*1 2.1, under Ark. R. Crim. P. ally, “reasonable means a suspicion” on or based facts circumstances rise more suspicion give than a bare an not suspicion, imaginary purely conjectural The facts of case are suspicion. this clear that Officer not did Willey have and articulable reason specific, particularized, indicating that Sims was involved in criminal any drug-related activity. Therefore, we hold trial court erred in Sims’s denying motion to suppress.
Sims raises a second that the trial point appeal, namely, court erred in his motion to additional evidence denying present claimed was relevant that the Police proving Blytheville were motorists Interstate 55 consistently without stopping along individualized Because we reverse on his first it suspicion. is point, to reach or discuss his second unnecessary argument appeal.
Paul E. HANLIN v. STATE of Arkansas
CR 03-344
Supreme 1, 2004 delivered Opinion April *4 Firm, Lisk, The Lisk D. for by: Lynn appellant. Beebe, Gen., Gen.,
Mike Brent P. Att’y Ass’t for by: Gasper, Att’y appellee. Robert L. Paul E. Hanlin Brown, Appellant Justice. his
appeals judgment conviction for and his sentence of twenty-two as years well as the prison denial his motion for a trial. new He argues following points (1) appeal: the evidence verdict; was insufficient support (2) circuit abused his discretion in admitting statements hearsay state; was accused of another in another (3) judge abused his discretion in to allow delve into refusing the victim’s sexual when the history, do permitted so. We reverse and remand this case for further proceedings. The facts in this matter were at trial. Delvin developed Hanlin, Hanlin, brother H., of Paul testified that his daughter, was the victim. Hanlin is Delvin wife *5 Hanlin’s and the Hanlin off-and-on with Delvin L. H. Paul Hanlin lived mother of In 1997 until 2000. October his from May and family April in a in the outskirts all trailer were living park they Jacksonville. 12, 1997, his wife left Delvin and October During evening their and Paul Hanlin to celebrate their trailer home birthdays, remained two children. referred as with Hanlin) (hereinafter old, time, and was ten her brother L. H. twelve years At old. years brother to bed and testified that Hanlin sent her early
L. H. She that the beer and “some beer and some weed.” said offered her feel “kind of She related to made her funny.” the marijuana home, her on her inside the trailer madé lie that Hanlin took jury couch, her and of’ her. He took off then pants, “got top his to his and “inserted down his pants kneecaps, pulled penis her, L. tried to him off’ of her. H. testified that she inside” “push After the she went but saying please rape, “kept repeatedly.” room, her and father returned around her and mother straight L. her H. told 10:30 or 11:00 The following day, night. but she did not tell her brother what had happened, younger her that he would hurt her family because Hanlin had told parents, did so. if she 1998, B., H.’s, L. told L. H. D. a friend of On February turn, H., L. in D. B. that had her. told
that her step-father raped be and that her. D. B. L. H. “it’d okay Hanlin had told raped H. or her dad.” L. testified needed to tell her mother she in after October 1997 a second time sometime Hanlin her raped trailer home. the same with his later moved Alabama girlfriend Maggie M., 1998, he S. three told
McDaniel and her children. Maggie’s H., had than L. that he had who is three months older daughter, 31, 1998, or with L. H. December January intercourse On sexual H., mother, 1, 1999, about the L. M. told her S. Maggie, Arkansas, Late called her sister in Debbie and Stringfellow. Maggie 7, 2000, Debbie Stringfellow May evening that Hanlin had Hanlin with news husband Kathy approached L. H. to Hanlin took L. H. The next morning, Kathy raped about to her mother’s questioning response private park, her, had L. that Hanlin hurt H. answered ever whether anyone house and H. then went to friend’s her. raped to file Police Department call Delvin Hanlin and Jacksonville a report. *6 9, 2000, and On Hanlin L. H. met with Officer May Davidson, a with the Police Barry patrolman Depart- Jacksonville ment. Officer Davidson’s included the fact that L. H. had report said Hanlin her two beers but did not state that L. H. said gave her Detective of the gave marijuana. Harper Jackie Jack- sonville Police also interviewed L. H. and her Department parents M., as well as McDaniel and her in S. Alabama Maggie daughter, Detective received the written statements of telephone. Harper M., McDaniel and which were Maggie S. Alabama prepared authorities.
That same Officer Davidson conducted a day, “traffic stop” on Hanlin who had a traffic warrant him for outstanding against of fines. Officer Davidson read non-payment Hanlin his rights told him that he was for being denied the investigated rape. and Officer Davidson allegations, told him not to return to his brother’s house.1 12, 2000,
On Dr. a May child-abuse Jerry Jones, specialist with Arkansas Children’s H. examined L. Hospital, She was at the He time. fourteen-years-old and anal performed genital examination and testified that using the anal exam colposcope However, and external exam were genital normal. he stated that L. H.’s had a notch” in hymen an area “that is “deep commonly when a child has been injured abused.” to Dr. sexually According the notch Jones, was not fresh and had healed “the best it could.” Dr. further testified that L. H. had started her menses when Jones she was and that a thirteen-years-old could have tampon possibly caused the tear and notch. He said that resulting possibility, however, was low because this would have been “quite extremely Dr. painful.” wrote on his chart his following examination of Jones L. H. that this was an finding “highly suspicious” object labia, outside, between the “having on the passed into the lips cleft and genital striking it.” hymen injuring 13, 2000, On May Hanlin, Detective talked with Harper who provided with his address and number. Detec- telephone tive set a date with Hanlin Harper meeting for additional ques- 19, for either tioning 16May 2000. Hanlin failed to May attend him, was meeting. unable to reach and on Harper 1 Hanlin jail arrested and for of traffic apparently fines. The placed nonpayment record is silent on the jail. conditions of his release from 2000, 27, was issued for an arrest warrant September 2002, and he was 17, arrested Hanlin was L. H. On April with charged rape. subsequently trial on October
Prior to commencement jury be defense counsel would not ruled that the circuit judge after about L. H.’s sexual history physical to ask allowed and that the Dr. May examination by Jones *7 the about to discuss criminal would not be allowed any allegations in Alabama. of another girl rape case, L. described the events the H.
As of State’s part that she had never in She testified the surrounding rape question. the before that sexual contact with night had anybody any her, that that had done like she nobody anything and agreed raped with had no sexual contact before. She added that she her her, 1997, when Hanlin and May between October raped anybody She added that she was still Dr. examined her. when Jones her that had had “consensual” but she when virgin raped A motion for directed verdict sex on her birthday. sixteenth and the made defense counsel evidence was insufficiency denied. case~in-chief, asked Hanlin’s
Before defense counsel began abuse Texas whether he could L. H.’s sexual in the explore circuitjudge in had door to this line because opened prosecutor H.’s that she Dr. and L. testimony questioning by Jones’s before 1997. The contact with October had never had sexual anybody and said that such evidence would circuit denied the motion judge violate law. rape-shield its as first wit- The defense called Detective Harper Jackie testified that L. H. never said
ness. Detective anything Harper had that L. H. knew he Hanlin’s her but about giving marijuana that also testified her with his Detective Harper penetrated penis. and of S. M. she had learned from statements Maggie McDaniel, Alabama, told were in that Hanlin which prepared court intercourse with L. H. The S. M. that he in sexual engaged about the door to ruled that Hanlin had inquiry initially opened statement, Hanlin’s counsel even though in S. M.’s everything and how Delvin that he was establish merely trying argued in about L. H.’s Hanlin received news rape January Kathy 1999.
Later, was cross-examining when the prosecution to the defense counsel objected prosecutor’s questions Harper, Alabama. The her in statement Hanlin’s about S. M.’s raping it advised “Leave alone there.” prosecutor: right He sustained defense counsel’s for further.” objection “anything examination,
On redirect defense counsel posed question to Detective dealt with how M. S. told her mother Harper about H. and how her mother told Debbie Arkansas, who, turn, in told Hanlin. In the Stringfellow course defense counsel said that M. had framing S. question, talked to her mother in December “and told her some recross-examination, Before things.” moved prosecutor again defense counsel the door to S. M.’s opened explore Alabama, and defense counsel The objected. circuit judge said, allowed the to do so but prosecutor “I think you’re making added, error,” do, reversible what want you your “[d]o peril.” The then had Detective testify Harper that, recross-examination to S. M.’s written statement according officers, to Alabama 24, 1998, given on December police Maggie M., sister, McDaniel had to work and left S. gone and her brother with bed, Hanlin. Her brother and sister had but gone *8 S. M. and Hanlin were television in watching bedroom. Maggie’s Hanlin was and and smoking began S. M.’s drinking rubbing shoulders and breast. S. M. moved but Hanlin told away, her to return and lie down. He touched S. M.’s breasts inserted his again, into her and his mouth fingers vagina, on her He asked put vagina. S. M. if she wanted him to his inside her put vagina, she said penis and he did. yes, defense Following counsel moved testimony, that this be struck and the be testimony admonished that it jury could not consider the in Hanlin’s The assessing guilt. ruled as follows: judge “Well in you’ve on gotten hearsay and hearsay I think hearsay she’s hearsay just made reversible error, call, but that’s her so I’m not to do it.” going Hanlin took the stand and denied ever sex with H. having sexual with doing her. He anything said L. H. had been “touched” a friend of Texas, when lived in they and parents Delvin and Hanlin told Hanlin not even to L. H. The hug and immediately defense counsel objected said he would not that line of pursue questioning.
The circuit denied judge Hanlin’s renewed motion for directed verdict at the close of all the evidence. The also denied defense counsel’s mistrial motion based on the admission of statement about the hearsay of S. M. in Alabama. rape
525 him and sentenced to of The found guilty jury for new trial His motion in years prison. subsequent twenty-two about the Alabama to the related hearsay testimony based on errors H. Texas was abuse of L. in 1995 sexual and alleged denied.
I. the Evidence Insufficiencyof to that there was insufficient evidence Hanlin first argues verdict He that he moved for a directed the verdict. claims support close all the case and at the close of the State’s again evidence, R. Crim. P. He 33.1(a). with Ark. compliance L. H.’s testimony, the evidence that was challenges presented she that it inconsistent with what told because he police says officers, friends, the circumstantial He also family. challenges and the statement hearsay of abuse evidence suggestive physical S. M.’s rape. regarding to standard of review for challenge
The
State, 341
set out in Sera v.
of the evidence was recently
sufficiency
denied,
61, 73,
415, 434,
Due double-jeopardy issues evidence other prior reviews issue sufficiency See, S.W.3d v. Ark. raised on appeal. e.g., Jones clear that evidence court has made it This (2002). perfectly heard, *9 saw, he to or she from a witness who testifies what 523, State, 95 Mills v. 351 Ark. is direct evidence. See experienced conviction, the testi a With to S.W.3d 796 (2003). regard rape itself, victim, sufficient constitutes standing mony rape State, also v. 316 to conviction. Id. See Laughlin evidence support 489, 872 848 (1994). Ark. S.W.2d H., victim, case, testified to instant her. as the who and identified Hanlin raped
what occurred person with an consistent that L. H.’s had injury testified hymen Dr. Jones 526 was evidence fled
sexual abuse. There also Hanlin presented with after notified of a jurisdiction being meeting to discuss the is evidence of Flight alleged rape. probative Harper State, 471, 273, See, v. Howard 348 Ark. 79 S.W.3d cert. guilt. e.g., denied, State, 172, U.S. 1051 Marshall v. 342 Ark. (2002); was sufficient to S.W.3d 392 The evidence (2000). clearly support conviction. II. Evidence S. M. Hearsay Involving that the court circuit abused its discretion argues evidence, over his had admitting hearsay objection, raped S. M. in out Alabama. He that even stated points judge that he believed the statement S. M.’s was admitting regarding error and that the reversible had ruled on motions previously in limine that the statement was and inadmissible. hearsay
Our standard of review matters to the relating State, evidence set was out Harmon v. admissibility 340 Ark. 18, 30-31, 472, 8 S.W.3d 480 (2000):
This courthas
thatmatters
repeatedlyrecognized
pertaining the
of evidenceare
admissibility
left
the sound discretion theof
trial
court, andwe willnot reverse
a ruling
such
absentan abuseof that
State,
285,
See,
discretion.
Bellv.
334 Ark.
e.g.,
S.W.2d 806
43,
State,
(1998);
v.
334 Ark.
Hanlin’s boiled down its that a argument, is statement made aby to Alabama twelve-year-old girl police officers that he her was raped highly prejudicial, considering was not in the girl courtroom and present subject to cross- examination and that never with that crime in charged Alabama. He claims that the statement was admitted merely bad character and to bolster the prove State’s case him. against Hence, the was more than under prejudicial probative Arkansas Rules of Evidence 403. He further contends that the statement was under Arkansas hearsay Rules of Evidence it because was an unsworn statement made to Alabama police
officers and offered to the truth of the matter prove asserted that he M. He S. adds that S. M.’s statement not raped does fall hearsay within any hearsay exception. *10 the underscores the fact that reversed
Hanlin also judge matter, well on'this full that himself twice knowing admitting ruled reversible error. The first that S. M.’s statement was judge door to these statements on cross- the admitting opened to he sustained defense counsel’s examination. Then objection any made S. M. in Alabama. And then Hanlin by allegations later, against elicit ruled that the could from testimony prosecutor the from Alabama statement about Detective Harper, gleaned mother, what told her because defense counsel the S. M. opened door this to cross-examination. relies decision in Harmonv. to
The State on our supra, Harmon, the circuit In the circuit admitted judge’s ruhng. judge support the evidence over defense counsel’s was elicited objection during the about that cross-examination police investigator prosecutor’s cause the arrest affidavit of used obtain probable investigator’s review, this the and trial In our court looked at testimony warrant. the and determined the counsel’s with judge colloquy evidence, his the because the did abuse discretion in not admitting held that the the door the We further defendant testimony. opened the asserted but offered for the truth of matter was not being relied what information the on was introduced show investigator his affidavit. preparing from the Harmon case in instant case is
The distinguishable made M. Alabama about statement S. here hearsay the truth the matter the State for was offered by case is on the asserted. The Harmon also distinguishable question Harmon, is for defense when the door hearsay testimony. opened affidavit of who counsel called the officer police prepared a witness to asked him about what cause and specifically probable him, led his affidavit. When had told which battery cross-examination, officer asked that same police prosecutor, in the affidavit and whether they witnesses mentioned about other defendant, defense counsel objected hearsay had identified defense counsel countered that The grounds. had told the what all witnesses into the door for inquiry opened This court affirmed. about officer beating. police are different Harmon case entirely The facts Here, the following defense counsel posed from case hand. to Detective Harper: question I a little confused got is clear for the because jury so this Just not, talked M.], in Alabama they’re to make sure
there I want [S. *11 of to her mother in December ’98 and told her some Her things. when, at mother some in time and we’re not calledher sure point sister,Debbie,in Arkansas. And in Debbie Arkansas some in point time, to at least around told apparently,possibly,reported you, May, heard, mother what she had right? [L.H.]’s It is clear to court this that defense counsel’s question pertained only M., to how the information about L. H.’s started with S. who rape mother, it to her then conveyed who it to Debbie conveyed String- Arkansas, fellow in who told Hanlin. That question to do with the absolutely of S. M. in Alabama but nothing rape only had to do with the of L. H. fail we to see how Accordingly, defense counsel the door to what S. M. told opened Alabama authorities about her own rape.2
We hold that the circuit
abused his discretion in
j udge
to
into a
permitting
statement received
inquire
to
in
S. M.’s
Alabama. Not
Harper relating
only
was the
double or even
but
the effect of
triple hearsay,
it
towas
label Hanlin
a
as
bad character who had
person
engaged
in similar
Bad character evidence
activity
is
previously.
generally
inadmissable unless it fits within some
See
recognized exception.
404;
State,
Ark. R. Evid.
330,
v.
223 Ark.
We aware of the pedophile excep tion to Arkansas Rules Evidence 404(b) have summarized that as follows: exception
We have further stated that testimony is admissible to pursuant Rule 404(b) if it is independently relevant to main issue— relevantin the senseof to some tending material prove rather point than merely prove defendant is a or a criminal bad person. recognizing so-called pedophile Rule exception 2 The dissent claims that this does not a between opinion explain away colloquy defense counsel and Detective concerning The S. M. is dissent incorrect about Harper It refers to Hardin’s admission to S. M. that he had had colloquy. sexual clearly intercourse with L. H., which S.M. her mother,Maggie relayed McDaniel.There is no reference in to Hanlin’s sexual intercourse with S. M. Indeed, the colloquy next asked the question detective defense counsel “And was: then her mother indicates she called immediately her friend, here in Debbie, Arkansas when she found daughter.” out from her All of this got to how the word back to the Hanlins that pertains Paul Hanlin had L. H. raped
529
acts
has
evidence
similar
allowing
this court
404(b),
approved
it
same household when is
other children
with the same or
for
with a
act
person
helpful
showing proclivity
specific
has
relation-
whom the defendant
an intimate
class
with
of persons
State,
65,
State,
v.
Ark.
732
citing
v.
Free
293
Mosley
supra,
ship.
this
is
The rationale for
(1987).
recognizing
exception
S.W.2d
of the
sexualinstinct
that such evidence
helps prove
depraved
State,
191,
(1994).
v.
Ark.
Our pedophile exception, us sua is bolstered fact we have before no direct by sponte, that the of S. M. occurred in Alabama. In proof establishing has cases where this court applied pedophile exception, other victims testified trial about defendant’s typically 530
actions,
See,
or there was other direct
offenses.
those
proof
e.g.,
State,
230,
v.
348 Ark.
Though whether having question the in fact did the door to open L. H.’s proof regarding sexual seeMarcumv. prior history, Ark. 771 S.W.2d will (1989), we not address this issue.
Our law that a rape-shield clearly “written provides motion” must be filed the defendant with the court at time any to the time that the prior defense rests. See Ark. Code Ann. was not done. argues This 1999). 16-42-101(c)(1) (Repl. § file and was not able to untenable in an he was position that placed no well We have because the trial was underway. a mitten motion to file written difficult have been somewhat that it would doubt the Nonetheless, of that is a mandatory requirement motion. the hold that statute, to We Hanlin was comply. and required Hanlin’s discretion did not abuse its denying court his sexual abuse due to of the 1995 to introduce motion proof law. with our rape-shield noncompliance and remanded. Reversed dissent. and JJ., Hannah, C.J.,
Dickey, Corbin I from must Corbin, Donald L. dissenting. Justice, dissent conviction reversing majority opinion Appellant’s court erred in admitting testimony. basis that the trial hearsay I that the elicited the examination during agree While was I believe that opened hearsay, Appellant Harper his references the state- through repeated door this testimony S.M., to Ala- McDaniel her daughter, ments made by Maggie however, this issue by authorities. The bama majority, sidesteps A one the references those statements. review illustrating only reveals, mere about record went Appellant beyond questions L.H. made how the information was known regarding fact, he after been warned that Hanlin. Appellant already asked Detec- the door to this was testimony, specifically opening incidents between about the sexual alleged tive Harper questions S.M., as illustrated following colloquy: Appellant true is that Q. Isn’t it that the information from Alabama Hanlin had confessedto told McDaniel Paul Maggie [S.M.] — —(cid:127) her in on ChristmasEve of 1998? in made this statement to time I that in this statement. It first says A. don’t see Eve of on Christmas 1998. anything happened Eve, And then she told her mother about Q. Christmas 1998. Eve, 1998, on New Years correct? something happened *14 Yes. A. All And she indicates and then she indicates
Q. then right. or the next correct? evening day, she told mother 532 Yeah, I
A. think so. This line of was centered on S.M.’s statements questioning 1998, on that she was first Christmas Eve of raped by Appellant on New Eve of It line Year’s 1998. was after this again, only occurred that the trial court allowed the State to ask questioning about events of those two specific dayá.
The State that it had the to elicit this argues right appeal to in order S.M.’s and statements hearsay testimony, put Maggie’s fact, a into context. In similar issue was addressed in a concurring in Gordon v. 326 Ark. 91 opinion (1996), S.W.2d which involved a discussion the rule that once regarding party evidence, has the door to inadmissable opened opposing party treatise, Evidence, can do likewise. on the Relying part Jones the concurrence stated: inadmissible, Evidence that is irrelevant or otherwise if offered instance, first by party may become admissible properly rebut to or evidence offered another explain party. Fishman, Criminal, 11:34, Clifford S. onEvidenceCiviland § Jones (7th at 352 Ed. 1994). This is known as rule of verbal complete- 11:35; ness. Id. at 355. The treatise p. on to state that while goes § this, one (Ohio) state would not permit better view ... is that the “rule permits completeness” [t]he introduction of otherwise inadmissible evidence for the limited other, or purposes explaining already admitted evi- putting dence, context, into avoidingmisleading jury. Id. at 11:39, 931 S.W.2d onEvidenceat (citing Jones 370) p. § (Brown, J., concurring).
This rule of verbal the State’s con- completeness supports it tention that had the to about right S.M.’s pursue questions statements, because had been Appellant picking choosing parts of the statements use to The State question Harper. had the for the what S.M. told right clarify her mother had jury occurred on Christmas Eve and New Year’s Eve. The colloquy between counsel and Detective Appellant’s could have left Harper occurred, a mistaken about what impression on New particularly Year’s Eve. This court has that where defense counsel recognized the door to opens fairness dictates that the hearsay testimony, be allowed the area explore inquiry clarify any
533
in the
that
have
jury’s
may
lingered
confusion misapprehension
State,
485, 879
405 (1994).
317 Ark.
S.W.2d
v.
minds. Cooper
that the trial court
if I
with the majority
even
Finally,
agreed
to be admitted
this
testimony
error
allowing
hearsay
committed
does not
trial,
error would be harmless and
I believe such
the
It is axiomatic that
conviction.
warrant reversal Appellant’s
victim satisfies
substantial-evidence
the rape
testimony
State,
112,
351 Ark.
90 S.W.3d
case. Clemv.
in rape
requirement
180,
State,
A similar result was
Gage
court held that even an error of