 445 of 1983.

The St. Charles School District Board of Education unanimously resolved to petition the Arkansas County Board of Education to annex the district to the Dewitt School District. The county board correctly read the pertinent section of Act 445 as being mandatory and granted the petition.

The appellants, patrons of the St. Charles District, opposed the annexation at the county board hearing and raise the sole issue that before allowing annexation, a finding must be made by the county board that the district proposing voluntary annexation was not in compliance with the minimum standards for accreditation of the Quality Education Act, Act 445. The circuit court found no such requirement and we agree.

The Quality Education Act makes provision for school districts to voluntarily petition to merge with an adjoining district between June 1, 1984 and June 1, 1987. Ark. Stat. Ann. § 80-4609 (Supp. 1985). Those districts that recognize that they cannot comply with the new standards are thereby given a choice to decide with which adjoining district they want to merge. We recently decided that Ark. Stat. Ann. § 80-4609 (c) is mandatory; that once a proper petition is filed pursuant to that section, the county board is without discretion to deny it. Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986).

Having no reason to deny the petition, the Arkansas County Board of Education properly granted the petition.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Jeff SHAVER and Eileen SHAVER, Husband and Wife, v. Mark VOWELL
    85-325
    707 S.W.2d 772
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986

      Curtis E. Hogue, for appellants.

      Davis, Cox & Wright, by: Constance G. Clark, for appellee.
   Robert H. Dudley, Justice.

This appeal is from a jury verdict in a suit over a car wreck. We affirm the jury verdict.

Appellant, Eileen Shaver, was driving her automobile on rain-slickened Highway 68 near Marble when a truck suddenly stopped in front of her. She was unable to stop her car without hitting the rear of the truck. Close behind, appellee, Mark Vowell, was unable to stop his car and ran into the rear of appellant’s vehicle. The jury found that appellee was 80% at fault and appellant was 20% at fault. Damages of $5,718.00 were awarded which resulted in a judgment of $4,574.86, after deducting the 20%.

Appellant first contends that there was insufficient evidence to support a finding that she was at fault to any degree as compared to the fault of appellee. She maintains that any negligence on her part in “tapping” the truck in front of her has no bearing on the issue of negligence because that accident was already over when appellee ran into the rear of her car. However, there was substantial evidence that the sequence of events could be viewed as one whole occurrence which was partially occasioned because she was following the truck in front of her too closely, or was traveling too fast, or did not stop her car soon enough.

We do not reverse the verdict of a jury if there is substantial evidence to support it. Shelton v. Firestone Tire & Rubber Co., 281 Ark. 100, 662 S.W.2d 473 (1983). The weighing of fault is peculiarly a jury function and, where there is negligence by all parties, we will rarely disturb that weighing. Harrell Motors, Inc. v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981). Since, on appeal, we view the evidence in the light most favorable to appellee, we will not reverse the jury’s finding that appellant was 20% at fault.

Appellants’ next point for reversal is that the jury verdict was inadequate. The argument merits only limited discussion. Appellant contends that the amounts awarded for the elements of medical expenses and lost income were inadequate, and the jury should have awarded damages for pain and suffering.

The evidence on the elements of damage for medical expenses and lost income was in conflict, and where a jury returns a verdict for substantial damages on conflicting evidence, a judgment entered thereon will not be disturbed on appeal even though the evidence would have sustained a verdict for a greater amount. Pickett Lake Farms v. Sullivan, 245 Ark. 709, 434 S.W.2d 88 (1968).

The jury made no award for pain and suffering experienced in the past by appellant, Eileen Shaver. With respect to that element of damage, it is important to note that she testified that by the time the police arrived at the accident scene she felt no pain and did not believe she was really hurt. In fact, Mrs. Shaver told the investigating police officer that she was not injured. She did not seek medical treatment until four weeks after the accident, and was then treated by Dr. Box, a medical doctor, only one time. Dr. Box did not testify. She later went to Dr. Sevcik, a chiropractor, but she had not seen him in a year and a half. She admitted at trial, and the jury obviously observed, that she could move her head freely up and down and to the side. She testified that the only medication she had ever taken for the pain was Tylenol, and that she only took it “sometimes.” This evidence .was sufficient to create serious doubt in the jury’s mind as to whether appellant, Eileen Shaver, truly experienced pain and suffering sufficient to entitle her to an award of damages.

Affirmed.

Purtle, J., not participating.


text:
    STATE of Arkansas v. Norflet HAMZY, Ralph M. KUYKENDALL, and Dana Keith KUYKENDALL
    CR 85-219
    709 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986
    [Rehearing denied May 27, 1986.]

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellant.

      Omar Greene and R. W. Laster, for appellees.

       Purtle, J., not participating.

   Robert H. Dudley, Justice.

Appellees, Norflet Hamzy, Ralph Kuykendall, and Dana Kuykendall stand charged with keeping a gambling house. The police obtained telephone company records, relating to appellees’ telephone activities, by use of a prosecuting attorney’s subpoena rather than by use of a search warrant. With the information so gained, the police secured search warrants for the homes of two of the appellees and there seized gambling paraphernalia. The appellees filed a motion to suppress the evidence. The trial court granted the motion. The State filed this interlocutory appeal under Ark. Sup. Ct. R. 29(1)(k) and A.R.Cr.P. Rule 36.10. We reverse.

A confidential informant reported to the Little Rock police that a wager could be placed by calling a certain telephone number. For three days the police monitored the informant’s calls to the number and verified that bets could be made by calling the number. The police apparently did not know the names of all of the appellees and did not know the address of the person or persons who held the number. A deputy prosecutor issued a prosecutor’s subpoena directing the telephone company to produce records and information concerning the number. The subpoena commanded that the information be produced for an investigation conducted by the Little Rock Police Department.

At trial, the appellees made a very narrow suppression argument. They only argued that the Fourth Amendment was violated by an unauthorized search. They contended that the prosecuting attorney’s office abused its subpoena power by authorizing the police to seize evidence. The trial court was unquestionably correct in holding that the seizure was unlawful on that basis.

The police do not have the power to issue subpoenas. A prosecutor does have the power to issue subpoenas. Ark. Stat. Ann. §43-801 (Repl. 1977). The prosecutor’s power to subpoena, however, must be used only for a prosecutor’s investigation. Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark. App. 1980). Here, the prosecutor abused his power to subpoena when he commanded that records be produced for the police. Such a misuse of the subpoena power effectively gave the subpoena power to the police. Clearly, the information from the telephone company was unlawfully seized. That information, in turn, was used to obtain warrants for the search of two of appellees’ homes where the gambling paraphernalia were seized. The appellees successfully argued below that the evidence should be suppressed because of the unlawful seizure from the telephone company.

Neither the Supreme Court of the United States nor this court has ever held that unlawfully seized evidence is inadmissible against all persons, or in all proceedings. See, e.g., Rakas v. Illinois, 439 U.S. 128, 134 (1978); United States v. Ceccolini, 435 U.S. 268, 275 (1978); Stone v. Powell, 428 U.S. 465, 486 (1976). The reason is “each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected.” Rakas v. Illinois, 439 U.S. 128, 137 (1978).

The State argues that these appellees do not have standing to question the unlawful seizure from the telephone company, and therefore, the exclusionary rule should not be applied in this proceeding. The doctrine of standing to invoke the Fourth Amendment exclusionary rule has now evolved to focus on a defendant’s substantive Fourth Amendment rights. Id., at 140. Under this test a court should not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant’s own constitutional rights, and his rights are violated only if the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. United States v. Payner, 447 U.S. 727, 731 (1980); Rakas v. Illinois, 439 U.S. 128, 133-140, 143 (1978).

The unlawfully seized evidence should not be suppressed unless the appellees had a legitimate expectation of privacy in the evidence. The concept of a legitimate expectation of privacy is set out in Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978):

Obviously, however, a “legitimate” expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “legitimate.” His presence, in the words of Jones, 362 U.S., at 267, is “wrongful”; his expectation is not “one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S., at 361 (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. These ideas were rejected both in Jones, supra, and Katz, supra. But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment. No better demonstration of this proposition exists than the decision in Alderman v. United States, 394 U.S. 165 (1969), where the Court held that an individual’s property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations. On the other hand, even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon. See Katz, supra, at 351; Lewis v. United States, 385 U.S. 206, 210 (1966); United States v. Lee, 274 U.S. 559, 563 (1921); Hester v. United States, 265 U.S. 57, 58-59 (1924).

The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Rakas v. Illinois, 439 U.S. 128, 130-131 n.1 (1978). In the case at bar, the deputy prosecutor argued that the appellees lacked standing to challenge the search because they did not have “a justifiable, reasonable or legitimate expectation of privacy in the records of the telephone company.” The deputy prosecutor’s argument gave appellees notice that they were to put on proof concerning the issue of a legitimate expectation of privacy in the records of the telephone company. They offered no evidence whatsoever on the issue. Because of their failure to offer any proof on the issue, we must assume, for purposes of our review, that petitioners had no legitimate expectation of privacy in the telephone records. See Smith v. Maryland, 442 U.S. 735 (1979). The appellees have not shown that their own constitutional rights were violated in the unlawful seizure, and the resulting evidence should not be suppressed. Accordingly, we reverse and remand with instructions to deny the motion to suppress.

Reversed.

Purtle, J., not participating.


author: Steel Hays, Justice.

text:
    Vickie Lorene ROCK v. STATE of Arkansas
    CR 85-215
    708 S.W.2d 78
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986
    [Rehearing denied May 27, 1986.]

      Putnam & Maglothin, by: E.E. Maglothin and Jennijfer Morris Horan, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   Steel Hays, Justice.

Appellant was charged with manslaughter for the July 2, 1983 shooting of her husband. She was convicted and sentenced to ten years imprisonment and fined $10,000.

On appeal appellant’s primary argument revolves around a hypnotic session conducted prior to the trial. Appellant could not remember everything about the shooting and without consulting the court nor informing the prosecutor, her attorney hired a psychiatrist to use hypnosis to induce recollection. Before hypnosis was begun, the psychiatrist, Dr. Bettye Back, interviewed appellant for an hour. Included in that interview was appellant’s recollection of the shooting prior to hypnosis. No video or sound recording was made of the pre-hypnotic session, but Dr. Back made handwritten notes of the session.

The trial court ruled testimony of matters recalled by appellant due to hypnosis inadmissible because of its unreliability and because of the effect of hypnosis on cross-examination. Appellant was allowed to testify about things she remembered prior to being subjected to hypnosis, though testimony resulting from post-hypnotic suggestion was excluded. We believe the trial court’s ruling was correct.

I

HYPNOTICALLY REFRESHED TESTIMONY

Appellant makes two arguments relating to the court’s ruling: the hypnotically refreshed testimony should have been admitted, and in the alternative, even assuming that such testimony is inadmissible, the trial court was unduly restrictive of appellant’s testimony.

Divergence of Opinion on Admissibility

Hypnotically refreshed testimony has resulted in a divergence of opinion as to its proper treatment in the courtroom. Most courts agree there is some inherent unreliability in hypnotically refreshed testimony, but disagree as to how that affects admissibility. Some jurisdictions generally admit it, and do not view hypnotism as a matter of scientific procedure, but merely a matter of credibility to be weighed by the trier of fact. See Clark v. State, 379 So.2d 372 (Fla. Dist. Ct. App. 1979); State v. Greer, 609 S.W.2d 423 (Mo. App. 1980); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978).

A second group of cases recognizes dangers in such testimony and allows it only if certain safeguards have been followed to minimize those dangers. See State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981); State v. Beachum, 97 N.M. 682, 643 P.2d 246 (1981); State v. Long, 32 Wash. App. 732, 649 P.2d 845 (1982); State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983).

A third group of cases has found hypnotically refreshed testimony so unreliable the testimony is held inadmissible per se. See People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (1982); Collins v. Superior Court for the County of Maricopa, 132 Ariz. 180, 644 P.2d 1266 (1982);State v. Collins, 52 Md. App. 186, 447 A.2d 1272 (1982); State v. Mack, 292 N.W.2d 764 (Minn. 1980); People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255 (1983); Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983). (For a more comprehensive list of citations on the alignment of jurisdictions, see People v. Shirley, supra; Collins v. Sup. Ct., supra; State v. Collins, supra; People v. Guerra, 37 Cal.3d 385, 208 Cal. Rptr. 162, 690 P.2d 635 (1984).)

Current Trend Toward Exclusion

While it was said in State v. Hurd, supra, that a majority of courts have held hypnotically induced testimony admissible, the cases cited for that conclusion are from the previous decade. (Hurd, at p. 91). The more recent trend is toward exclusion of such testimony. McCormick on Evidence § 206 (1984 3d ed.); People v. Shirley, supra; State v. Atwood, 39 Conn. Sup. 273, 479 A.2d 258 (1984). Collins v. Sup. Ct., supra. Typical of this trend is Maryland, which in 1968 permitted the testimony, treating the issue as one of weight rather than admissibility. Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1968). Harding was the leading opinion on this point, yet in 1982 Maryland reversed its position and held that a witness who has been hypnotized may not testify to induced recollections. Polk v. State, 48 Md. App. 382, 427 A.2d 1041 (1981); State v. Collins, supra. McCormick notes that even in those jurisdictions that previously held post-hypnotic testimony generally admissible, there is a trend toward insisting that rigorous safeguards be observed before the hypnotically refreshed memories are admissible, and “[t]he more prevalent view is that testimony about the posthypnotic memories is not admissible.” McCormick, supra at 623.

Courts adopting a rule of exclusion often rely on the test announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that an expert witness-“may not testify on the basis of scientific methodology unless the principles on which he relies have achieved general acceptance within the scientific community.” Some critics contend that Frye is too strict and will exclude helpful and probative evidence. McCormick, supra § 203; Latin and White, Remote Sensory Evidence and Environmental Law, 64 Cal. L. Rev. 1300 (1976). We do not have to resolve that issue in this case, as we would find the hypnotically refreshed testimony inadmissible by either the Frye test, or some form of it, or by traditional evidentiary concepts. Unif. R. Evid. 403. To this same effect see McCormick, supra at 633.

Expert Opinion

While hypnosis may have gained recognition as an aid to therapy, it has not gained general acceptance as a means of ascertaining truth in the field of forensic law. Cases comprising the recent trend toward exclusion of hypnotically refreshed testimony have examined extensively the expert opinions in this field and have concluded that it is inherently unreliable and without sufficient acceptance to allow it in the courtroom. See, People v. Shirley, supra; Collins v. Sup. Ct., supra; Commonwealth v. Kater, supra; State v. Collins, supra; People v. Quintanar, 659 P.2d 710 (Colo. App. 1982); People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982); People v. Hughes, supra; State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984); Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Peterson v. State, 448 N.E.2d 673 (Ind. 1983); Robinson v. State, 677 P.2d 1980 (Okla. Cr. App. 1984); State v. Mack, supra; State v. Atwood, 3 Conn. Sup. 273, 479 A.2d 258 (1984).

Dr. Bernard L. Diamond, Professor of Clinical Psychiatry, University of California at Berkeley, in his article, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Cal. Law Review 313 (1980), states:

I believe that once a potential witness has been hypnotized for the purpose of enhancing memory his recollections have been so contaminated that he is rendered effectively incompetent to testify. Hypnotized persons, being extremely suggestible, graft onto their memories fantasies or suggestions deliberately or unwittingly communicated by the hypnotist. After hypnosis the subject cannot differentiate between a true recollection and a fantasy or a suggested detail. Neither can any expert or the trier of fact. This risk is so great, in my view, that the use of hypnosis by police on a potential witness is tantamount to the destruction or fabrication of evidence. Recently, some courts have shown a healthy suspicion of the veracity of this sort of testimony. Yet even under stringent safeguards, including presentation to the trier of fact of the fullest possible information on the effects of hypnosis, the trier will not be able to sort out reality from witness fantasy and weigh this testimony properly.

People v. Shirley, supra, one of the leading cases for the rejection of hypnotically refreshed testimony, was recently reviewed in People v. Guerra, supra. The appellant in Guerra challenged the findings of Shirley as not being in step with recent developments in hypnosis in the scientific community. The California Supreme Court reviewed the studies and authorities since Shirley and found the experts even more cautious on the use of hypnosis in the courtroom. One of the more significant studies cited in Guerra is that of Dr. Martin T. Orne (Orne, et al., Hypnotically Induced Testimony, In Eyewitness Testimony: Psychological Perspectives, Wells & Loftus, edits. 1984). Orne is widely cited on this issue, and it was his guidelines for the use of hypnotic testimony that were adopted by the New Jersey court in Hurd v. State, supra. Guerra points out Orne’s current position;

After discussing Shirley and the decisions that preceded and followed it, the authors agree that “The present state of scientific knowledge is consistent with the rules of a number of state supreme courts that memories retrieved through hypnosis are sufficiently unreliable that their use is precluded as eyewitness testimony in criminal trials. . .
There is no way, however, by which anyone (including an expert with extensive experience in hypnosis) can for any particular piece of information obtained in hypnosis determine whether it is an actual memory or a confabulation. For these reasons, hypnotically induced testimony is not reliable and ought not be permitted to form the basis of testimony in court.”

The dangers of hypnosis in memory retrieval are summed up in the Guerra opinion: the subject’s capacity to judge the reality of his memories is impaired; he is apt to recall “memories” that never existed, yet be convinced those memories are real; he will produce on demand a recollection of an event which may be a compound of actual facts, irrelevant matter and highly plausible “confabulations”; hypnosis artificially increases the subject’s confidence in both his true and his false memories and may enhance his credibility as a witness due to an attendant ability to increase dramatically the amount of detail, or the emotion with which those details are reported, though they may be simply “artifacts of the hypnotic process.” Too, there is the likelihood that juries will place greater emphasis on testimony produced by hypnosis. See Collins v. Sup. Ct., supra.

Courts rejecting hypnotically refreshed testimony have been equally concerned with the effects on cross-examination, where the difficulties in memory retrieval and fabrication are compounded. The conviction on the part of the subject that he or she is stating the truth affects the truth finding process traditionally tested by cross-examination.

The concern in the area of post-hypnotic testimony is that post-hypnotic memory may be different than pre-hypnotic memory. This memory alteration may result from purposeful or unwitting cues given by the hypnotist, the phenomenon of confabulation, and the need for the subject to achieve some sense of certainty within his or her own mind. The basic problem is that if a witness sincerely believes that what he or she is relating is the truth they become resistant to cross-examination and immune to effective impeachment to ascertain the truth. Collins v. Sup. Ct., supra.

Much more could be said on the subject of hypnotically induced recollection, but we are satisfied from the more recent cases and the views of experts, that the dangers of admitting this kind of testimony outweigh whatever probative value it may have.

Conditional Admissibility — the Hurd Guidelines

Appellant urges that if we do not allow hypnotically refreshed testimony unconditionally, we should adopt the guidelines of State v. Hurd, supra. We note that appellant has not fully complied with those guidelines, but we are not inclined to follow Hurd in any case. The cases which have rejected Hurd have noted that some of the dangers of hypnotically induced testimony are not eliminated by the Hurd guidelines and others are not even addressed. See People v. Shirley, supra, Collins v. Sup. Ct., supra.

Of equal importance, to adopt the guidelines would further burden the pretrial process with no off-setting benefit: the guidelines require that the opposing party be notified of the intent to use hypnosis and be furnished a recording of any sessions; only a psychologist or psychiatrist experienced in hypnosis, and independent of either the state or the defense, may be used; all sessions must be recorded and the trial court in a pretrial or chambers hearing must decide a number of issues determinative of whether the induced testimony should be received, such as the presence of cues or suggestions by the hypnotist. The burden of proof is by clear and convincing evidence.

In light of the questionable probative value of such proof and the risks inherent in the means by which it is retrieved, we think it would be a serious mistake to further encumber the pretrial process with the steps outlined in Hurd. We agree with the comment in People v. Shirley, supra:

On the other hand, it takes little prescience to foresee that these and related issues would provide a fertile new field for litigation. There would first be elaborate demands for discovery, parades of expert witnesses, and special pretrial hearings, all with concomitant delays and expense. Among the questions our trial courts would then be expected to answer are scientific issues so subtle as to confound the experts. Their resolution would in turn generate a panoply of new claims that could be raised on appeal, including difficult questions of compliance with the “clear and convincing” standard of proof. And because the hypnotized subject would frequently be the victim, the eyewitness, or a similar source of crucial testimony against the defendant, any errors in ruling on the admissibility of such testimony could easily jeopardize otherwise unimpeachable judgments of conviction. In our opinion, the game is not worth the candle.

Appellant’s Testimony Restricted

We turn to appellant’s argument that the trial court’s limitations on her testimony were too restrictive. Courts that decline to permit hypnotically refreshed testimony are often faced with the difficulty of dealing with a witness who has already undergone hypnosis. The concern focuses on determining what the witness could remember prior to hypnosis and insuring that the opposing party not be deprived of the opportunity for effective cross-examination because of the influence of hypnosis. Collins v. Sup. Ct., supra.

The likelihood of contamination was deemed so pronounced in People v. Shirley, supra, that the court ruled a previously hypnotized witness was wholly incompetent to testify on matters dealt with while under hypnosis. However, the general response has been to permit the testimony of those recollections held prior to hypnosis, and on topics unrelated to those covered by hypnosis. To ascertain just what those memories are and to render that testimony admissible, the courts require verification by way of a detailed record by the hypnotist of the pre-hypnotic session. A preferred method is video or sound recording, Collins v. Sup. Ct., supra, and some courts have suggested the Hurd guidelines be followed when pertinent to a particular case, People v. Hughes, supra; Collins v. Sup. Ct., supra. The Hurd guidelines, or something similar, are proposed as there is still a danger that the hypnosis could be so suggestive as to affect the pre-hypnotic memory as well. Once it has been shown by clear and convincing evidence that testimony of pre-hypnotic recollections is reliable, a subject may testify, but only to those memories demonstrably shown to be a product of the memory prior to hypnosis. The burden of proving the reliability is on the proponent of the testimony. Commonwealth v. Kater, supra, People v. Shirley, supra, Collins v. Sup. Ct., supra, People v. Hughes, supra, State v. Atwood, supra.

The trial court in this case chose the course of excluding testimony induced by hypnosis and admitting testimony of the appellant based on pre-hypnotic recollection. The difficulty was determining what that recollection was, based only on a record from the pre-hypnotic session with Dr. Back, a record admittedly incomplete. In this situation the trial court limited the appellant to what she could recall without the benefit of hypnosis, as evidenced by Dr. Back’s notes and enlarged by Dr. Back’s memory of her discussions with appellant before she was placed in a hypnotic state.

Appellant argues the court misapplied the rule employed by courts where hypnotically induced testimony is inadmissible and was too restrictive. Appellant, however, never demonstrated how the rule was violated. The rule simply limits the hypnotized subject’s testimony to those matters demonstrably recalled prior to testimony. Any other testimony on the topic runs all the risks discussed earlier in hypnotically refreshed memories. Here, the court was in a difficult position as the defense supplied only partial notes of the pre-hypnotic session. Nevertheless, the appellant was allowed to testify to those items referred to in the notes and given considerable latitude in explaining them in her own words. The trial court also allowed testimony on matters Dr. Back had previously testified were covered in the pre-hypnotic session. The burden was on appellant to establish a reliable record of the testimony. She cannot now claim error because the court restricted her to the record she offered.

Dr. Back testified that during the hypnotic session she took appellant back to her childhood and brought her forward to the shooting incident. Under these circumstances, in order to avoid testimony on topics covered in the sessions that were not previously preserved, the trial court could have limited appellant entirely to the notes and testimony of Dr. Back. However, to give appellant as much latitude as possible, the trial court applied that order only to the day of the shooting. Appellant complains that ruling was too restrictive and should have been limited to the explanation of the shooting incident itself. We find no support for this argument. Appellant does not deny that other events of the day were covered in the sessions, nor that they were relevant, but maintains the primary purpose of the session was to find out how the gun went off. While this may be so, the record reveals that the time covered in the sessions included the day of the shooting and, if anything, the ruling was generous. As noted in our discussion of appellant’s next point, the most significant events of that day were included in Dr. Back’s notes and appellant was able to testify to those matters.

Appellant suggests the better method of determining her pre-hypnotic memory would be her own recollection, and not the notes of Dr. Back. Appellant cites no authority and we think it would be circumventing the very reasons for excluding hypnotically refreshed memory to permit the witness to decide what was remembered naturally and what was induced by hypnosis. A similar suggestion was made in Shirley, to which the court responded:

[I]t is the consensus of informed scientific opinion today that in no case can a person previously hypnotized to improve his recollection reliably determine whether any unverified item of his testimony originates in his own memory or is instead a confusion or confabulation induced by the hypnotic experience. It would fly in the face of that consensus to allow a witness to be the judge of which portions of his testimony were actually produced by hypnosis.

II

CONSTITUTIONAL RIGHT TO TESTIFY

Appellant maintains the exclusion rule of hypnotically refreshed testimony should not be applied to defendants because it violates their constitutional right to testify in their own behalf. Of course, a defendant’s right to testify is fundamental, but even that right is not without limits. A defendant with language difficulties, for example, may not eschew diligence and wait until the morning of trial to seek the assistance of an interpreter. Figeroa v. State, 244 Ark. 457, 425 S.W.2d 516 (1968). Even defendants are subject to the rules of procedure and evidence, such as hearsay, or other instances of evidentiary exclusion, e.g. evidence that is prejudicial, confusing, misleading, cumulative or time consuming.

In Greenfield v. Robinson, 413 F. Supp. 1113 (1976), the same argument was made by a defendant who had no recollection of the crime, a murder. He argued that hypnotic testimony was the only evidence he could offer in his defense, that it would be a violation of his constitutional rights to deny him the right to testify, citing Chambers v. Mississippi, 410 U.S. 284 (1973).

The cases are easily distinguishable, as the Greenfield court found. Chambers primarily found a hearsay exception for evidence offered by the defense because of reliability. The Greenfield court pointed out it was excluding the hypnotically induced testimony for the very reason that it was unreliable, after reviewing expert opinion on the issue. The court went on to say:

This court knows of no rule that requires a judge to accept evidence of uncertain value to go to a defense that is otherwise completely uncorroborated. The mere fact that a crime has no eyewitnesses or direct evidence does not warrant a court to accept evidence that may be able to tell the trier of fact something about the crime, but may be of dubious quality. As a constitutional principle then this court simply finds that petitioner’s due process guarantees were not abrogated by the trial court’s refusal to permit the defendant to relate his story under hypnosis. Greenfield at 1120-21.

In State v. Atwood, supra, a defendant charged with the murder of his wife had no recollection of the event and made the identical argument. The Atwood court had not previously considered the hypnosis problem and made a finding on that issue first, aligning itself with those jurisdictions which exclude hypnotically refreshed testimony. The court then dealt with appellant’s constitutional right to testify in his behalf. Citing Greenfield, supra, the Atwood court decided it was not required to accept such testimony, even if it was all the defendant had, noting it was not required to “accept evidence of uncertain value that is otherwise completely uncorroborated.” The court held the defendant’s constitutional rights were not violated.

We think the same reasoning applies here. Appellant’s testimony was restricted only by what, in effect, are standard rules of evidence. The probative value of the proffered testimony is questionable, as we have seen, but in any case, it is substantially outweighed by the other considerations discussed. We note that appellant was in a far better position than either defendant in Atwood or Greenfield who had no testimony to offer other than hypnosis, in that she was allowed to relate the substance of her version of the shooting to the jury, which she had remembered prior to hypnosis. Appellant’s defense was that the shooting was an accident and this she was able to adequately relay to the jury. She testified that she and her husband were quarreling, that he pushed her against the wall, that she wanted to leave because she was frightened, and her husband wouldn’t let her go. She said her husband’s behavior that night was unusual, and the shooting was an accident, that she didn’t mean to do it and that she would not intentionally hurt her husband.

In reality nothing was excluded that would have been of much assistance to appellant, or would have enlarged on her testimony to any significant degree. Yet given the available information on the effect of hypnosis and the attendant difficulties of such testimony, the state’s desire to confine appellant’s testimony to the pre-hypnotic memories is warranted. The trial court was faced with a difficult situation at best when presented with a witness who had been hypnotized and the damage done before any ruling could be made. We think the trial court took the proper course in its ruling and any prejudice or deprivation caused to appellant in this case was minimal and resulted from her own actions and not by any erroneous ruling of the court. We can find no violation of her constitutional rights.

Ill

APPELLANT’S OUT-OF-COURT STATEMENT

Appellant alleges error in the trial court’s exclusion of a statement in a police officer’s report, attributed to the appellant, that she “had the gun in her hand and it went off.” The statement was excluded as hearsay. Appellant relies on Unif. R. Evid. 801(d):

Statements which are not hearsay. A statement is not hearsay if: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. . .

Rule 801 does not sustain the argument, as the proffered statement does not come within the exception. For the rule to apply, the prior consistent statement must be made before a motive to falsify has arisen:

[I]f the attacker has charged bias, interest, corrupt influence, contrivance to falsify, or want of capacity to observe or remember, the applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated. McCormick on Evidence, § 49 (1984).

The same principle has been explained in other words:

Some decisions also mention that the consistent statement should have been made before the witness would foresee its effect upon the fact issue. Id., n. 24.

In Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977), the defendant made the same argument. Brown testified that he was in Memphis at the time of the robbery. A witness was called to testify that Brown telephoned her that evening and said he was in Memphis. The statement was excluded as hearsay, Rule 801 having no application to the case, because “Brown, if guilty, had the same motive for fabrication when he made the alleged telephone call as he had when he testified in the case.” We further stated in Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980), the statements were not admissible “because the motive for fabrication was as great when the first statement was made as when the testimony was given.”

Similarly, appellant’s motive in describing the shooting as an accident at the time of arrest was the same as it would be when giving that testimony at trial. The court was correct in excluding the testimony as hearsay.

IV

INTRODUCTION OF HASHISH REFUSED

The final point of error concerns a small amount of hashish found in Frank Rock’s shirt pocket following the shooting. There is no proof that he had used it, nor what the effects might be if he had, but appellant insists she should have been permitted to offer this proof as having relevance to the alleged violent behavior by Rock. The premise is too conjectural on this record and whether its relevance warranted acceptance was within the trial court’s discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1986).

Affirmed.

Purtle, J., not participating.

       These safeguards are well outlined by the New Jersey Supreme Court: Whenever a party in a criminal trial seeks to introduce a witness who has undergone hypnosis to refresh his memory, the party must inform his opponent of his intention and provide him with the recording of the session and other pertinent material. The trial court will then rule on the admissibility of the testimony either at a pretrial hearing or at a hearing out of the jury’s presence. In reviewing the admissibility of hypnotically refreshed testimony, the trial court should evaluate both the kind of memory loss that hypnosis was used to restore and the specific technique employed based on expert testimony presented by the parties. The object of this review is not to determine whether the proffered testimony is accurate, but instead whether the use of hypnosis and the procedure followed in the particular case was a reasonably reliable means of restoring the witness’ memory.
      The first question a court must consider is the appropriateness of using hypnosis for the kind of memory loss encountered. The reason for a subject’s lack of memory is an important factor in evaluating the reliability of hypnosis in restoring recall. According to defendant’s expert, Dr. Orne, hypnosis often is reasonably reliable in reviving normal recall where there is a pathological reason, such as a traumatic neurosis, for the witness’ inability to remember. Orne, supra, at 325. On the other hand, the likelihood of obtaining reasonably accurate recall diminishes if hypnosis is used simply to refresh a witness’ memory or concerning details where there may be no recollection at all or to “verify” one of several conflicting accounts given by a witness. Id. at 324, 332. A related factor to be considered is whether the witness has any discernible motivation for not remembering or for “recalling” a particular version of the events. In either case, the possibility of creating self^erving fantasy is significant. . . .
      Once it is determined that a case is of a kind likely to yield normal recall if hypnosis is properly administered, then it is necessary to determine whether the procedures followed were reasonably reliable. Of particular importance are the manner of questioning and the presence of cues or suggestions during the trance and the post-hypnotic period. . . . [citing Orne and others] An additional factor affecting the reliability of the procedure is the amenability of the subject to hypnosis. . . .
      To provide an adequate record for evaluating the reliability of the hypnotic procedure, and to ensure a minimum level of reliability, we also adopt several procedural requirements based on those suggested by Dr. Orne and prescribed by the trial court. . . . Before it may introduce hypnotically refreshed testimony, a party must demonstrate compliance with these requirements.

        First, a psychiatrist or psychologist experienced in the use of hypnosis must conduct the session. . . .
      Second, the professional conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, investigator or defense.
      Third, any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in writing or in other suitable form. . . .
      Fourth, before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them. . . .
      Fifth, all contacts between the hypnotist and the subject must be recorded. This will establish a record of the preinduction interview, the hypnotic session, and the posthypnotic period, enabling a court to determine what information or suggestions the witness may have received. . . .
      Sixth, only the hypnotist and the subject should be present during any phase of the hypnotic session, including the prehypnotic testing and the post-hypnotic interview. . . . State v. Hurd, supra.

       In deciding to discard the Hurd approach, the Shirley court noted initially that it was not persuaded that the requirements adopted in Hurd and other cases would eliminate each of the dangers at which they were directed.
      For example, one of the requirements set forth in Hurd is that all contacts between the hypnotist and the subject must be recorded for the stated purpose of enabling the trial court to determine what “cues” the hypnotist may have conveyed to the subject by word or deed; and the opinion strongly encouraged the use of videotape to make such recordings. Yet as the same opinion recognizes elsewhere, “Because of the unpredictability of what will influence a subject, it is difficult even for an expert examining a videotape of a hypnotic session to identify possible cues.” If even an expert cannot confidently make that identification, it is vain to believe that a layman such as a trial judge can do so. 181 Cal. Rptr. at 255. f.n. 24
      The court points out that certain dangers of hypnosis are not even addressed by the Hurd requirements recognized elsewhere in that opinion, such as the subject losing his critical judgment and crediting memories that were formerly viewed as unreliable, confusing actual recall with confabulation and the unwarranted confidence in the validity of his ensuing recollection.


author: David Newbern, Justice.

text:
    Margaret McENTIRE and J. A. McENTIRE, III v. Mark MALLOY
    85-313
    707 S.W.2d 773
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986

      W. Edward Tarvin, for appellants.

      Macom, Moorhead, Green & Henry, by: J. W. Green, Jr., for appellee.
   David Newbern, Justice.

The question presented in this appeal is whether the statute of limitations began to run when the battery was allegedly committed or when the extent of resulting injuries was discovered. We hold it began to run when the tort was allegedly committed, and thus the judge was correct in dismissing the action.

Margaret McEntire had silicone implants placed in her breasts in 1978. She was, at that time, married to the appellee. Her complaint alleged that in 1982 she was severely beaten by the appellee, and the battery caused an implant to burst, leak, and result in serious permanent injury, although it was unbeknownst to her until later. Margaret thereafter was divorced from the appellee and married J. A. McEntire, III. She alleged she discovered the extent of her injury from the 1982 battery through surgery performed August 27, 1984. The appellants’ complaint seeking damages for personal injury for Margaret and for loss of consortium for J. A. McEntire, III, was filed on February 4,1985. The action was dismissed because Ark. Stat. Ann. § 37-201 (Supp. 1985) requires that an action for battery be brought within one year after the cause of action accrues.

1. The Appellants’ Argument

The appellants contend the statutory one-year period did not begin to run until the extent of the injury from the battery became known. In support of this proposition they cite the four cases we now discuss.

Urie v. Thompson, 337 U.S. 163 (1949), is cited as perhaps being the first case to use the time-of-discovery rule to determine when a cause of action accrues for purposes of applying a statute of limitations. There a worker’s cause of action was held to have accrued when the fact of his injury, i.e., the contraction of silicosis, became known to him.

In Raymond v. Eli Lilly & Co., 371 A.2d 170 (N.H. 1977), the plaintiff alleged that use of an oral contraceptive manufactured by Lilly had caused optical hemorrhages which resulted in her becoming legally blind. She did not learn the cause of the hemorrhages until more than six years (the limitations period) had passed. In an opinion answering a question of New Hampshire law certified by the United States Court of Appeals for the First Circuit, Chief Justice Kenison reviewed many products liability cases with respect to statutes of limitations and the time-of-discovery rule. His concise statement was:

We believe that the proper formulation of the rule and the one that will cause the least confusion is the one adopted by the majority of the courts: A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.

In US. v. Kubrick, 444 U.S. 111 (1979), a Federal Tort Claims Act case, the claimant alleged that neomycin had been negligently prescribed as a remedy for his infected leg and had caused him to lose his hearing. The Supreme Court held the cause of action accrued when the claimant learned not just of his injury and its cause, but when he further was given reason to suspect or learned from another doctor that the prescribing doctor had been negligent. The Federal Tort Claims Act limitation provision thus may be tolled for a period even longer than Chief Justice Kenison’s opinion provided with respect to a New Hampshire statute of limitations.

None of these cases deals with the situation with which we are confronted. Here the appellant, Margaret McEntire, knew she had been battered. Her complaint described the attack as “willful, intentional and barbarous.” She obviously knew by whom she had been struck and that she was injured. Her only alleged lack of knowledge was as to the extent of her injuries.

The appellants’ final citation is Everhart v. Rich’s, Inc., 229 Ga. 798, 194 S.E.2d 425 (1972). In that case the plaintiffs had purchased fiberglass draperies which disintegrated over a long period placing fiberglass particles in their home environment and causing illness. The Georgia Supreme Court held that, where the alleged wrong is breach of a duty to warn of a hazardous product, the cause of action does not accrue until an injury is ascertainable. The opinion points out that in such a case the tort will be regarded as continuing until eliminated, for example, by warning of the hazard. The appellants in the case now before us ask us to hold that the continuing leakage of the breast implant after the alleged battery is analogous to the disintegration of the draperies. We decline to do so. The continuing tort theory in Everhart v. Rich’s, Inc., supra, was used to support tolling the statute of limitations until injury, as opposed to its extent, was ascertained. The Georgia court’s opinion distinguishes facts similar to those before us:

On a tort claim for personal injury the statute of limitation generally begins to run at the time damage caused by a tortious act occurs, at which time the tort is complete. In such cases the true rule in this State was expressly recognized to the effect that in an action for personal injuries the statute of limitation commences at the time the damage or injury is actually sustained. In such torts, where the injury is occasioned by violent external means, the result of the previous violation of a duty, no problem arises in fixing the date and time when the statute begins to run.

2. The Arkansas Cases

In Field v. Gazette, 187 Ark. 253, 59 S.W.2d 19 (1933), a linotype operator alleged his employer had negligently failed to provide a safe workplace resulting in his contracting lead poisoning. Within three years (the limitations period) of going to work for the defendant, the plaintiff knew he had the malady because he had some sores on his feet resulting in amputation of a toe and ultimately a foot. The disease progressed, resulting in even more extensive leg amputations, more than three years after he became aware of having the disease. We held the statute of limitations began to run when the injuries were sustained “ ‘although their results may not be then fully developed,’ ” quoting 130 R.C.L. § 30, p. 765 (1917).

In Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 839 (1943), the plaintiff alleged in 1941 that as a result of a 1935 automobile accident he had lost his hearing in one ear. He contended he did not learn of this injury until after the applicable three-year statute of limitations had run. Citing and quoting § 899 c. of the Restatement of Torts, we held the statute began to run when the accident occurred because a battery or negligently inflicted personal injury “ \ . . is complete upon physical contact even though there is no observable damage at the time of contact.’ ” 205 Ark. at 335, 168 S.W.2d at 840. We distinguished two nuisances cases, C., R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S.W. 127 (1913), and Brown v. Arkansas Central Power Co., 174 Ark. 177, 294 S.W. 709 (1927), saying that when a landowner uses his land in a way that is not unlawful but which later results in injury to another, the causes of action accrue when the injury is perceived or could reasonably be ascertained by the plaintiff. We also distinguished the medical malpractice case in which a foreign object is left in the surgical patient’s body, pointing out that a physician has a duty to disclose such misconduct and each day it continues constitutes a “fraudulent concealment.” The latter situation is now governed by a statutory limitations exception. Ark. Stat. Ann. § 34-2616 (Supp. 1985).

3. Conclusion

The comment in Restatement of Torts, Second, § 899 c. (1965), says as a general rule a statute of limitations does not begin to run until the tort is complete, and that a “battery is complete upon physical contact, even though there is no observable damage at the point of contact.” When the battery in this case allegedly occurred, Margaret McEntire knew the tort had occurred, knew who the perpetrator was, knew she was injured, at least to some extent, and she knew of the causal relationship between the battery and her injury. If we were to hold that a prospective battery plaintiff could wait until the complete extent of her injuries was known, it would seriously interfere with one policy reason for having a statute of limitations. The purpose of a statute of limitations is to encourage the prompt filing of claims by allowing no more than a reasonable time within which to make a claim so a defendant is protected from having to defend an action in which the truth-finding process would be impaired by the passage of time. Zeleznick v. U.S., 770 F.2d 20 (3rd Cir. 1985), citing U.S. v. Kubrick, supra. The possible effects of any injury may be as limitless as the ripples in a lake into which a stone has been cast. Lines have to be drawn. Once a prospective plaintiff knows she has been injured by a wrongdoer her cause of action has accrued. She is in a position to investigate the extent of the injury and to present evidence of its present and probable future extent. If the cause of action is for battery, it must be brought within the one-year statutory period.

Affirmed.

Purtle, J., not participating.


author: Robert Branch, Special Justice.

text:
    ROBERTS-McNUTT, INC. v. Michael J. WILLIAMS
    85-177
    708 S.W.2d 87
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986
    [Rehearing denied May 27, 1986.]

      Friday, Eldredge & Clark, by: William M. Griffin, III, for appellant.

      Laws & Swain, P.A., by: Timothy W. Murdoch, for appellee.

       Purtle, J., not participating.

   Robert Branch, Special Justice.

We granted review of this case because the Court of Appeals was evenly divided on the main issue, Roberts-McNutt, Inc. v. Williams, 15 Ark. App. 240, 691 S.W.2d 887 (1985), and because it involves a matter of significant public interest.

Michael J. Williams was granted workers’ compensation even though he falsely represented on his employment application that he had no previous injury. The pertinent facts are that Williams suffered a back injury on November 3, 1982, while employed by Western Waterproofing in Oklahoma. On January 17, 1983, he underwent back surgery and on April 4,1983, was released at his request with a rating of 20 percent disability to the body as a whole.

On April 18, 1983, Williams applied for employment with the Appellant. On April 21, 1983, Williams filed a joint petition to settle his workers’ compensation claim in Oklahoma and he was paid $18,000.00 as compensation for that injury. On May 2 or May 3,1983, Williams began work for the Appellant and one day later he slipped and fell and sustained an injury which gives rise to this claim. On his employment application with the Appellant, he omitted any reference to his injury or compensation. Williams concedes these facts but claims that the president of the Appellant company told him to omit any reference to the injury because it would make his insurance go up.

This case involves only an issue of witness credibility. Williams testified he called Raymond Roberts, the president of the Appellant company, and told him of the injury he had sustained while working for Western Waterproofing in Oklahoma and of his back surgery and that he was invited by Roberts to come in and make an application for employment. Freddy Carl Scott testified that he was present when Williams called Roberts and told Roberts that he was waiting to be cleared by his doctor before he could come to Arkansas for employment.

Williams testified that when he filled out his application for work in Roberts’ presence, Roberts asked him how he felt and decided his pay would be less than the full pay scale because of Williams’ back condition. Williams testified that while filling out his employment application, he asked if he should include information about his back condition and Roberts replied he should not because it would make his “insurance go up”. Scott testified Roberts told Williams not to mention the back condition in the employment application for insurance reasons.

Roberts denied Williams had told him of his back condition and denied telling Williams to falsify his employment application. Roberts testified his company was self-insured through a self-insuring fund and he only paid Williams $10.00 per hour because Williams was trying to take a shortcut to employment as a journeyman. The administrative law judge ruled in favor of the Claimant Williams. The Arkansas Workers’ Compensation Commission affirmed.

We find there is substantial evidence to support the decision of the Workers’ Compensation Commission.

Roberts testified he knew Williams and knew of his work with Western Waterproofing in Little Rock prior to going to Oklahoma. He contended, however, that Williams lied on his job application about his education level and he did not disclose his employment with Western Waterproofing in Oklahoma.

Williams stated on his application that he worked for Western Waterproofing in Little Rock from 1978 until June 1, 1982. The application was dated April 18,1983. The application did not disclose any employment information for the period from June 1, 1982 to April 18, 1983. The Appellant asked the Administrative Law Judge and the Commission to believe that Roberts accepted this job application without knowing of the prior injury, without knowing of Williams’ employment with Western Waterproofing in Oklahoma, and without questioning where Williams had been and what he had been doing for the preceding ten months and 18 days.

The issue is whether Williams and Scott were telling the truth or Roberts was telling the truth. The Commission chose to believe Williams and Scott. We defer to the decision of the Workers’ Compensation Commission on questions of witness credibility. May v. Crompton-Arkansas Mills Inc. & Liberty Mutual Insurance Co., 253 Ark. 1080, 490 S.W.2d 794 (1973); Warwick Electronics Inc. v. Devazier, 253 Ark. 1100, 490 S.W.2d 792 (1973); Dacus Casket Co. v. Hardy, 250 Ark. 886, 467 S.W.2d 713 (1971); Nationwide Warehouse Market v. Whisenant, 249 Ark. 604, 460 S.W.2d 90 (1970); Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172 (1962).

Affirmed.

Purtle, J., not participating.

Holt, C.J., George Rose Smith, J., and Hays, J., would reverse for the reasons given by Judge Corbin in the Court of Appeals.


author: Per Curiam.

text:
    Clarence GAY v. STATE of Arkansas
    707 S.W.2d 320
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

In October, 1984, Clarence Gay was convicted of rape and sentenced to life imprisonment. He filed a timely pro se notice of appeal and the record was prepared for filing with this Court, but it was never lodged here. He now seeks a belated appeal, alleging that he was incompetent to proceed with the appeal pro se because of low intelligence and lack of education. Petitioner’s appointed attorney at trial was Joe Villines. In his affidavit in response to the motion, Mr. Villines, who has not been relieved as counsel by either the trial court or this Court, states that he discussed the possibility of an appeal with petitioner after trial and informed him that there was no basis for reversal of the conviction. He avers that he did not know that petitioner had filed a notice of appeal.

Criminal Procedure Rule 36.26 states that counsel, whether retained or appointed, shall continue to represent a convicted person throughout appeal unless permitted to withdraw by the trial court or this Court. A convicted defendant may waive his appeal right by failure to communicate to counsel his desire to appeal. Conley v. State, 286 Ark. 388, 691 S.W.2d 868 (1985); Henderson v. State, 278 Ark. 107, 643 S.W.2d 107 (1982). The timely notice of appeal filed by petitioner is proof that he desired an appeal. Even if he did not specifically notify counsel that he had filed the notice, counsel had not been relieved as petitioner’s attorney-of-record and was responsible for knowing what had been filed in regard to the case within the time set for filing a notice of appeal. Moreover, if counsel felt that the appeal had no merit, he was obligated to either obtain permission from the trial court to withdraw before the notice of appeal was filed, Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979), or file a motion to withdraw in this Court after the notice of appeal was filed. Rules of the Supreme Court, Rule 11(h), Ark. Stat. Ann. Vol. 3A (Supp. 1985).

The failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal constitutes a denial of effective assistance of counsel and is good cause for granting a belated appeal. Blakely v. State, 279 Ark. 141, 649 S.W.2d 187 (1983);Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). As counsel for petitioner did not withdraw from the case in accordance with the rules of procedure and failed to comply with the obligations set forth by the rules and opinions of this Court, the belated appeal is granted. Counsel Villines is responsible for lodging the record with this Court within thirty days.

Motion granted.

Purtle, J., not participating.


text:
    Billy Gale HENRY v. STATE of Arkansas
    CR 82-52
    708 S.W.2d 88
    Supreme Court of Arkansas
    Opinion delivered April 21, 1986

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Billy Gale Henry was found guilty by a jury of being an accomplice to capital murder and was sentenced to death. He was also found guilty of the offense of hindering apprehension or prosecution of another person and sentenced as a habitual offender to an additional term of 40 years imprisonment in the Arkansas Department of Correction. We affirmed both convictions but reduced the sentence for capital murder to life without parole. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Ark. R. Crim. P. Rule 37.

Petitioner was committed in 1981. His petition for postconviction relief is therefore untimely under Rule 37.2(c) since it was not filed within three years of the date of commitment, unless he has stated some ground for relief which would render the judgment of conviction absolutely void. Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 452 U.S. 973 (1981). He raises two related issues, incompetence to stand trial and lack of jurisdiction by virtue of his competence, which he asserts would void the judgment in his case and argues that the court should have ordered sua sponte a hearing on his competence. As he fails totally to establish that he was incompetent, the petition is dismissed for failure to state a ground sufficient to void the convictions.

It is clear that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist counsel in preparing his defense may not be subjected to a trial. Drope v. Missouri, 420 U.S. 162 (1975). If the convicted defendant did not raise the issue of his competence at trial, he may nevertheless assert his incompetence to stand trial in a petition for postconviction relief since a person who is incompetent cannot knowingly and intelligently waive his right to have the court determine his capacity to stand trial. See Pate v. Robinson, 383 U.S. 375 (1966). The petitioner who asserts his incompetence for the first time in a petition for postconviction relief, however, has the heavy burden of demonstrating with facts that he was not competent at the time of trial. The mere fact that he can document a history of mental health problems or show that counsel could have framed a defense of incompetence, but chose not to do so, does not in itself entitle a petitioner to a new trial under our postconviction rule. Glick v. State, 286 Ark. 133, 689 S.W.2d 559 (1985); Dudley v. State, 285 Ark. 160, 685 S.W.2d 170 (1985).

Petitioner contends that he has a long history of irrational behavior, delusions and psychotic behavior dating back to his service in World War II. He states that he was on a psychiatric ward during the service and later was incarcerated in psychiatric facilities while in state prisons. He says that he discussed a stay in Ft. Roots, a mental health facility, with a Veterans Administration psychiatrist on the day of the crime. A report by another VA psychiatrist made after the crime recommended a thirty-day commitment to the Arkansas State Hospital for evaluation. (The VA doctor noted in his report that psychosis was doubtful.)

None of this history was brought to the attention of the trial court on the issue of petitioner’s competence to stand trial. He did ask that the VA doctor’s recommendation of an evaluation be included in the record and further requested a mental examination before sentencing, but he never argued that he was incompetent to stand trial. To the contrary, petitioner sought and was granted leave to proceed as co-counsel. The record contains many instances where petitioner took an active part in his trial in a manner which strongly indicates that he was rational and capable of understanding the proceedings and assisting in his defense. In light of petitioner’s extensive role at trial and his failure to provide any even slightly convincing evidence that he was incompetent, his allegation that the trial court should have ordered a hearing on his competence does not warrant an evidentiary hearing.

Petition dismissed.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    David Lee LEWIS v. STATE of Arkansas
    CR 85-223
    709 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered April 28, 1986

      James W. Haddock, for appellant.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The issues raised in this appeal concern court rulings admitting certain testimony into evidence. We find no error and affirm the trial court. Since this is a second appeal, our jurisdiction is pursuant to Sup. Ct. R. 29( 1) (b) and (j)-

The appellant, David Lee Lewis, was convicted by a jury of first degree battery and aggravated robbery on October 5,1984, and sentenced to 60 years imprisonment. On appeal to this court, the verdict was reversed and remanded on grounds not pertinent here. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). A second trial was held September 19 and 20, 1985, which again resulted in the conviction of Lewis and a sentence of 54 years imprisonment. It is from the second conviction that this appeal is brought.

The appellant’s first contention on appeal is that the trial court erred by allowing the prosecution to read the prior testimony of Otha Lee Spikes into evidence at the second trial. The trial court based its ruling on the fact that Spikes was an unavailable witness under Unif. R. Evid. 804.

The proof on this issue reflects that the trial lasted two days: September 19 and 20. A subpoena was issued and served on Spikes which ordered him to appear on September 19. According to the testimony of the bailiff, Spikes appeared on September 19, but he was not called to the stand that day. The bailiff testified he told all the witnesses to return the following day, however, he was not positive Spikes was in the witness room at that time. Spikes did not return the following day. After lunch on September 20, the prosecutor announced to the court that the sheriffs office could not find Spikes. A deputy sheriff testified that he went to Spikes’ home that morning looking for him and spoke to his brother. He then talked to a farmer whose truck fit the description of one Spikes was seen leaving in that morning. In spite of these efforts, the deputy was unable to locate Spikes.

A witness is considered unavailable if he is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. Unif. R. Evid. 804(a)(5). When the declarant is unavailable as a witness, his former testimony at another hearing of the same proceeding is not excluded by the hearsay rule if the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony. Rule 804(b)(1). The burden of proving the unavailability of a witness is on the party who offers the prior testimony and on appeal we determine whether the trial court abused his discretion in ruling that the witness was unavailable. Worring v. State, 6 Ark. App. 64, 638 S.W.2d 678 (1982), rehearing denied; Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1970).

We have long held that the right of confrontation by a witness may be dispensed with when that witness is unavailable and has given testimony in a previous proceeding against the same defendant, provided the witness was subject to cross-examination in the first proceeding by that defendant. Satterfield v. State, supra. In Satterfield, we explained that a witness is not “unavailable” “unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial,” quoting Barber v. Page, Warden, 390 U.S. 719 (1968).

In most of the cases decided by this court in which a lack of good faith effort was found, the state issued a subpoena for the witness which was never served. See, e.g., Satterfield, supra, and Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980), rehearing denied. Here, the subpoena was served and, in fact, Spikes appeared on the date stated in the subpoena.

We recently considered this question in Jones v. State, 288 Ark. 162, 702 S.W.2d 799 (1986). In that case, the trial was scheduled for October 30 and the witness, Carl Stuecken, was served with two subpoenas within a week prior to trial. In addition, the prosecutor interviewed Stuecken on Thursday, October 25, and again advised him to be in court on the following Tuesday. The witness developed health problems over the weekend and was admitted to the hospital on an emergency basis on Sunday night. He underwent surgery Monday and was in intensive care on Tuesday, the day of trial. We held:

It was only then that the prosecution learned of his unavailability, having relied on his recent observations and the subpoenas.
There was nothing in these circumstances to alert the prosecution to any likelihood of Stuecken’s absence. Nor do we find that the prosecution should have exercised greater diligence in order to have discovered the absence of this witness.

Here too, the prosecutor relied on his subpoena and his recent observation of Spikes in court, and there was nothing to alert the state to any likelihood that Spikes would not return for the second day of the trial. When he failed to appear, the prosecutor dispatched a deputy sheriff to search for him. Accordingly, we find the state made a good faith effort to obtain the presence of Spikes, and his testimony from the first trial was properly admitted into evidence.

The appellant next challenges the testimony of Investigator Ed Gilbert. Gilbert first appeared on the stand to read Spikes’ prior testimony into evidence. The appellant argues it was error to allow Gilbert to subsequently testify since he, in effect, heard Spikes’ testimony despite the fact that the parties had invoked the rule. Unif. R. Evid. 615. Gilbert’s own testimony consisted of nothing more than naming the witnesses he had interviewed and using a city map to identify the locations of streets and houses testified about by the other witnesses.

In McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980), as amended on denial of rehearing, we held it was not error to allow a deputy prosecuting attorney to testify on rebuttal when he was not placed under the rule. In so holding, this court stated:

Here . . . [t]he witness was in the courtroom only briefly and did not hear the appellant testify. There is no contention that the testimony he did hear, a policeman’s, was in any way related to the matter about which the deputy testified, nor does it appear from the record. We find no error.

See also, Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979).

Lewis has not demonstrated that Gilbert’s testimony related to Spikes’ prior testimony in such a way that Gilbert’s answers could have been affected by his presence in the courtroom. The trial court did not err in allowing him to testify.

Appellant’s final contention is that the court erred by permitting unsworn out-of-court statements made by Gloria Tolliver into evidence.

During her testimony at the trial, Ms. Tolliver stated that she was with the appellant and his family at a laundromat on the day the crime occurred. She further testified that the appellant left the laundromat for a period of time. She claimed at the trial that she did not know what time he left nor did she remember what clothes he was wearing that day. The prosecutor asked Ms. Tolliver if she had previously made a statement to Investigator Gilbert in which she gave the information as to the time frame and the appellant’s clothing. Ms. Tolliver admitted making the statement and said that some of that statement was true and some of it was not.

Appellant maintains it was error to allow the state to impeach its own witness when the witness admitted making prior inconsistent statements. The court ruled that Ms. Tolliver’s prior statement could be used for impeachment purposes but could not be introduced into evidence. The court admonished the jury during the course of Ms. Tolliver’s testimony that her prior statement was to be considered only for the purpose of judging her credibility and not as evidence of the truth of the matter set forth in the statement.

The appellant argues Ms. Tolliver’s prior statement was inadmissible under Unif. R. Evid. 801(d)(l)(i) since the statement taken by Investigator Gilbert was not “given under oath and subject to the penalty of perjury.”

The appellant is correct in his analysis of Rule 801(d), however, Ms. Tolliver’s statement is admissible under a different rule. Uniform R. Evid. 607 provides that the credibility of a witness may be attacked by any party, including the party calling him. Furthermore, Rule 613(b) allows extrinsic evidence of a prior inconsistent statement by a witness into evidence if the witness and the opposite party are afforded an opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness.

In Chisum v. State, 273 Ark. 1, 616 SW.2d 728 (1981), rehearing denied, this court held that statements made by a witness to the sheriff during his investigation were admissible for impeachment purposes as inconsistent, out-of-court statements under Rule 613 when the witness professed at the trial not to remember what she told the sheriff. We explained in Chisum that it was formerly the rule that inconsistent statements were admissible only for impeachment and not as substantive evidence. That limitation has been abolished in civil cases and modified in criminal cases to the extent that prior statements given under oath and subject to the penalty of perjury are admissible as substantive evidence. The common law rule still prevails in criminal cases that prior inconsistent statements not made under oath, as in the case before us, are admissible only for impeachment purposes.

We considered the question of unsworn prior statements again in Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), rehearing denied, where we held it was permissible for a party to impeach his own witness by the use of a prior inconsistent hearsay statement if the probative value on the issue of impeachment outweighs the prejudicial effect arising from the danger that the jury will give substantive effect to the prior inconsistent statement.

Applying these rules to the case at bar, we find that the trial judge complied with the provisions of Rule 613. Both Ms. Tolliver and the appellant were afforded an opportunity to explain or deny Ms. Tolliver’s statement, and the appellant was able to interrogate the witness. The trial judge correctly ruled that the statement was admissible solely for impeachment purposes and in turn admonished the jury to only consider the evidence in that light. Also, the trial judge weighed the prejudicial effect versus the probative value of the statement in making his decision, as required by Roberts.

It is a general rule that relevancy of evidence is within the trial court’s discretion and, absent a showing of abuse of that discretion, its decision will be affirmed. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), rehearing denied. We have held that the similar problem of weighing the prejudicial effect of cumulative evidence against its probative value is a matter of balancing which is primarily the function of the trial judge in the exercise of his discretion. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). The exercise of that discretion should not be interfered with on appeal in the absence of manifest abuse, Id. Here, no such manifest abuse has been demonstrated. The admissibility of evidence must necessarily be decided on a case-by-case basis. The trial court properly limited the testimony and correctly instructed the jury. In addition, the appellant has failed to show that he suffered any prejudice as a result of the court’s ruling. Unif. R. Evid. 103(a).

Accordingly, the conviction is affirmed.

Purtle, J., not participating.