*1
v. STATE of Arkansas
Stacey Eugene JOHNSON
CR 98-743
Supreme delivered October Opinion denied November 2000. * rehearing [Petition ] grant. * Brown, would J., *3 for Rosenzweig, appellant.
Jeff Gen., Gowen, R. Ass’t Mark by: Jr., Att’y Pryor, Att’y James Gen., Gen., and Michael C. Ass’t Att’y appellee. Angel, In W.h. "Dub" ArnoldChief Justice. murder was convicted of capital Stacey Eugene Johnson He in the death of Carol Heath. Circuit Court Sevier County Ark. death. In was sentenced to Johnson I, this Court referred to as hereinafter (1996), S.W.2d 179 court had trial reversed his conviction ground *4 made statement an out-of-court allegedly admitted improperly victim, Heath, in which Ashley Ashley daughter six-year-old murder of her mother and she had witnessed the purported claimed Heath had been found as the murderer. to Ashley identify appellant trial. at that testify incompetent venue in Pike held in November 1997 County,
A retrial was was found com- In this Heath been having changed. sentenced and did again to testify testify. Appellant petent the instant conviction and sentence death. It is from that reversal, which bases for raises is brought. multiple appeal Appellant as follows: are the records access to erred in
1) denying The trial court Johnson conducted treatment of the child witness examination and trial; after the first 2) The trial court erred in introduction of permitting victim- evidence; impact 3) The trial court erred in denying right present offense; evidence that another have committed the person may 4) trial erred in court introduction of the permitting child’s statements; out-of-court 5) The trial court should have statements. suppressedJohnson’s with We that the trial court erred and affirm disagree of conviction and death sentence judgment imposed. Heath was murdered in Carol her brutally duplex apartment 1, 1993, on either the DeQueen or the night morn- April early beaten, hours of 1993. She was ing and had her April strangled, children, six, throat slit while her two and young Ashley, age two, were home. The facts Jonathan, murder and age regarding its aftermath are and trial At gleaned pretrial testimony. 2, 1993, 6:45 a.m. on Rose the vic- approximately April Cassidy, sister-in-law, tim’s knocked on the victim’s door but did not receive unlocked, an answer. Because the door was she entered and found Carol Heath’s nude on the body room floor in partially lying living of blood. She ran across the street to call the pool then police returned to check on her niece (Ashley) nephew (Jonathan), whom she saw out the bedroom looking window. testified Cassidy that she asked what had happened. Ashley responded, in, who, had broke and I according Cassidy: said “[SJomebody and she said a man.” The [bjlack victim was white. (Ashley) Keith Tucker of the Police
Sergeant DeQueen Department testified that he found Carol Heath’s nude for a t-shirt body except that had been around her neck. He pushed stated her up body was located between a couch which was tilted on its back up legs and a coffee table which had been moved toward the apparently middle of the room. DeQueen Chief of Police Smith arrived James at the later. He testified that when he apartment the t-shirt pulled neck, from the victim’s he saw that away her throat had been slashed. Peretti,
Dr. Frank an associate medical examiner for the State Crime testified that Carol Heath’s death was Laboratory, caused by neck, head cutting blunt-force He strangulation, injuries. *5 stated that her attacker left a four-inch cut two-inch wound on her neck that went inch into her He observed one-quarter spine. face, and abrasions on her head and that she had several bruises and arms consistent with she had hands defensive injuries wounds, mark on the of her that she had a bite breast nipple right breast, and that there and an abrasion on her left was a one-quarter- inch contusion on her labia minora. Dr. Peretti could not right conclude, evidence, based on the that she had been either physical assaulted or sexually raped. Officer a criminal with the Behling, investigator James Police testified that he observed a
DeQueen Department, pair next to Carol Heath’s He noted an area of panties right thigh. between and around the and below the lighter-colored liquid legs area of the victim. An douche bottle and an genital empty empty condom box were found in the sink. bathroom “Lifestyles” 5, 1993, On Kenneth found a in the woods April Bryan purse between and Horatio which he later realized DeQueen belonged the victim. He took Officer to the location. Officer Behling shirt, examined area and found a Behling bloody pullover green t-shirt, Sakevicius, a white and a towel. Lisa an bloody bloody section, with the State Crime trace evidence expert Laboratory’s testified that hairs similar to the victim’s hair were microscopically found on all three of items. testified that these She further hairs breast, retrieved from under the victim’s left the floor victim, and from the white t-shirt were of origin. Negroid Jane Parsons, a forensic testified for the that no State semen serologist, was found in connection with the victim. admitted that She of semen would be if the used a finding unlikely, perpetrator condom and douched the victim. Weber,
DNA evidence was introduced at trial. Melisa a staff molecular at conducted a Cellmark Restric- biologist Diagnostics, tion test on the Fragment Length Polymorphism green [RFLP] shirt for the State and testified to a reasonable of scien- degree tific matched that of Heath. blood Carol She also certainty conducted a Reaction on several Chain test Polymerase [PCR] items, the white t-shirt found in the butt including park, cigarette shirt, found and hairs taken from the of Carol green body Heath and near to where the was located. With to the body respect t-shirt, white Weber testified that victim could not be excluded that the DNA as source of the blood and of this probability 12,000. was 1 in come from another Caucasian With having *6 hairs, butt and Weber opined respect cigarette Johnson excluded and that the that another Afri- could not be probability was the donor of the DNA in was 1 in 250. can-American question McWhirter, an with the Arkansas Officer Hayes investigator Heath, Police, talked the victim’s on State with daughter, Ashley the afternoon of 1993. Also at the time was present April Emerson, Human with Cynthia supervisor Department Services. Officer McWhirter made notes from following and used these notes to refer to when he testified at conversation and at trial: pretrial hearings stated her mother and I were on the couch when someone Ashley knocked on the door. She the door. The got up opened came in Stacey Johnson, No. one that the door.1 picture looked at six different of black males. Mother likes pictures Branson. He works at In Your Ear. The black male asked where Branson was. The black male used a name. He had girl sounding a black hat with in the on down back. He had something hanging and sweater. on a shirt When were the black green they talking, male said he had out of The black male was mad at just got jail. times, mother for Branson. He had been over two other dating but it was a while or a time male had as long ago. black about much hair I as saw them Then I saw fighting. [McWhirter]. mother on the floor. I saw the male leave and he laying black got truck, and he in a brown I think. I saw a knife and a up got gun. The brown truck was beside house. Mother looked out parked knocked, the window. When he let him then she in. While floor, mother was on the the black male walked into the laying in the bathroom. We were closet. I came out the door to hiding the bathroom and the black male had a knife in his hand beside left, She was on the he I went in mommy. floor After bleeding. and saw momma looked at twice. bleeding. mommy Jonathan She was covered in blood. We went and then to bed this morning door, when knocked I someone was scared to open screamed, I knew door. When Rose she saw with mommy blood male, all over her. time I saw the black he had Every clothes on. Officer McWhirter testified that he handed a stack seven and she out of the twice. photographs, picked photo lineup Johnson was arrested in New Mexico. subsequently Albuquerque, Johnson objection This-statement was the basis of the reversal of I. However, no made to statement at the second trial in such this matter. appellant’s
I. and Waiver. Privilege matter, Prior to the first trial in this child eyewitness Ashley Heath had waived the psychotherapist/patient privilege, thereby the defense access to the records obtained allowing through time, *7 her at the However, Dr. Carnelle Barnes. psychotherapist conviction, to the reversal of the first and to retrial subsequent prior matter, of the Smith, Heath obtained a new Ashley for therapist, Jill the emotional condition purpose treating on her brought trial, mother’s death. At the second ad litem Ashley’s attorney asserted the behalf, on psychotherapist/patient Ashley’s access to defense of thereby denying records of any any therapy she received to the first trial. subsequent records, moved for access to these
Appellant contending such was for him to discovery necessary his adequately present motion, defense. The trial court denied that said appellant’s ruling information was asserts that the privileged. refusal of the Appellant trial court to access to this evidence denied him permit his to right his defense present him of the depriving tools: ability
a) to challenge witness’s at the competency competency
hearing; b) to challenge her competency and before the veracity both jury, in cross-examination evi- presentation impeachment dence; and c) to make an demonstration of adequate the need for accessto
defense expert.
We disagree.
The child was deemed as a at witness the first incompetent trial because the court was unable to even her into the court- get room, much less conduct a to test her hearing competency by her asking her questions, directly, regarding ability appreciate the truth court, on witness telling stand. The trial in the first trial, relied Barnes, of Dr. Carnelle heavily who testimony testified at the about the competency trauma hearing psychological had and what further Ashley trauma she would experienced experi- ence if she were compelled testify.
Due to Ashley’s as a witness at that unavailability competency the trial court hearing, based its determination that Ashley on Dr. incompetent testify Barnes’s and the testimony prosecu- tor’s statements to the court that would not answer Ashley any for the of that questions purposes was deemed hearing. Ashley and Dr. Further, Barnes’srecords were made incompetent available. had and indeed did every cross-examine opportunity Dr. Barnes both issues of Heath’s heavily regarding competency as well as her veracity. case,
The defense had
in this
to the second
prior
to cross-examine the child herself at the
opportunity
compe
as the child u>as
and available
tency hearing,
present
questioning
discretion,
at that time. The trial
in his
deemed
to be
judge,
at the second trial based on her
competent
availability
willing
ness to be
for the
and her
present
demonstration to the
hearing
court of an
of the
understanding
oath and the
obligation
of false
as well
consequences
as
swearing,
transmit to
capacity
the factfinder a reasonable statement of what was seen or heard. See
290 Ark.
Next, although information could be sought certainly deemed relevantfor purposes witness’s challenging veracity both in cross-examination and in presentation impeachment evidence, the is whether the question records were admissible. The trial court found that it was not admissible because it was privileged under Ark. R. Evid. 503. contends that Appellant because the witness had waived psychotherapist/patient privilege prior the first then the is forever waived and privilege the witness not now claim the may The further privilege. contends that the witness’sassertion of the interfered with privilege his right defense at present trial. We hold complete these arguments be without merit for the reasons. following
Ark. R. Evid. 503(b) states: (1999)
A has a to refuse to disclose and patient privilege to prevent any other his medical person disclosing records or confidential communications made for the purpose diagnosisor treatment of condition, his mental or emotional physical, alcohol including or addiction, himself, drug among or physician psychotherapist, who are in the persons or participating diagnosis treatment under the direction of the or physician mem- psychotherapist, including bers of the patient’s family.
The
cases,
in both criminal and
foregoing
civil
privilege applies
e.g.,
State,
Baker v.
276 Ark.
pursuant
503(d)(3)(A)
emotional condi
Ashley’s
tion
However,
was an element of her claim or defense.
Rule
503(d)(3)(A)
clearly
is
anticipates
inapplicable
as to a
to a
only
who
party
his or her own
proceeding
brings
mental, or emotional
physical,
condition into issue. See Cavin v.
313 Ark.
The
further
that because the
appellant
argues
privilege
waived
the witness at the first
it must be deemed “waived”
at the second trial. This Court has
held that waiver
the
of
long
in one
does not
privilege
constitute waiver of the
proceeding
privi
at
See
lege
Co. v Malo
subsequent proceedings.
Maryland Casualty
119 Ark.
From the holding Maloney, at a the subsequent proceeding entitled to assert is privilege patient material, a new a with body then to disclosed patient as previously all, After the the also assert material may privilege. privileged the not the between psychotherapist, exists patient privilege in The facts and an issuein the case. present between patient than as on this Maloney, case are even stronger point the instant case, that the records of in this being disclosed material previously Barnes, trial and were not made availableat second Dr. were still of material from the the new body to be only asserted privileged; and not to be was asserted the witness privileged new therapist to disclosure. subject retrial, trial and his first
Between appellant’s thus a new set of a creating Heath obtained new psychotherapist, Indeed, in and communications. light records privileged therapy ruled that the records the trial court could have properly Maloney, to the trial were subject made to the privilege prior appellant’sfirst benefit, However, it to the at retrial as well. appellant’s applied created after his first trial. Clearly, to the material only privilege not error. this was the holding Maloney, applying which, taken several further makes arguments inter- that the assertion essentially allege together, defense. fered with his Specifically, right present complete evi- material was admissible contends that the privileged witness, bias, that the mate- or interest of the dence of knowledge, under Ark. R. Crim. P. 17.1 17.4 (1999), rial was discoverable his defense and that the constitutional superseded right present Con- Heath’s privilege. right psychotherapist/patient however, it has been established trary arguments, appellant’s all admissible evidence. the need to discover said privilege preempts established in The United States Court Supreme Jaffee Redmond, (1996), privi 518 U.S. psychotherapist/patient need to access to the to the gain privileged lege paramount *10 There, material for the evidentiary Court stated the purposes. following: from the rule
Exceptions general testimonial disfavoring privileges be ... may justified aby public the good transcending normally all predominant principle rational means for utilizing ascertain- truth. Guided these ing the we principles, question address is whether a today privilege protecting confidential communica- tions between a and her psychotherapist patient promotes suffi- interests ciently important outweigh need for probative evidence .... Both reason and experience us that it persuade does In contrast to the significant public private interests supporting recognition privilege, likely benefit that evidentiary would result from the denial of the is privilege modest. If the were privilege rejected, confidential conversations between psy- chilled, and their chotherapists would be patients surely particularly when it is obvious that the circumstances that rise to the give need for treatment will probably result in litigation. Without a privi- much of the lege, desirable evidence to which . . . seek litigants access ... is unlikely to come into This being. “evi- unspoken dence” will therefore serve no greater function than truth-seeking if it had been spoken privileged. 9-10, Id. at 11-12 (citations and quotations omitted). Although decision in it acknowledged privilege, soundly Jaffee federal such rejected as the arguments contention that appellant’s present his constitutional a defense right present supersedes psycho- states therapist/patient privilege. that the explicitly privilege Jaffee more than “the need for important evidence.” Id. at 9-10. probative appellant argues Ashley’s records psychotherapy were discoverable to Ark. R. Crim. P. 17.1 and pursuant 17.4 and However, Brady U.S. 83 Maryland, (1963). that argument that the State had access to presupposes or of the records knowledge and their contents. Ark. Rule Crim. P. 17.1 on the places duty State to disclose to the defense relevant or material exculpatory “which control, is or come within may or knowl possession, [its] ” Here, edge^] has not shown that the State had access fact, to the records In sought. assertion of her Ashley’s would have disclosure to the State as well precluded as to In the absence a appellant. that the showing by *11 records, hold that no violation to the we Brady State had access occurred. to lend to his the arguments
Finally, appellant attempts support the contentsof the records. This reference privileged by referring to the of Rule will not be considered. According plain language treatment and made the course of not records during falling are under of the enumerated to absolute subject one exceptions to theircontent. As the can not claim without appellant regard treatment, in the that the records were not made course of his content is irrelevant to the determination of this references to their case. short,
In Heath’s records were not psychotherapy at the relevant for a determination of her to testify competency second trial and were to the subject psychotherapist/patient privi did not waive the because she had waived she lege; privilege simply trial; it in and the the the first privilege outweighs appellant’s right Therefore, a defense. we hold that the trial court’s present the decision to access to these records was deny proper appellant and shall be affirmed.
II. evidence. Victim-impact next For his asserts that the trial point appeal, appellant court erred in his to Warren Eckert’s victim- overruling objection the victim’s activities. The impact testimony regarding religious that, also contends no was made at objection appellant although trial, Pullen should not have been allowed to read into Carolyn evidence the statement of Heath. the Finally, that the introduction of evidence in the sen- argues victim-impact his trial “violated ex tencing phase prohibitions against postfacto evidence.” The State contends that the appellant’s victim-impact barred, are or are without merit. We arguments alternatively, agree with the State and affirm the trial court on this as well. point,
A. WarrenEckert. Testimonyof elicited State During sentencing phase from Warren Eckert. In to a victim-impact testimony response to Mr. Eckert State victim’s question regarding posed activities, stated, Honor, “Your I religious simply introduction with The trial court over- object any religion.” ruled the Mr. Eckert to Ms. objection, allowing testify regarding Heath’s involvement her church. Mr. Eckert’s subse- During conference, testimony, bench quent appellant requested where he made following objection: Honor, I
Your entire line of object testimony. this This is not under circumstances. It’s permissible any not an cir- aggravating cumstance statuteand its not a any statement victim-impact [sic] law. This is him just telling about the victim and jury *12 tacticsand such. discussion,
After a brief the trial court overruled the again Mr. then Eckert testified that Ms. Heath appellant’s objection. rode church with her children on regularly the church bus and that she had volunteered to substitute for an absent Bible class teacher on than one more occasion. now contends that the trial court appellant erred
when it Mr. allowed Eckert to about Ms. Heath’s testify religious activities because such evidence was irrelevant under Ark. R. Evid. 401, 402, and 403 (1999) inadmissible to Ark. R. pursuant However, Evid. 610 did (1999). not make appellant specific that he below now advances. It settled arguments is well this Court that are bound on nature of parties appeal by scope State, 258, 264, their at trial. v. 334 Ark. 975 objections E.g., Ayers 88, S.W.2d 91 (1998). Because on appellant’s arguments appeal exceed and nature of his at clearly his scope objections in this are arguments barred. regard
B. Pullen’s statement. Carolyn readingof next the court erred when it asserts Appellant allowed a statement to be read into evidence. hearsay purported However, the admits first that he failed to to this appellant object statement at This not trial. Court will reverse in the absence of an in the trial court. objection appropriate contemporaneous E.g., State, 390, v. Ark. 449 340 10 S.W.3d there (2000). Although Jones rule, are four narrow to the exceptions contemporaneous-objection State, 631, 640, v. 327 Ark. 940 S.W.2d e.g. Camargo in and the none are this failure (1997), regard, applicable appellant’s review. object appellate precludes Moreover, has failed to offer or any argument appellant in in of his of error this authority assignment support regard. Because of error assignments unsupported by convincing argument or will considered not be on Williams authority apposite e.g., appeal, State, v. 329 Ark. 946 S.W.2d in (1997), this appellant’spoint barred this Court’s consideration. regard
C. Ex facto evidence. post evidence, final For his argument regarding victim-impact asserts that the ex clause of the United States postfacto and Arkansas constitutions the use of evi precluded victim-impact dence at trial because Ark. Ann. Code 5-4-602 (4) (Repl. 1997) § was enacted after Ms. but Heath’s murder to the prior appellant’s However, trial. failed to to the appellant admittedly victim- object trial; such, on is, this at as this impact testimony ground argument likewise, barred See appeal. Ayers supra.
Moreover, this Court
this
previously rejected
argument
I; therefore,
law-of-the-case
doctrine
*13
I,
450,
further review.
precludes
326 Ark.
934 S.W.2d at
Johnson
State,
105,
189. In
v.
337 Ark.
The law-of-the-case doctrine
ordinarily arises
the case of a
second
and
appeal
that matters decided in the
requires
first appeal
be considered concluded. The doctrine is not inflexible and does
error,
not absolutely
correction of
preclude
but it
an
prevents
issue
raised in a prior
from
appeal
being raised in a subsequent appeal
unless the evidence
varies
materially
between the two appeals.
109-10,
permissible the the General Assem during penalty phase, has not bly the or added a new expanded scope punishment Therefore, circumstance. we held aggravating that this permitting Here, did not constitute an testimony ex law. the post appellant facto reasserts his ex clause to the admission of victim- post challenge facto
201 Yet, no in the there have been substantive evidence. changes impact the between variances in evidence the nor material appellants law Therefore, the doctrine this law-of-the-case first appeal. appeal of this review argument. precludes have committed Evidencethat another III. person may offense. that his on contends For third appellant point appeal, it to allow him to introduce the court erred when refused trial of Branson of Cordelia ex-wife as Ramsey, testimony Vinyard, Heath. The evidence murdered Ms. evidence that Ramsey bite at trial showed that Ms. Heath had marks her adduced Further, elicited Dr. Carnelle testimony breasts. Barnes, seen Heath have may Ramsey indicating at Ms. Heath’s home on the the murder. together night evidence, introduce Viny- Based on that appellant attempted her, had abused ard’s Ramsey including testimony physically breast, while the two were married. trial court biting Ms. and the now refused allow Vinyard testify, that ruling. challenges with wide
It is well settled that a trial court vested evidence, this will reverse in discretion in Court not admitting State, an of that discretion. Ward v. the absence of abuse E.g., In admissibility Ark. 1 S.W.3d (1999). addressing crime, this Court a third committed evidence that party particular as has held follows: to show that tending
A defendant
introduce evidence
may
charged,
than the defendant committed
crime
someone other
evidence is
unless it
points directly
but such
inadmissible
which does no more than createan
of the third
Evidence
guilt
party.
as to
is inadmissible.
conjecture
or
another’sguilt
inference
70, 75,
852 S.W.2d
323 (1993)
Ark.
Zinger
Wilson,
Zinger,
(quoting People
The have intro Vinyard’s appellant sought testimony duced for the had Ramsey bitten previously purpose proving her breast. Ms. Heath’s revealed that she had bite Although autopsy breast, on her had marks fact that bitten on a Ramsey Vinyard occasion created at an most only previous Ramsey’s guilt. inference Indeed, it is untenable to assert that Vinyard’s testimony directly Heath, in the murder of Ms. which is Ramsey implicated evidence of a third admitting any prerequisite party’s guilt. the trial court did not abuse its Clearly, discretion in refusing allow Ms. Vinyard’s testimony.
IV Introduction statements. of out-of-court For his fourth contends point appeal, appellant that the trial court State introduce erroneously permitted Heath’s statement McWhirter and Hayes Emer Cynthia However, son as an excited utterance. is appellant’s allegation barred from again review it because appellate unsupported by or argument has not included in authority. his brief or any argument for his contention that legal support statement was and did not fit hearsay under excited-utterance exception to the Instead, rule. hearsay makes the bare assertion that the statement in question evidence and impermissible hearsay did not constitute an excited utterance. That assertion alone is insufficient. however,
More this issue also is importandy, precluded review it There, because was decided appellate in I. in Johnson to the response appellant’s argument statement to Ashley’s McWhirter and Emerson was this Court held that we do hearsay, not view the statement made more than nine hours after her mother’s body was discovered and she was removed from the as inconsistent apartment with the spontaneity impulsiveness associated with an I, excited utterance. 326 Ark. at S.W.2d at 185. Again, law-of-the-case doctrine precludes review of issues concluded a unless there has prior been an appeal material in the evidence. See intervening change Camargo, supra.
203 in the evidence. Recog- Here, has been no such change there con- to fact, makes an attempt unpersuasive appellant nizing review doctrine and the law-of-the-case this Court ignore vince to do so. decline We this issue again. statements.
V. Suppression appellant’s that the asserts his final appellant For point appeal, However, the his confession. have should trial court suppressed for is not his preserved appellate admits that argument appellant Therefore, 37 retrial or a Rule hearing.” “must await review and reversal, and this Court for does not argue because error, Ark. 956 see Green reverse for will not plain court erred in that the trial it cannot be held (1997), S.W.2d confession. appellant’s refusing suppress
VI. Rule Compliance. 4-3(h) error been reviewed for pursuant record has prejudicial The errors were found. and no reversible (h), Ct. R. 4-3 Ark. Sup. reasons, affirm the conviction above we hereby all of the For on the Stacey Eugene and death sentence murder. of capital charge
Affirmed. dissent. and JJ., Thornton,
Brown, Imber, The issue dissenting. pivotal Justice, Brown, Robert L. medical death case is the waiver privilege in this Barnes’s records Dr. Carnelle ad litemfor by Ashley’s guardian of a to the records waiver extended whether this testimony facts, that the I conclude Under these Smith. second therapist, Jill be to allow would The alternative does to Smith. waiver apply and choose which therapist State pick Ashley’sguardian a less favorable therapist at trial and be most prevent will helpful witness and State key guardian from testifying. of the medical the waiver to use not be State should permitted and as a of one therapist to allow the testimony as a sword was done at That is what another. that of shield to prevent reason, second trial of and for that I Johnson, Stacey respectfully *16 dissent. 1994,
Prior to the first trial
ad
litem
guardian
for Ashley
Barnes,
waived the medical
Dr. Carnelle
a
privilege
psycholo
to
At
her
gist,
Dr.
permitted
testify.
competency hearing,
testified that
Barnes
would suffer mental
if she were
Ashley
damage
to
also
She
testified that
could
accu
compelled
testify.
Ashley
not
recall what
a
and that there was
rately
year
a
happened
ago
strong
her
was contaminated and diluted
possibility
what she
memory
had heard and
her dreams. She further stated that
was
Ashley
on the truth and
different stories. Based on Dr.
embellishing
telling
Barnes’s
and that of the
testimony
trial court ruled
prosecutor,
The
went
Ashley
testify.
to trial with a
incompetent
prosecutor
witnesses who told the
what
battery
hearsay
had told
jury
Ashley
them the
of the murder.
was
day
convicted and sentenced
Johnson
to death. This court reversed that
in 1996 and remanded
judgment
for a new trial
because
unreliable hearsay testimony stemming
from
selection of
Ashley’s
photo lineup.
Johnson
430,
Ark.
Ashley began seeing Smith of the South- therapist, Jill west Center, Arkansas and Mental Health Counseling on Novem- ber 1996. Her treatment lasted the second trial which through took in November 1997 and until place 1998. The up April ad litem refused guardian to waive the medical for Smith Indeed, over defense counsel’s strong defense objection. counsel retrial, even Smith for the but the trial subpoenaed court quashed based on the The subpoena result was that privilege. Johnson’s counsel was denied access evaluations, to Smith’s record and while Dr. Barnes was allowed to at the second again trial. testify was the Smith
Why information so critical? The short answer is that the called as a prosecution only Ashley witness at the compe- before the second tency hearing and the trial court deemed Had competent testify. defense counsel been privy Jill records, Smith’s he would have been able to delve into Smith’s conclusions stories were Ashley’s inconsistent and profoundly that she had been under considerable from her pressure family to convict A prosecutor Stacey Smith’s sampling Johnson. notations after sessions with before the therapy second trial Ashley reveals the following:
(cid:127) can him behind one who only “keep DA she’s the says
bars.” (cid:127) mem- is other says parroting family of what Ashley So much “I’m the one who can only put she example, says,
bers. For bars.” him behind
(cid:127) “has to him behind keep she Ashley told Her grandmother
bars,” he’ll to kill next. if he out gets try because (cid:127) how much responsibility grandmother emphasized Her overturned, her, is will feel if sentence Johnson’s total responsibility. (cid:127) she Atty to elaborate on what saw. Ashley kept wanting has that she to her that all she saw say
emphasized Jason *17 mom, murder (sic) period.1 records, counsel denied access to Smith’s defense Because he was and bias and cross-examine duress was unable to confront less and much due to considerable pressure, family prosecutorial due to inconsistent stories. her unreliability emphasize Yet short shrift to the waiver issue. The opinion majority gives the Rule of the that issue crux of 510 appeal. represents Johnson’s Arkansas of Evidence Rules provides: rules a disclo- against A whom these confer person upon privilege the if he or his while holder sure waives privilege predecessor or of any the discloses consents disclosure voluntarily privilege does if matter. This rule not apply significant part privileged the itself disclosure is privileged. the endorses the State’s its majority position
By opinion able to and choose which should be pick therapist Ashley’s guardian made to the defense. That should not and be available will testify reason that if waives the be. It stands to Ashley’s guardian privilege to a that waiver should successive for one apply key psychotherapist, her mother’s savage who also treated her with cope therapist Here, was in the second trial. the defense thwarted murder before Smith, had the the who conducted its to review records quest Jill 1 under acknowledge that these Smith were submitted this court I notations Jill made judgment of the Smith records should have been in these Nevertheless, seal. my parts in for the reasons stated dissent. available to counsel my Johnson’s who, more recent sessions with without therapy ques- tion, have had better would of her current mental state. grasp
The sole
cited
for the State’s
support
majority
unique
is a 1915 civil case in which the issue was the
position
disclosure of
information at retrial. See
v. Malo
privileged
Co.
Maryland Casualty
434,
119 Ark.
This court has of a waiver upheld two recent State, cases. v. See 338 Ark. Dansby S.W.3d 403 (1999) waived husband-wife (Dansby privilege by communicating privi- matter to a third leged 332 Ark. party); Anthony S.W.2d 552 (1009) (defendant waived her self- privilege against incrimination on the matter at the first testifying trial and her prior testimony admissible at retrial even though defendant *18 invoked her to silence at the right trial). second Certainly, rationale should extend Anthony the waiver to second Ashley’s psy- to retrial. chotherapist prior it
Nor can
be
that
error in
argued
any
Smith’s
excluding Jill
records was harmless error
a reasonable
beyond
doubt. See Chapman
v. State
Some jurisdictions have
weighed
confidentiality
information
privileged
against
cross-examine the
right
credi-
of a State witness to
bility
decide which
should
even
policy
yield,
when
See,
no waiver is involved.
v. State,
e.g.,
207 State, 357, 256 S.E.2d Bobov. Ga. 349 1996); Ct. Crim. (Ala. App. McBride, 255, 517 152 v. 213 A.2d Super. State (1986); N.J. McBride, held Court the New Jersey In (1986). Superior be defeated when common may privilege psychologist-patient least limited of at disclosure of fairness clearly notions compel information. in a where of And case waiver confidential otherwise tool, the and a was involved used as strategic Washing- the privilege had this ton Court of say: Appeals must two a rale for we jurisdiction weigh In this adopting hand, the reason behind very On the one varying public policies. of is to create an atmosphere relationship physician-patient otherwise, medical the law were many needing confidence. If they fear that what told untreated for might go attention hand, the other if a remain confidential. On doctor not might between witnesses is allowed to and choose pick physician patient can, of impeaching testimony and claim privilege, prevent court, be made of mockery might justice. disclosed to the a being Tradewell, 821, 824, 515 v. P.2d 174 (1973). State Wash. App. what in the case That occurred “picking choosing” exactly before us. of be waiver a must privilege extent
Certainly any an basis for abuse reviewed this court on case-by-case Storlazzi, v. State 191 Conn. discretion. v. See supra; Schaefer case, this the waiver of the But in 464 A.2d (1983). it for and then the assertion of Smith for Dr. Barnes Jill Here, the trial court seem a matter of trial appar- largely strategy. an of Smith’s records for conducted in camerareview mitigat- ently then McBride, But the court evidence. See State ing supra. excluded in their That ordered that Smith’s records be entirety. Jill these I can in Under facts was an abuse of discretion my opinion. in his cross-examination conclude hamstrung only and, thus, was denied his defense in his general trial. a fair right Thornton,
Imber JJ„ join.