Thе appellant, William Hinzman, was found guilty of raping his eleven-year-old stepdaughter, M.P., in violation of Ark. Code Ann. § 5-14-103(3) (Repl. 1993). As a result of the jury’s verdict, he was sentenced to twenty years in the Arkansas Department of Correction. Appellant raises three issues in this appeal. He contends that: (1) the trial court erred by permitting improper impeachment of M.P. with a prior inconsistent statement; (2) the trial court erred in allowing the testimony of two persons who were not previously identified as witnesses; and (3) the trial court erred in denying his motion for a directed verdict because the State failed to offer adequate proof to corroborate his confessions. Because we find merit in the first issue raised, we reverse and remand for a new trial.
As his third point, appellant contends that the trial court erred in denying his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Young v. State,
In August of 1993, M.P. reported to her mother, appellant’s wife, that she was being molested by appellant. M.P moved with her mother out of the home they shared with appellant, and the local authorities were notified of M.P.’s accusations. On September 15, 1993, appellant was interviewed by Lieutenant David Smith of the Saline County Sheriff’s Department. Appellant gave a recorded statement in which he confessed to committing acts of deviate sexual activity with the child. In summary, he described incidents of touching, fondling and the mutual performance of oral sex. Appellant also admitted that he had shown the child a sexually explicit video as a demonstration of “what I wanted her to do.” A transcript of the statement was introduced into evidence by the State at appellant’s trial.
Appellant attended two counselling sessions with Dr. William G. Grambling, the first in the company of his wife, and the second in the presence of both his wife and M.P.’s natural father, Jim Price. At trial, Dr. Grambling testified that at the first session he explained to appellant and his wife that, although his primary responsibility was toward the child, he would also work with them, but that he expected the truth to be told. He said that he sent appellant’s wife out of the room and that appellant looked at him and said, “I did it.” He said that appellant’s confession was discussed with his wife when she returned to the room. Dr. Grambling also testified that appellant admitted what he had dоne in the session attended by Jim Price. Mr. Price confirmed this in his testimony. He said that appellant admitted that he had engaged in oral intercourse with M.P. on four occasions and that appellant related that he had educated the child by showing her an “X-rated” video program.
Appellant contends that there was no evidence introduced by the State tо corroborate the various confessions made by him. We cannot agree.
Unless made in open court, a defendant’s confession standing alone will not support a conviction except where “accompanied by other proof that the offense was committed.” Ark. Code Ann. § 16-89-lll(d) (1987). This requirement for other proof, called the corpus dеlicti, mandates only that a showing be made that the offense occurred, and nothing more. Mills v. State,
Prior to trial, M.P. recanted her allegations of аbuse. The primary thrust of this appeal concerns the dual contentions that the trial court erred by permitting the State to call M.P. solely for the purpose of impeaching her testimony and by allowing the State to outline the substance of those statements during the impeachment process. Appellant contends that the probative value of thе State’s use of the statements was far outweighed by the danger of unfair prejudice.
The issue arose in this manner. Appellant filed a motion in limine informing the court that M.P. had disavowed her accusations of sexual misconduct perpetrated by appellant. For this reason, he asked the court to prohibit the State from calling her as a witness for the purpose of impeaching her testimony with the prior statements. The court addressed the motion in chambers before the beginning of trial. After M.P. was provided the opportunity to consult with an attorney, she told the court that she would testify that the statements she had made in the past were false. The trial court ruled that it would permit the State to call her as a witness fоr the purposes of establishing opportunity, timing and identity. The court further ruled that, if M.P. denied making the earlier statements, then it would allow the State to impeach her with her inconsistent statements. The court also offered to instruct the jury that it was to consider the statements only for the purpose of judging the child’s credibility, but not as substantive evidence.
When M.P. testified before the jury, she said that appellant had never touched her in an inappropriate manner, and she denied that he had ever engaged in oral sex with her. M.P. admitted that she had previously reported that appellant had done those things, but she said that her statements were not true. She explained that she had falsely accused the appellant in аnger over being punished for having told a lie. The trial court refused the State’s request to introduce into evidence the separate statements M.P had made to Officer Smith and a caseworker from the Saline County Department of Human Services. Over appellant’s multiple objections, the court permitted the State to question M.P. in detail and with speсificity regarding the statements she had made.
In deciding this issue, we observe a few general principles. Rule 613 of the Arkansas Rules of Evidence permits extrinsic evidence of prior inconsistent statements of a witness for the purpose of impeachment if the witness is afforded the opportunity to explain or deny the statement, and does not admit having madе it, and the other party is afforded the opportunity to interrogate the witness on that statement. Harris v. State,
As authority for his argument, appellant places much emphasis on our decision in Gross v. State, supra. In that case, the prosecution knew, as it did here, that its witness, who had once implicated both himself and the аppellant in the commission of a crime, would not testify in accordance with his earlier statement. The statement itself was not admitted into evidence, nor did the police officers who recorded the statement testify regarding it. However, the prosecution had been allowed to question the witness about the particulars of his prior inconsistent stаtement. In reversing, we held that the resolution of the issue was controlled by Rule 403 of the Arkansas Rules of Evidence, and we were persuaded that any advantage the prosecution may have gained by discrediting the witness was exceeded by the risk of prejudice resulting from disclosing to the jury the content of the statement.
In Gross v. State, we relied heavily on the deсision in Roberts v. State,
The State argues that asking Richard about his prior inconsistent statements was for impeachment purposes, but it was really a mere subterfuge. The only conceivable reason that the State could have for impeaching its own witness was to bring before the jury hearsay information not admissible as substantive evidence, hoping that the jury would accord it substantive value although it was clearly inаdmissible as such under Rule 801(d)(l)(i). In this instance the danger of convicting the defendant on unsworn testimony is too great; the limiting instruction to the jury directing them to consider the prior inconsistent statement for impeachment only was not a sufficient safeguard.
Id. at 552,
In a subsequent decision, Pemberton v. State,
Whatever the unfair prejudice may have been in that case, we do not find it here. The ruling in the Roberts case that the prior statement itself could not be quoted into evidence as part of the impeachment process was consistеnt with prior Arkansas cases, and indicated that the adoption of A.R.E. 613 had not presaged any change in that respect. However, if we meant to say there that the fact that a reference to, rather than a quotation of, a prior inconsistent statement was unfairly prejudicial because it came in the form of the state’s impeachment оf its own witness, we failed to take account of A.R.E. 607. That rule makes it clear that there no longer is a general prohibition against such impeachment.
Pemberton v. State, at 408-409,
With these decisions in mind, we conclude that the State’s use of the statements exceeded the parameters of proper impeachment. In questioning M.P., the prosecutor quoted from the statemеnts, line by line, in effect reciting the statements into the record. We must agree with appellant that this tactic allowed the State to accomplish through the back door that which it could not have achieved directly. As stated above, the statements were not admissible for purposes of impeachment since M.P. had admitted making them, and the statements were not admissible as substantive evidence because they were not made under oath. By proceeding in this manner, the danger was too great that the jury would accord the statements substantive value.
Whether or not the State should have been allowed to impeach M.P. by reference to the previous statement is another issue. As pointed out by thе supreme court in Pemberton v. State, supra, the impeachment of a party’s own witness is generally permitted under Rule 607 of the Arkansas Rules of Evidence. See also Chisum v. State,
As his last issue, appellant argues that the trial court erred by not excluding the testimony of Dr. Grambling and Jim Price, who were called by the State in light of M.P.’s disaffirmance of her previous statements. Appellant objected and requested а continuance, alleging a discovery violation because neither of them had been listed by the State as potential witnesses. The court allowed the State to present their testimony and initially denied appellant’s request for a continuance, but the court later altered its ruling by granting a three-week continuance after the witnesses had beеn examined. In granting the continuance, the trial court stated that it was doing so “out of an abundance of caution,” but that it did not feel that appellant had been surprised or prejudiced by the witnesses’s testimony. The court also stated that he would permit appellant further cross-examination of the witnesses and later, when trial resumed, the court stated thаt it would strike any part of the witnesses’s testimony which appellant showed to be objectionable.
Rule 17.1 of the Rules of Criminal Procedure requires the prosecution to give the names and addresses of witnesses it intends to call at trial, and Rule 19.2 imposes a continuing duty to disclose this information. The required notification must be accomplished in sufficient time to permit beneficial use by the defense. Robinson v. State,
Appellant’s claim of prejudice is based on the argument that the witnesses’ testimony was privileged under Rule 503 of the Rules of Civil Procedure, which sets out the psychotherapist-рatient privilege. Appellant’s claim of prejudice is misplaced in that the record reflects that the communications made by appellant in the counselling sessions were not “confidential.”
Rule 503(b) provides:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his ... confidential communications made for thе purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
A communicatiоn is “confidential” if it is not intended to be disclosed to third persons, except persons present to further the interest of the patient, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family. Ark. R. Evid. 503(a)(4).
Dr. Grambling testified that he explained to appellant that he would report his findings to the prosecuting attorney’s office and the Department of Human Services, and said that he did indeed make reports to both of those entities. Thus, it cannot be said that appellant can successfully claim that his communications during those sessions were privileged. In addition, the court allowed a lengthy continuance, permitted the opportunity for further cross-examination and stated its willingness to strike any part of the witnesses’s testimony that proved inadmissible. Although we agree with appellant that the better course would have been for the court to have allowed a continuance before the witnesses testified, we cannot say that the court’s action amounted to an abuse of discretion under these circumstances. See Caldwell v. State,
Reversed and remanded.