Morris v. StateMorris v. State
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Thе appellant in this criminal case was charged with arson after the fire which destroyed her home was investigated by insurance representatives, the Pulaski County Sheriffs Department, and the Arkansas State Police. After a jury trial, she was convicted of that charge and sentenced to seven years in the Arkansas Department of Correction. From that conviction, comes this appeal.
For reversal, the appellant contends that the trial court erred in admitting testimony to show that, during a recess at trial, the appellant asked a witness to change his testimony. She also asserts that the trial court erred in allowing testimony concerning sсientific tests by a witness who was not present when the tests were performed. We find no error, and we affirm.
With respect to the appellant’s contention concerning the admission of testimony that she attempted to influence a witness to change his testimony, the appellant first argues that, under A.R.E. Rule 403, the trial court abused his disсretion in admitting the testimony. We disagree. Evidence of other crimes is admissible under A.R.E. Rule 404(b) if the evidence is independently relevant, and the probative value of thе evidence outweighs the danger of unfair prejudice under A.R.E. Rule 403. Smith v. State, 19 Ark. App. 188, 718 S.W.2d 475 (1986). We think that these criteria were met in the case at bar.
The record indicates that the State called John Paul Proffitt as a witness. Proffitt testified that, about one month before the fire, the appellant offered to pay him to set fire to her housе, but he refused. He further stated that he visited the appellant
Q And what was the — What do you say Jane Morris said to you?
A She asked me what I was going to say. And I said, “the truth.” And she said, “Like what”? And I said, “Like, for instance, that I’m going to tell them that me and Jamеs was [sic] in the back bedroom when your Daddy pulled up.” And she said, “No. No. Tell them you was [sic] walking down the road.”
Proffitt’s location during the minutes immediately prior to the outbreak of the fire was a relevant consideration, because the jury could infer from Proffitt’s testimony that the appellant had placed Proffitt in the bedroom so that she could return to her house and set the fire. Moreover, if Proffitt had testified that he was walking down the road when the fire started, the appellant’s accusаtion of Proffitt as the person who started the fire would have been more plausible. Under these circumstances, we think that his testimony concerning the conversation in the elevator possesses independent relevance, for it tends to show the appellant’s knowledge of her own guilt, from which it may be inferred that she wаs the person who committed the crime. See Poole v. State, 262 Ark. 4, 552 S.W.2d 647 (1977); see also E. Inwinkelried, Uncharged Misconduct Evidence § 3:04 (1984). Nor do we think that the trial court erred in fаiling to exclude Proffitt’s testimony regarding the conversation under A.R.E. Rule 403. The State was required to prove that the appellant set the fire intentionally, and the disputed testimony has a direct bearing on her knowledge and intent. Moreover, the disputed testimony was not of such character as to arouse undue hostility in the jury. See McCormick on Evidence § 490 at 565 (3d ed. 1984). Under these circumstances, we hold that the trial court did not abuse his discretion in admitting Proffitt’s testimony.
The appellant also argues thаt the trial court’s admission of Proffitt’s testimony concerning witness tampering was erroneous because her attorney could have rebutted that testimony had he been permitted to testify; thus, she argues, she was deprived of her right to defend herself. We find no merit in this contention. The record indicates that the attorney’s rebuttal testimony would have been that he had been with the appellant at various times during the day that the alleged tampering was said to have occurred. He did not claim that hе had been with the appellant at all times while she was in the courthouse; nor did he claim to have been in an elevator with the appellant and Proffitt on thе day in question. Moreover, the appellant’s attorney did not request permission to testify, nor did he move to withdraw as the appellant’s attorney, for a mistrial, or request a continuance. Instead, his position before the trial court, which he urges on appeal, was that he was absolutely barred from testifying under the rules рronounced in Aetna Casualty and Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984), and Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), and that Proffitt’s testimony concerning the appellant’s statements on the elevator should thus be excluded. The cases cited by the appellant, however, do not set up an absolute bar to an attorney’s testimony. In Broadway Arms, an attorney who had a finanсial interest in a case in the form of a contingent
Finally, the appellant contends that the trial court erred in permitting testimony concerning scientific tests by a person who neither performed thеm nor was actually present when they were performed. She argues that this testimony was inadmissible hearsay which should have been excluded under A.R.E. Rule 803. We do not agrеe. The testimony that is the subject of this point for reversal was that of Andrew T. Armstrong, a chemist employed by Armstrong Forensic Laboratories, Inc., a firm specializing in the recovery and identification of flammable liquids from fire debris. Mr. Armstrong’s testimony consisted of a statement of the results of various scientific tests, and his opinion that flammablе liquids were present in samples of the debris taken from the appellant’s house after the fire. Armstrong stated that, although the scientific tests upon which his opinion was based were performed by others, his conclusions were based upon his own analysis of the data derived from those tests. Under these circumstances, we hold thаt the trial court did not err in admitting Armstrong’s testimony concerning the test results. It is well-settled that an expert may base his opinion upon facts learned from others, even thоugh those facts are themselves hearsay. Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978); A.R.E. Rule 703. Moreover, we have held that, under Rule 703, an expert must be allowed to disclose the facts upon which his opinion is based to the trier of fact; otherwise, the opinion is deprived of its factual underpinning, and the trier of fact is left with little means for evaluating its correctness. Carter v. St. Vincent Infirmary, 15 Ark. App. 169, 690 S.W.2d 741 (1985).
Affirmed.
Corbin, C.J., and Cracraft, J., agree.