Rush v. State

BRADLEY D. Jesson, Chief Justice, concurring in part; dissenting in part. While I agree that this case must be reversed for resentencing, my beliefs are based on grounds different than those expressed in the majority opinion. The majority’s position regarding what constitutes the “nature of the previous convictions” in Ark. Code Ann. § 16-97-103 (2) (Supp. 1993), in my view, is much too limiting. I do not interpret this statute as erecting a per se bar to the admission of witness testimony from victims of previous convictions.

The State asks us to interpret the provision at issue to include the facts and circumstances surrounding the previous offense. While the majority relies on a dictionary definition in accepting the appellant’s limiting construction of the term “nature,” the State’s proposed interpretation is consistent with decisions from other jurisdictions. See e.g., People v. Hope, 658 N.E.2d 391 (Ill. 1995)(citing People v. Owens, 464 N.E.2d 261 (Ill. 1984) (“When a prior conviction has been proved, the prosecution may introduce evidence concerning details of that offense, as long as that information is relevant and reliable.”); State v. J.E.B., 469 N.W.2d 192, 195 (Wis. App. 1991), cert. den. 112 S.Ct. 1484 (1991). I find the Wisconsin Supreme Court’s interpretation of “nature” particularly persuasive:

It is not the philosophy of modern criminal law that the punishment fit the crime alone and that for every violation of a particular statute there be an identical sanction. In light of the function of the law to deter similar acts by the defendant and others and to rehabilitate the individual defendant, it is essential that a sentencing court consider the nature of the particular crime, i. e., the degree of culpability - distinguishable from the bare-bones legal elements of it - and the personality of the criminal. The interests of both society and the individual must be weighed in each sentencing process.

McCleary v. State, 182 N.W.2d 512, 517 (Wis. 1971) (Emphasis added); see also State v. J.E.B., supra. Such an interpretation is consistent with the “Statement of sentencing policy” in Ark. Code Ann. § 16-90-801 (a)(l)(Supp. 1995), which provides that one of the primary purposes of sentencing is “[t]o punish an offender commensurate with the nature and extent of the harm caused by the offense, taking into account factors that may diminish or increase an offender’s culpability.” (Emphasis added.)

The United States Supreme Court has upheld the consideration of a defendant’s prior convictions as well as a defendant’s past criminal behavior, even where no conviction resulted from such behavior. Nichols v. United States, _ U.S. _ (1994)(sl. op., at 9); Williams v. New York, 337 U.S. 241 (1949). The Court has further held that the state could consider, as a sentence enhancement factor, visible possession of a firearm during the felonies of which a defendant was found guilty. McMillan v. Pennyslvania, 477 U.S. 79 (1986); Nichols, supra, sl. op., at 10. And in terms of sentencing by a judge, the Court has held that the judge “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” Id., quoting United States v. Tucker, 404 U.S. 443, 446 (1972). Based on this backdrop of authority, I believe a more reasonable interpretation of the statute at issue would be to permit evidence concerning the details of a prior offense, so long as the trial court determined that the evidence is relevant and reliable.

In this case, the trial court found that the underlying facts of the battery conviction were relevant because, like the facts in the present charge, the battery involved a threat to kill the victim. As this court does not have before it a record of the facts presented during the guilt phase, I would decline to reverse on this issue, as the court cannot properly review whether the trial court abused its discretion in determining that Sweeney’s testimony was relevant in the absence of a complete record.

I would, however, reverse this case for resentencing based on the third question presented. During the prosecutor’s questioning of the victim’s mother, he asked if she had visited with his victim witness coordinator regarding some matters contanied in the Diagnostic and Statistical Manual of Mental Disorders. Without establishing this treatise as reliable authority or qualifying the victim’s mother as an expert, the prosecutor proceeded to ask the victim’s mother if she was familiar with “post-traumatic stress disorder.” Reading from this manual, he inquired as follows:

QUESTION BY MR. FOSTER: Has your daughter experienced items outside the range of normal human experiences? Do you think most people go through this? Ms. Hambuchen replied no.

QUESTION BY MR. FOSTER: Does she ever relive the event of being awakened in the middle of the night and kidnapped?

Ms. Hambuchen responded yes.

QUESTION BY MR. FOSTER: Does she ever exhibit any type of emotional distress? Ms. Hambuchen responded yes.

QUESTION BY MR. FOSTER: Is she as emotionally responsible as she was prior to the event? Ms. Hambuchen responded no.

QUESTION BY MR. FOSTER: Do normal events affect her and normal emotional stimuli affect her the way it did before she was kidnapped? Ms. Hambuchen responded no.

QUESTION BY MR. FOSTER: Does she appear to be less excitable and less affected by things going on around her?

Ms. Hambuchen responded yes.

QUESTION BY MR. FOSTER: How does she respond to external stimuli such as sound? Ms. Hambuchen responded that they scare her.

Arkansas Rule of Evidence 701 governs opinion testimony of lay witnesses, and permits opinion testimony by lay witnesses in observation of everyday occurences, or matters within the common knowledge of most persons. Felty v. State, 306 Ark. 634 , 816 S.W.2d 872 (1991). Here, the victim’s mother was never qualified as an expert and did not have the requisite first-hand personal knowledge to testify as to the presence of factors relating to post-traumatic stress disorder. Moreover, the treatise used by the prosecutor was never established as reliable authority. In cases involving A.R.E. 803(18), which permits statements from learned treatises to be read into evidence if relied on by an expert witness, we have held that it is error to allow counsel to read from a book not shown to be established as a reliable authority. Davies v. State, 286 Ark. 9 , 688 S.W.2d 738 (1985). Even the introduction to the treatise itself contains cautionary statements to the effect that the proper use of the criteria therein requires specialized clinical training that provides both a body of knowledge and clinical skills. See Diagnostic and Statistical Manual of Mental Disorders at xxvi and xxix (3d ed. rev. 1987). In my view, the trial court erred in allowing the prosecutor to use this manual to question the victim’s mother. As the jury was left with the distinct impression that the victim suffered from post-traumatic stress disorder, I must conclude that this error was prejudicial requiring reversal and remand for resentencing.