Edwin HOGGARD v. STATE of Arkansas
CR 82-25
Supreme Court of Arkansas
Opinion delivered October 4, 1982
Rehearing denied November 8, 1982.
640 S.W.2d 102
117
Stеve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
These charges were reported to the police by the boy‘s mother, and a search warrant was issued, producing an abundance of homosexual pornography, primarily of adolеscent boys. One of the two counts was dismissed and the jury convicted appellant on the remaining count, resulting in a sentence of ten years and a fine of $7,500.
Appellant raises numerous points for reversal, but we affirm the trial court.
I.
Appellant attacks the search warrant from several standpoints: first, that Arkansas’ obscenity statute,
Second, he challenges the nighttime search.
Appellant challenges the search warrant on the ground that the affiant did not appear before the issuing judicial officer as required, he argues, by
The argument that the affidavit does not establish the reliability of the witness under the two-fold test of Aguilar v. Texas, 378 U.S. 108 (1964), must also fail. There the Supreme Court rejected a search warrant which stated only that “affiants have received reliable information from a credible person and do believe that heroin [and other drugs] are being kept at the above premises for purposes of sale....” In contrast, this affidavit goes into detail in establishing the reliability of the witnesses and the basis of their knowledge. It reveals the identity of the informants, explains their association with the appellant, states when and where the contacts occurred, and gives specific details about the materials said to be kept on the premises and their location in appellant‘s apartment and in his pick-up truck. The affidavit is more like one upheld in U.S. v. Ventresca, 380 U.S. 102 (1965) than the one struck down in Aguilar. We find it to be sufficient, when viewed with common sense.
II.
Appellant charges error in the refusal to order a discovery deposition оf the young victim. The trial court did
We do not imply that there are never instances where due process may entitle a defendant to discovery rights, but we are unwilling to hold that due process invariably requires that an accused have the right to take the discovery deposition of the state‘s witnesses, including the victim. We prefer to leave the decision, as our
III.
During the interview session defense counsel asked the mother whom she had dated, which prompted the prosecut-
Whether
IV.
Next it is argued that the boy was not competent to testify. He was five years old when his contacts with the appellant began. Some of the alleged acts occurred after he became six. He was six and a half when the case was tried. Appellant concedes that some six year olds might be competent but he urges that this boy was unable to distinguish between fact and fantasy.
This court has consistently said no prеcise age of testimonial competency in children exists, and it is primarily for the trial court to determine whether a child has the ability to observe, remember and relate the truth of the matter being litigated and has a moral awareness of the duty to tell the truth. Harris v. State, 238 Ark. 780, 384 S.W.2d 477 (1964); Batchelor v. State, 217 Ark. 340, 230 S.W.2d 23 (1950); Payne v. State, 177 Ark. 413, 6 S.W.2d 832 (1926); Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949). The issue rests within the trial court‘s sound discretion. Guthrie v. State, 188 Ark. 1081, 70 S.W.2d 39 (1934), Batchelor v. State, supra, and we will not reverse on appeal in the absence of manifest abuse, Yother v. State, 167 Ark. 492, 268 S.W. 861 (1925).
V.
The state asked the mother on redirect if she had asked her son whether he had been shown any pornographic pictures. Defense counsel objected to the question as leading and moved for a mistrial, which the trial court judge denied with the comment that the question was not answered and no damage occurred. If any prejudice occurred, which is doubtful, it was not so great that we can say the trial could not properly continue. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1976).
VI.
Over appellant‘s objection the state was permitted to introduce a pamphlet entitled “Boy Scout Sex Manual” containing a number of photographs of boys engaged in sexual acts. Appellant contends the prejudicial effect of the exhibit greatly outweighed any probative value and it should have been excluded under Rules 608 and 403, Uniform Rules of Evidence. We readily agree the material was prejudicial, it could hardly be otherwise. But the
VII.
Appellant‘s next contention is that a defense motion for a directed verdict should have been granted because the statute as written does not include the acts described by the victim. The gist of the argument is, assuming the truth of the child‘s testimony, only the body of the accused was penetrated, i.e. the mouth of the appellant, and not the body of the victim. The argument is a throw-back to the definition of rape prior to the adoption of
On appeal, apрellant has amplified the grounds for his motion to include matters not presented to the trial court and consequently not subject to our review.
VIII.
Finally, appellant submits there was a comment on the evidence. We are not convinced. In closing argument the prosecuting attorney told the jury the date on the information was not an element of the offensе. Defense counsel
The judgment is affirmed.
PURTLE, J., dissents.
JOHN I. PURTLE, Justice, dissenting. I respectfully dissent because I think both the affidavit and search warrant are as phony as a $3 bill. I alsо feel the material presented to the jury was inflammatory and that its prejudicial effect drastically outweighed any relevant probative value that it may possibly have contained.
The affidavit for the search warrant, made by a deputy prosecuting attorney, stated that he was contacted by officer Hanna of the Fayetteville Police Department who gave him information concerning an alleged rape and/or carnal knowledge incident. The affidavit further stated that the alleged victim‘s mother stated certain things which her six year old son had told her. The six year old child, in my estimation from a review of the transcript, did not understand the meaning of an oath, and allegedly stated that appellant had taken “nude” pictures of him which he kept in various places around the premises. The child also stated that there were slides and magazines “depicting young boys in a nude state, some engaging in homosexual acts, including scenes with Hoggard.” This is rather mature language for a six year old who could not understand most of the questions and who stated he saw pink panthers running through his house. He allegedly said that the items, which were not described specifically, were in the appellant‘s room nearly every time he had visited there. It had been from two to six weeks since the alleged incident occurred. The
Rule 13.6 provides for the issuance and execution of search warrants for illegally possessing pictures and literature. However, private possession of obscene material is not illegal. According to the United States Supreme Court, an individual may possess material as obscene as he desires, so long as he does not display it to others or attempt some illegal use. United States v. Thirty-seven Photographs, 402 U.S. 363 (1971). The affidavit did not state how long the young boy had known the appellant but it did state that on almost every visit the boy made to appellant‘s room the material was present. There simply is nothing to support the allegation that the material was likely to be destroyed or moved before the next day. In fact, the indications on the face of this affidavit are that he would continue to hold this material in his possession. The rules state that only such materials as may be necessary “for evidentiary” use in a proceeding are to be sought. Ninety-nine percent of this mаterial was not even introduced into evidence. The other material had been presented to the judge and had possibly been displayed before the jury even though it was not introduced. The one book which was introduced was used by the state in the closing arguments. It depicted young males in acts of masturbation and other deviate sexual activities with which aрpellant was not charged. The only
We are not here dealing with the guilt or innocence of the appellant. That is not the issue before this court. Although he might have been found guilty in a properly conducted trial, he should not be found guilty in a trial which violates his statutory and constitutional rights. I have no objection to the punishment and consider it appropriate upon one having been given a fair trial and properly convicted by a jury. My objections in this case primarily relate to the affidavit and search warrant, which I find woefully inadequate, and to the competency of the six year old boy to testify. The principles of the Constitution hold us to high standards in allowing a search of an individual‘s residence. These standards simply wеre not met in this case. When the Constitution can be sidestepped in such a blatant manner as this, I think we must all fear for the sanctity of our homes. And as for the child‘s testimony, I cannot in good conscience find that a youngster of such tender age who admitted numerous fantasies to the court and who could not appreciate the meaning of an oath should be thе controlling factor in this case. It seems to me that the prosecution could have made a good case against the appellant without resorting to the tactics they used here. For these reasons, I must respectfully dissent.