Philip BOREN v. Bill QUALLS
84-113
Supreme Court of Arkansas
November 13, 1984
Rehearing denied December 17, 1984.
680 S.W.2d 82
HICKMAN, J., and DUDLEY, J., join in this dissent.
Joseph Wm. Segers, Jr., for appellant.
William A. Storey, for appellant.
For reversal, Boren insists the trial court improperly denied him the right to impeach Qualls by showing he had stated under oath he had never been arrested or convicted of a felony, or a misdemeanor, when in fact he had been arrested twice for rape and once for theft of property and had been convicted of careless driving. Specifically, Boren contends
The admissibility in general of felony arrests and misdemeanor convictions for impeachment purposes need not be examined, as Boren concedes that under
We can eliminate part of the problem by observing that the affidavit gives no support to Boren‘s position. It does not mention arrests, it merely states that Qualls has never been convicted of a felony, which Boren does not dispute, or of “a misdemeanor or an act involving dishonesty or false statement.” Boren argues that Qualls has a misdemeanor conviction for careless driving and hence, his affidavit is false. But that alleged offense was never proffered and we have said a number of times a proffer is essential. Jones v. State, 283 Ark. 308, 675 S.W.2d 825 (1984); Farrell v. State, 269 Ark. 361, 601 S.W.2d 835 (1980); Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979); Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978).
With the affidavit aside, all that remains is the single interrogatory, “[p]lease state whether you have ever been arrested and/or convicted of any crimes.” The answer was
It is obvious this problem has arisen because the interrogatory employed an imprecise term, “and/or,” when precision was called for. The phrase has been so soundly criticized as to have been driven almost entirely from current usage. At best it has been labelled “equivocal,” “obscure” and “meaningless,” at worst “slovenly,” “improper” and “a linguistic abomination.” (See cases cited in Words and Phrases, Perm. Ed., pages 640 to 647). It has no place in modern practice, least of all in discovery interrogatories. A list of condemnors includes a number of our own cases. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976); Guerin v. State, 209 Ark. 1082, 193 S.W.2d 997 (1946).
The short of the matter is the phrase may be interpreted as either conjunctive or disjunctive, and it is plain Qualls, no doubt advised to do so, chose the conjunctive use so as to interpret the interrogatory as, “have you ever been arrested and convicted of any crime,” to which he could truthfully say, “no.” The record confirms our view: when asked in-chambers if he recalled answering the interrogatory, he said, “And/or, yes sir2.”
We do not suggest discovery should be treated as a game of cat and mouse, or that one litigant should be rewarded by the artful avoidance of truthful answers to proper questions. But that is not the issue before us. Our task is to determine whether (as best we can with no abstract of relevant in-chambers proceedings) the evidence of false swearing was so clear the trial court abused its discretion by excluding it for impeachment purposes. We think not under all the circumstances.
Next, appellant contends he should have been permitted under
Another point is the trial court erred in allowing Dr. Robert Dow, a Fayetteville neurologist, to testify that dental, hospital and x-ray services were reasonable and necessarily incurred by Qualls as a result of the fight. After establishing Dr. Dow‘s medical experience, counsel for appellee submitted his qualifications as an expert, and he testified concerning Qualls’ complaints from the trauma. He said he was generally familiar with the cost of x-ray‘s and dental work in the Fayetteville area and we are unable to say the trial court abused its discretion in permitting him to express an opinion on these matters. See Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).
The final point is that there is no evidence to support submitting the issue of punitive damages to the jury. No objection to the punitive damage instruction appears in the abstract, but aside from that, it can hardly be questioned that punitive damages are recoverable by one who suffers injury as a result of blows intentionally inflicted. See Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972).
In response to the dissenting view, we do not go to the record to reverse. First National Bank of Brinkley, Ark. v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984); Routen v. Van Dyse, 240 Ark. 825, 402 S.W.2d 411 (1966); Tenbrook v. Daisy Mfg. Co., 238 Ark. 532, 383 S.W.2d 101 (1964).
The judgment is affirmed.
HICKMAN, J., concurs.
HUBBELL, C.J., and DUDLEY, J., dissent.
DARRELL HICKMAN, Justice, concurring. The debate between my colleagues is interesting but both opinions overlook that the appellant did not even abstract the basis of the discussion: the affidavit. I would affirm under Rule 9. Ark. Sup. Ct. R. 9.
Prior to the trial, in response to an interrogatory, the appellee answered under oath that he had “never been arrested and/or convicted of any crimes.” At trial, in order to impeach the credibility of appellee, appellant sought to cross-examine the appellee about the falseness of his sworn statement. The trial court erroneously sustained appellee‘s objection. Appellant proffered evidence to prove false swearing by showing that appellee had been arrested for rape in 1980, for theft by receiving in 1981 and for rape in 1982. False swearing is probative of character for untruthfulness and, unless that probative value is substantially outweighed by danger of unfair prejudice, may be inquired into on cross-examination.
The majority opinion does not directly address the issue of false swearing, even though it is the first point of appeal. Instead, it recites that the phrase “and/or could have been interpreted as conjunctive or disjunctive” and “it is plain Qualls [appellee], no doubt advised to do so, chose the conjunctive ...” and therefore, according to the majority the evidence of false swearing was not before the trial court.
Before anything else, each person who reads the majority opinion and this dissenting opinion should be aware that the appellee has never argued, or even
The appellant sought to elicit testimony concerning prior acts of misconduct by appellee to impeach his credibility. The Court excluded the testimony on the basis on
Rule 609, Uniform Rules of Evidence ,Ark. Stat. Ann. § 28-1001 (Repl. 1979) . This rule states that “for the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year ... and the court determines that the probative value of admitting this outweighs its prejudicial effect to a party or witness, or (2) involved dishonesty or false statement, regardless of punishment.”This rule applies to convictions of crimes. The theft and rape incidents referred to by the appellant were not convictions. So the trial court properly excluded cross-examination testimony on specific acts which did not result in conviction.
Perhaps nothing demonstrates as clearly as the actual trial record that there was no misunderstanding, but only an erroneous ruling:
Mr. Segers: [appellant‘s attorney] Your Honor, the following evidence is proffered for the purpose of impeachment purposes only.
The Court: Alright, let the record show that the jury has been excused for the lunch period, and this testimony is without the hearing of the jury. Proceed.
Q. Mr. Segers: Mr. Qualls, do you recall signing an interrogatory, — answers to interrogatories, on the 22nd day of September, 1983, where I asked you specifically, “Please state if you have ever been arrested and/or convicted of any crimes?” and, you answered: “No.“?
A. And/or yes, sir.
Q. Mr. Segers: O.K., specifically, had you not been arrested for theft by receiving in August of 1981?
Mr. Storey: [appellee‘s attorney] I object, Your Honor
The Court: What was the question?
Mr. Segers: The question was: Is it not true that you were arrested in August of 1981 for theft by receiving?
The Court: I will sustain the objection.
Mr. Segers: For the purpose of the record, we would like to proffer that if he had answered the question, the answer would be, yes.
Q. Mr. Segers: Were you not arrested in North Little Rock on May the 23rd on 1980 on a charge of rape?
Mr. Storey: Objection, Your Honor:
The Court: Sustained.
Mr. Segers: For the purpose of the record, had he answered correctly and honestly, the answer would be: Yes.
Q. Mr. Segers: Were you not arrested on July the 16th, 1982 for the charge of rape?
Mr. Storey: Objection, Your Honor.
Mr. Segers: Your Honor, let the record show that if
the witness had answered fairly and honestly, the answer would be in the affirmative.
Again, to clearly demonstrate that there was no misunderstanding, and to clearly show the issue of false swearing, after the proffer, appellant‘s counsel stated:
Mr. Segers: It is the purpose of introducing this evidence not for introducing as to
Rule 609 of the Arkansas Rules of Civil Procedure , but only to introduce the evidence to show the truth and veracity of Mr. Qualls and concerning the fact that he has sworn under oath before this court in writing and verbally that he has never been convicted of any crimes, either felony or misdemeanor, and he, in fact, has. I think that his testimony is admissible testimony that goes to impeaching his credibility. If he had signed an affidavit saying he had never been convicted of a felony, or an act involving dishonesty or a false statement, then, that (sic) would be cover. That would be proof, and there is nothing that this court could do or I could do to introduce the testimony; in that he has, in fact perjured himself in writing and verbally, — I, — I think it‘s admissible.# # #
Mr. Segers: Now, Your Honor, I am not arguing with the court. Please believe me, I just want to make my record.
The Court: Sure, sure.
Mr. Segers: And, that is that we are not trying to introduce that he committed a crime. It is our opinion that it would be different had the evidence to it said he had paid the bills, and I could come in here and show that he did not pay the bills, which would go to his honesty. He has said, I have never done something, and I think it‘s admissible, — not as to the crime. I agree wholeheartedly with the court that the crime in and of itself could not be admissible.
The fact that he was on the stand and made a statement under oath that I can show is not true, that would go to his truth and veracity, and would impeach him. Thank you.
There was no misunderstanding over the disjunctive or conjunctive use of the phrase “and/or” and the issue of false swearing was clearly presented. The trial record demonstrates that each person involved understood that the appellee had sworn that he had never been arrested for any crimes and that the affidavit so stating constituted false swearing. The trial judge erred in excluding evidence of false swearing. It was prejudicial to appellant since he was not allowed to fully impeach the credibility of appellee. Since credibility was the key to the trial, the erroneous ruling deprived appellant of a fair trial. I would reverse and remand for a new trial.
HUBBELL, C.J., joins in this opinion.