*1 Affirmed. STRECKER v. Paul BLAYLOCK
Particia S.W.2d 86-154 Arkansas Court of Supreme 2, 1987 delivered March Opinion *3 McLarty, A. for James appellant. John Nor- Blankenship, by; Belew &
Harkey, Walmsley, Harkey, man for appellee. Strecker, Paul filed Dudley, Appellee,
Robert H. Justice. Patricia against appellant, suit alienation of affections a had the destruction of that caused Blaylock, alleging appellant in of found favor marriage jury to Chloe Strecker. appellee’s $50,000.00 compensatory Strecker and awarded appellee $250,000.00 for new damages. We reverse and remand punitive trial. the trial ruling by concerns first point appeal
Appellant’s Strecker, court which excluded the the 20- testimony Debbie year-old daughter of and Chloe Strecker. The proffer Debbie’s reflects that three to four weeks before the trial she contacted and told him her appellee’s lawyer mother, Strecker, Chloe were Blaylock not homo- sexual lovers and that marital strife had existed between her brief, parents years. to his According had appellant’s lawyer not contacted Debbie because he did not wish to involve in her trial with her father on one side and her alleged mother’s homosexual lover on the other. The record discloses only witness, Debbie was not subpoenaed to aas but that she appear did There, attend the trial as an interested she spectator. heard statement, her said, father’s attorney’s opening in which he part:
Paul going tell that he has you been hurt emotionally. ruined, That in his his opinion life has been family lives of at least two of his children This ruined. woman gives them marijuana. This woman right gives here his son old, who Chip, years is 16 and I’ll it to . prove you. . Following statement, completion opening appellant’s Debbie approached and said appellant’s attorney that appellee’s opening statement was not true and that she testify wanted to *4 that effect. notified Appellant’s attorney the court and appellee’s attorney, and Debbie was under the The next placed rule. day called as appellant her a witness. The objected because she had not been listed as a witness and because she had heard statements. opening The trial court ruled that was not surprised by witness and refused to exclude her testimony on However, basis that she was not listed. the trial did judge exclude the for the testimony reason the witness heard had opening statements. The ruling was erroneous.
Both agree Debbie’s parties proffered testimony was mate- fact, rial. In in his brief appellee states: “As the eldest child of the Streckers, she would have been in a position understand the relationship between her of parents many the other matters which were to be testified to during the trial. To that there is no question.”
The witnesses, rule providing for the exclusion of 615, A.R.E. Rule involvethree may different of types rulings by a 344 standard for the a different presents
trial
and each
judge,
type
of a
request
“At the
of the rule provides:
The first sentence
judge.
cannot
excluded so that they
order witnesses
shall
the court
party
witnesses,
order
and it
make the
may
of other
hear
discre-
added.)
of
The standard
on
own
(Emphasis
its
motion.”
of no
the rule is that
of
judge
part
to the trial
this
given
by
tion
rule,
granted.
it must be
If a
party requests
discretion.
rule does not
“This
provides:
The remainder of the rule
(2)
or
is a natural
(1)
person,
of
a
who
party
authorize exclusion
a
person
a
that is not
natural
an officer or
of
employee
party
(3)
or
by
attorney,
person
its
designated as its representative
to the
to be essential
is shown
aby
party
whose presence
rule,
this
phase
cause.” Under
his
presentation
he is
because
an
sequestered
should be
whether
deciding
person
whose
person
presence
of a
party,
officer or employee
judge
afforded
the standard
discretion
necessary,
v. Riley,
Mutual Fire Insurance Co.
Home
average discretion.
750, 480
Arkansas Power &
(1972);
Light
957
S.W.2d
90,
Melkovitz,
(1984).
viable alternative State, 1855, Pleasant since and the one favored in this State 1893, since and favored federal courts (1855), available, States, (1893) was v. United U.S. Holder *5 the third option, its It was error use proper. use would have been exclusion. discretion to exclude the very
A trial court has narrow State, 171 Ark. Harris v. of witness. noncomplying testimony 207, State, v. 258 Ark. 523 658, (1926); S.W. 367 Williams 285
345
State,
755,
Norris
v.
Ark.
536 S.W.2d
377
259
(1975);
S.W.2d
of
298
Our
exclusion
a witness’s
(1976).
standard
the
remains
it has been for
a standard
testimony
many years,
as
can
the
by
narrow discretion. That narrow discretion
be exercised
consent,
the
is had with
judge
when
only
noncompliance
connivance,
In Norris
v.
or
of a
or his
procurement
party
attorney.
State,
755,
259 Ark.
298
we
with
(1976),
S.W.2d
quoted
State,
Williams
following
from
v.
approval
language
207,
(1975):
In Norris 755, 536 259 Ark. S.W.2d (1976), we State, from Williams additionally 207, v. quoted 258 Ark. S.W.2d 377 (1975) as follows:
The power to
exclude
of a
testimony
witness who has
violated the rule should be rarely exercised. We have been
unable to find
case in
any
which this court has sustained the
action of a trial court excluding the
of such a
witness. While the
witness
subject
punishment
contempt
the adverse party
argument
is free in
to the
jury,
raise an
as
issue
to his
by reason of his
credibility
conduct,
violation,
the party, who is
innocent
the rule’s
should not
Harris
be
ordinarily
of his
deprived
testimony.
State,
State,
supra; Aden v.
789,
v.
237 Ark.
376 S.W.2d
State,
277;
Mobley
sustained the noncompliance. governed not be that we should argues While it is of are criminal cases. because most them
above cases in criminal considerations there are additional constitutional true cases, not limited to criminal of witnesses is sequestration cases, the relevant excluding reasons for not addition, scarcity In civil criminal cases. both apply of the history due to the subject probably civil cases on the Rule 615 dates back civil to A.R.E. predecessor statutes. The is, that the trial that it provided civil code and was permissive; witness of the any from courtroom exclude judge “may” 1979); Vaughn v. 28-702 (Repl. adverse Ark. Stat. Ann. party. § hand, State, 505, 479 (1972). On the other S.W.2d is, rule “shall” mandatory, judge the criminal was 1977); (Repl. Ark. Stat. Ann. 43-2021 exclude witnesses. any § State, would been used the rule have Obviously, v. Vaughn supra. cases, more criminal often in and there would be more criminal appeals. the harmless error bring cannot himself within
Appellee assignment must on this first rule. we reverse Accordingly, because are they error. We discuss the other points appeal again retrial. likely upon arise violated court and his counsel repeatedly Appellee and appellee’s order the mention of certain matters prohibiting will witnesses. We doubt that such acts counsel led frequently retrial, do, (1) if court can admonish they reoccur at but (2) bench or before the attorney jury, the witness or the at the one or proper and either improper permit strike question re-ask, (3) cite the offender refuse to allow counsel Alexander v. (4) Chapman, mistrial. contempt, and declarea sanctions, 238, 711 (1986). With this arsenal S.W.2d 765 violations of be able to judge prevent repeated a trial leading orders and of witnesses. pretrial viola repeated allows judge frequent If the trial tions, we will reverse. Alexander timely objections, over Chapman, supra. evidentiary concerns an third of appeal point
ruling. The trial court allowed the appellee prove *7 had a homosexual with his wife. In an relationship alienation action, it is to permissible prove though sexual relationship, such is ingredient conduct not an essential of the cause of action. court, addition, The trial in allowed the to that the prove had in appellant previously, engaged but a homosexual recently, affair with another woman and circumstantial evidence indicated that she knew that she had alienated other the woman’s affec- tions. The appellant contends that the latter ruling was in error. The assignment merit, of error is without and the evidence may be again at retrial. permitted
In Johnson v. Truck Insurance
285
Exchange,
470,
Ark.
(1985),
In an affections, action for alienation of one of the elements is proof that the defendant acted with the intent to do Brooks, act. v. wrongful 222, 153 Hodge S.W. (1922). Evidence of a defendant’s state of mind motives with respect admitted, the plaintiffs latitude, is spouse with to prove motives; such however, state of mind and evidence, irrelevant under guise of such purposes, instead tending only to arouse the prejudice of the is jury, not admissible. 41 Am. Jur. 2d Husband and 495 (1968). The real issue then is whether §Wife the evidence of the prior affair independent has relevance prove intent.
Although discussing cases, criminal following quotation State, from 266 S.W.2d (1954) is Alford pertinent: The issue of intent is theoretically present in every case, criminal and for that reason it is here we are most apt overlook the basic requirement independent Stone, relevancy. Professor above, in the article cited has cogently demonstrated how it is to easy reason in this manner: Evidence prove admissible, intent is and since the present case involves intent be proof should 988,1007. received. 51 Harv. L. Rev. What has happened relevant shifted from evidence has emphasis purpose proving intent to evidence prove offered If intent, is a bad man. this showing that the defendant by rule has exclusionary transfer of emphasis permitted meaning. its lost was independently in this case
The evidence submitted affair concerning the prior relevant intent. evidence to prove to a pharmacist woman was married showed that the other a car. Appellant Her been run over boy had children. little had pharmacy. other woman’s husband went to work with time, very friendly became period Over relation woman, into a homosexual ultimately other entered *8 about the statements derogatory with her. made ship Appellant as, understanding,” “he wasn’t “was woman’s husband such love,” home,” “deserved at and that she express never “didn’t evidence indicated that appel someone better.” Circumstantial other woman to be lant knew that the affair had caused the her to the extent damaged from her husband and had alienated necessary. treatment was psychiatric that hospitalization which leading relationship The circumstances up was at were similar. Chloe Strecker strikingly caused the suit bar children, and had one whom appellee, married to a pharmacist, went to work anby Appellant was struck and killed automobile. According his to the pharmacy. appellee’s for Chloe’s husband in evidence, with Chloe relationship she entered into homosexual statements about him. and made derogatory from the first affair has evidence Manifestly, knew the result of to show that independent relevance affair, therefore, Strecker relationship first entered the causing the same result. trial with the conscious purpose Accord, Golding court in the evidence. was correct permitting (1974). S.E.2d 422 N.C. Taylor, App. evidentiary involves another point final also Appellant’s case-in-chief, offered, his ruling. part as appellee Catholic Father priest. of Father Ralph Esposito, testimony of a recording telephone tap to a had listened Esposito wife, Strecker, and appel- Chloe between appellee’s conversation Strecker after the was Chloe recording destroyed lant. The was that in priest’s witness to The core of the listened it. you the conversation Chloe Strecker asked “do want appellant, to fuck you?” me
The trial court denied motion in limine appellant’s exclude the was testimony. Appellant argues that the statement been was hearsay argues should have excluded. it Appellee not hearsay as it was not offered in evidence for the truth of the matter asserted. We have included in undisguised statement because, see, this opinion any as reader can the statement could made, be used th*e was it be solely statement or could prove used as evidence to probative show a homosexual liaison. limine
Appellee’s argument at the on the in hearing motion to exclude the evidence and statement appellee’s opening clearly and, fact, demonstrate that the was statement intended to be in was used to the truth of the prove matter asserted. motion,
During argument on the appellee’s attorney said in the pertinent “It part, probative point any more than other evidence which we can procure with reasonable efforts. It is essential to our lawsuit. It is the exact only probative evidence that we have of this sexual liaison.” The argument showed that intended to appellee contents, use its prove statement judge have excluded it. Further, statement, in opening said, counsel for *9 part:
Paul took this recorded telephone conversation to his Priest, and the Priest is tell going to that before the you is, conversation was completed, that before to listened they conversation, all the is going the Priest he you tell brother, observed this man get sick. physically Paul and his Andrew, was there. Paul excused himself from room. The Priest is going to tell you that he took this telephone conversation equipment that he has so he clearly could hear everything that was said between Chloe Strecker and this person, And he Blaylock. going describe you situation where it was like man and woman lovers talking to each other on the And he is telephone. going to describe you sexually explicit what was language said between these two lovers. And talking I’m about Chloe and this Blaylock. woman this was that you to tell going Priest is further about tell Paul He did not ago. a half and
probably year at recording on that language explicit the sexually all of Paul fact, recently. only very told him And in that time. ill, hearing he became physically because excused himself lover, because that’s her his wife and conversation with this was. what it obviously opening from appellee’s quotation
The above to prove used the statement demonstrates that statement real only hearsay. It was of the matter asserted. the truth be retrial, whether, upon question A.R.E. Rule See residual-hearsay exception. admitted under the Hill v. noted in carefully court 804(b)(5). and This 803(24) that all the Brown, (1984), 672 S.W.2d based either upon rule are hearsay common-law exceptions more attaching reason compelling some necessity upon new any and that hearsay, to the average credibility than of trustworthi- guarantees must have circumstantial exception exceptions. the common-law to those supporting ness equivalent must, trustworthiness, court under In determining rule, (1) determine residual-hearsay language of the fact, (2) material of a statement is offered as evidence which it is offered is more on the point statement probative through can procure than other evidence the any proponent and efforts, of these rules (3) general purposes reasonable of the admission will best be served justice the interests of evidence. statements into wife,
Here, was that of appellee’s statement hearsay whether a tape no issue with takes argument Chloe. Appellant’s between Chloe of a conversation had been obtained actually trial, given her son had fact, stating In Chloe testified at herself. one and that bedroom to her which he took from appellee’s tapes conversation between of the contained a tapes however, sexual denied, any contained tape that the herself. She or suggestions. references *10 It was this destroyed tapes. that she
Chloe also admitted necessary made it action, tapes, son taken having and the Esposito a witness. Father as Esposito to call Father a conversation which contained entire tape listened to the Chloe’s, recognized between two women. He one voice as but the other he could referred as person not Chloe identify except names, testified, Trish or Trisha. Those Chloe were ones she used when referring to appellant. sum,
In it appears undisputed appellee secretly a conversation between Chloe and taped and knew appellant, each, recognized the voices of and took the to Father tape who, Esposito, unlike heard entire appellee, including tape, issue, in sexually explicit statement now and he too recognized Chloe’s voice. He further identified the to whom Chloe person as spoke Trish or Trisha —a name Chloe used in referring circumstances, appellant. Under these there is little room to doubt the trustworthiness the text of the testimony given by retrial, Father Esposito. Upon again be allowed.
Though
argued
not
it has
by appellant,
suggested
been
involving
in our conferences
this case that the tort of
alienation
action,
abolished,
affections is an outdated cause of
should be
dismissed,
this case should be
instead of remanded. The appellant
did not
an
present such
either at
or
argument
appeal,
we will not raise it oursélves. As we
in
said Arkansas
Corp.
Kraft
Johnson,
Nowhere in brief is appellant’s such an argument words, In presented. other such a was neither position taken at the trial court level nor is it set forth here. No that, citation of authority aside from necessary saying jurisdiction, we do not reverse cases on theories not presented by appellant either the trial this court. court Reversed and remanded. JJ., Purtle, concur in and dissent in
Hickman part part. Justice, Hickman, Alienation of af-
Darrell concurring. fection is a civil action that should be I abolished. have see yet the case where affection existed be alienated. The affections are gone by the time the new suitor makes his or her move. Furthermore, this action for vengeance justice. not for
Bitterness permeates these suits and this case epitomizes *11 The appellant’s lawsuits. parties done all such
damage her decency; the limits invaded beyond life has been personal The has has beyond repair. character been demolished achieved He has probably and his children. embarrassed himself The former price? but at what vengeance, his which purpose having through personal been tragedy, in this pawn spouse, life trying the rest her will spend emotional tragedy, probably normalcy. damage to restore her to a semblance psyche won. lawyers Only the children immeasureable. provide that the law should The other side of this coin is who indeed steal affections wrong, forum for a and those it is better another, pay; which a third should “belongs” person, law than in the streets. Our in a court of to resolve conflict law such should not lend itself to legal proceedings. system real or every condone tolerate obligation pacify, has no of their fellowmen. imagined can suffer at the hands wrong people need to walk from a and away problem Sometimes people simply The courts cannot solve all of it. This is one of those cases. accept ills, who do not seek we not lend them to those should society’s feelings, we for such becoming personal channel justice. By We avoid some of the courts. historically demean the purpose between religious disputes political disputes lawsuits: such as this. hearing cases and children. We parents quit I would and dismiss. reverse Purtle, J., joins.