Cogburn v. State

732 S.W.2d 807, 292 Ark. 564, 1987 Ark. LEXIS 2192

• Court: Supreme Court of Arkansas
• Decided: July 6, 1987
• Docket: CR 87-24
• Status: Published

Opinions

Jack Holt, Jr., Chief Justice.

The appellant, Charles Wesley Cogburn, was charged with rape for allegedly engaging in sexual intercourse with his seven-year-old daughter. He was convicted by a jury of carnal abuse in the first degree and, when the jury was unable to agree on the punishment, sentenced by the court to ten years imprisonment. On appeal, Cogburn challenges the admissibility of a videotaped interview of his daughter, the constitutionality of A.R.E. Rule 803(25)(A), the admissibility of certain testimony, the failure to give a jury instruction, and the refusal to admit certain test results. The court of appeals certified this case to us to determine the constitutionality of Rule 803(25)(A). We find that the rule is constitutional as applied to Cogburn, but that the trial court committed error when it permitted the introduction of the videotaped interview and reverse.

1. ADMISSION OF VIDEOTAPED INTERVIEW.

The state filed a motion with the trial court on May 21,1985, requesting permission to take a videotaped deposition of the victim pursuant to Ark. Stat. Ann. § 43-2036 (Supp. 1985). The motion was granted and the deposition was scheduled for July 2, 1985. At the deposition, however, the child became emotionally distressed and was unable to testify.

On earlier dates, February 13 and 15,1985, Carol Dungan, assistant juvenile probation officer for the Union County Juvenile Court, interviewed the child at the request of Arkansas Social Services. Each interview was videotaped. In the course of the interviews, the child was given two dolls: a boy and a girl. She pretended the boy doll was her father and the girl doll was her, and described several incidents of sexual contact between the two. The defendant was not notified that the interviews were to take place and his attorney was not present for the interviews. The court permitted the state to play these videotapes for the jury, over Cogburn’s objections, relying on A.R.E. Rule 803(25).

Rule 803(25) provides in part:

(25)(A) A statement made by a child under ten (10) years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, . . .

The rule then conditions the admission of such a hearsay statement on a hearing conducted by the court, outside the presence of the jury, after which the court finds that the statement possesses reasonable likelihood of trustworthiness using criteria enumerated in the rule.

Rule 803(25) applies generally to any statement made by a child that meets the required criteria. The Legislature, however, has made specific provisions for such statements when they are videotaped. The appropriate procedure for presenting videotaped testimony of victims of sexual abuse is provided in Ark. Stat. Ann. § 43-2036 (Supp. 1985) as follows:

In any prosecution for a sexual offense or criminal attempt to commit a sexual offense against a minor, upon motion of the prosecuting attorney and after notice to the opposing counsel, the court may, for a good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of seventeen (17) years. The videotaped deposition shall be taken before the judge in chambers in the presence of the prosecuting attorney, the defendant and his attorneys. Examination and cross-examination of the alleged victim shall proceed at the taking of the videotaped deposition in the same manner as permitted at trial under the provisions of the Arkansas Uniform Rules of Evidence. Any videotaped deposition taken under the provisions of this Act . . . shall be admissible at trial and received into evidence in lieu of the direct testimony of the victim. However, neither the presentation nor the preparation of such videotaped deposition shall preclude the prosecutor’s calling the minor victim to testify at trial if that is necessary to serve the interests of justice (emphasis added).

It is an accepted rule of law that a general statute, such as Rule 803(25) (Ark. Stat. Ann. § 28-1001 (Repl. 1979 &Supp. 1985)), does not apply where there is a specific statute, such as § 43-2036, covering a particular subject matter. Drum v. McDaniel, 215 Ark. 690, 222 S.W.2d 59 (1949). Accordingly, the trial court erred in admitting the videotape under Rule 803(25).

The state concedes that § 43-2036 was not complied with in videotaping the Dungan-victim interviews. We have explained that videotaped depositions are permissible only when authorized by statute, and that the use of depositions in criminal cases is more carefully scrutinized than in civil cases. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986). In Russell v. State, 269 Ark. 44, 598 S.W.2d 96 (1980) this court reversed the trial court’s decision admitting into evidence a videotaped deposition that was not authorized by statute. We stated:

While we have approved the use of a video tape recording in taking depositions, that is only in an instance where a deposition is lawfully authorized. . . .

[T]he right to take depositions in a law case rests upon statutory authority and in no case can the right be exercised unless the authority therefor exists.

Since the requirements of Ark. Stat. Ann. § 43-2036 were not followed and Rule 803(25) does not apply, the trial court erred in receiving the videotape into evidence, and we reverse the conviction on that basis. The error was prejudicial in that the defendant was denied the right to cross-examine the child at the time she made her videotaped statement, and the state was in effect permitted to offer the direct testimony of the victim twice, once through the videotape and once through live testimony.

2. HEARSAY TESTIMONY.

The victim made statements about the sexual abuse she allegedly suffered to her mother, Rebecca Cogburn; to Linda Coursey, a counselor at the South Arkansas Regional Health Center; and to Carol Dungan, as previously discussed. The state filed a motion to introduce this hearsay testimony on the grounds that the minor has suffered a tremendous emotional distress, and her testimony at the trial would be extremely embarrassing and difficult for her. The state argued that the testimony of the parties falls within the purview of A.R.E. Rule 803(25). After two pretrial hearings, the court permitted the testimony, but limited Dungan to either testifying about the statement or introducing the videotape. The state chose to introduce the tape.

As to the other statements offered, Cogburn argues that Rule 803(25) “clearly requires” the court to make specific findings that the statements offered possess a reasonable likelihood of trustworthiness. Cogburn states that, although a hearing was held on this question, the court simply admitted the statements without making such specific findings.

The court’s action was sufficient. Rule 803(25) does not require written findings, or specific oral findings, but rather requires the trial court to base its decision on the enumerated criteria. Two pretrial hearings were held in this case in which evidence was presented about the statements. During the hearings, the prosecutor referred constantly to the necessary criteria, commenting as he offered proof of each one. In addition, the court stated that it took “all those matters into consideration when it made its ruling”, referring to the requirements of Rule 803(25). There is no merit to this argument.

Cogburn also maintains the criteria of the rule were not met in that the statements were not trustworthy. Rule 803(25) requires the judge to determine the age and maturity of the child; the time and content of the statement and the circumstances surrounding the giving of the statement; the nature and duration of the offense involved; the relationship of the child to the offender; the reliability of the assertion; the reliability-credibility of the child witness before the judge; the relationship of the child to the one offering the statement; and any other corroborative evidence of the act or any other appropriate factors.

At two pretrial hearings on the admissibility of evidence under A.R.E. 803(25), Rebecca Cogburn testified that the child was born November 7, 1977, and is able to relate events and knows the difference between telling the truth and lying. She testified that the child’s teacher called and said they were having trouble with her at school, whereupon Mrs. Cogburn took the child to a counselor. The counselor suggested asking the child if she might be a sexual abuse victim. Mrs. Cogburn then talked to the child and told her that if anyone touched her where she didn’t want to be touched that that was wrong and that she could talk to her about it. A week later, the child told her mother about sexual incidents with Cogburn.

The counselor testified at the pretrial hearings that she, too, discussed the allegations against Cogburn with the child and learned that the abuse began when the child was five and in kindergarten and the counselor assessed the child’s mental status, her mental health and the degree of her adjustment. It was her opinion that the child was sexually abused. In Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), we held that a medical witness could not give his opinion, in the absence of any medical evidence, that, a child was sexually molested. Here, the counselor’s statement of opinion that the child was sexually abused was not argued as error before the trial court or in this appeal. Accordingly, we need not address this issue in this case.

The foregoing pretrial proceedings met the requirements of Rule 803(25) and no error was committed in permitting the parties’ subsequent trial testimony. Had the state opted to use Dungan’s testimony, that testimony would also be admissible provided it met the criteria stated above.

3. CONSTITUTIONALITY OF A.R.E. 803(25).

Cogburn also argues Rule 803(25) permitting hearsay testimony unconstitutionally denies a defendant the right to confront the person giving the statement. Cogburn maintains that substantive due process prohibits the admission of testimony which does not give the defendant the basic right to cross-examine the witnesses against him.

The sixth amendment’s confrontation clause, made applicable to the states through the fourteenth amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.”

The United States Supreme Court has held that the confrontation clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. California v. Green, 399 U.S. 149 (1970). The Court explained that even if “the out-of-court statement may have been made under circumstances subject to none of these protections,... if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections.” Id. See also, U.S. v. King, 613 F.2d 670 (7th Cir. 1980); U.S. v. Green, 548 F.2d 1261 (6th Cir. 1977).

Here, the victim testified at the trial and was subject to unbridled cross-examination. Therefore, the hearsay evidence admitted against Cogburn concerning the victim’s statements under Rule 803(25) did not violate the confrontation clause and, under these circumstances, does not render the rule unconstitutional. In so holding, we must point out what is not being addressed in this opinion. Unlike our decision in Johnson v. State, supra, handed down today, no argument has been made about the requirement in Ohio v. Roberts, 488 U.S. 56 (1980) that a declarant be unavailable before their out of court statement can be admitted at trial without violating the Confrontation Clause. Since this argument was not raised in this appeal, as it was in Johnson, we are unable to reach it.

4. JURY INSTRUCTION—A.R.E. 803(25).

Rule 803(25)(A)(3) provides:

If a statement is admitted pursuant to this Section the Court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.

The state concedes that the jury was not instructed by the court pursuant to this rule, but maintains Cogburn never requested such an instruction nor objected to its omission. In addition, it notes the jury was instructed generally on credibility of witnesses. The state is apparently correct and accordingly, we would not reverse Cogburn’s conviction on this basis. Inasmuch as the conviction is being reversed because of the admission of the videotape, however, at a retrial the trial court should instruct the jury as required by the rule. The instruction should be given before the testimony is offered, in the nature of an admonition, rather than given at the conclusion of the case with the packet of jury instructions. See Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214 (1986). Although the rule does not specify the time at which the instruction is to be given, we think this is the better practice since it would enable the jury to truly consider the testimony as it is given in light of the admonition.

5. EX POST FACTO APPLICATION OF A.R.E. 803(25).

The legislature amended Rule 803 and added subsection (25) in 1985. Cogburn was arrested and charged with having committed the crime in 1984. Cogburn argues that application of Rule 803(25) to him violates the constitutional prohibition against ex post facto laws.

In the recent case of Smith v. State, 291 Ark. 163,

722 S.W.2d 853 (1987), this court discussed at length the admissibility of evidence in the face of an alleged ex post facto violation. In that case, the appellant argued that evidence which could not have been admitted against him at the time the crime was committed was made admissible by legislation which became effective before he was tried. In finding no ex post facto violation, this court acknowledged that a law may not lawfully be changed between the time of the offense and the time of the trial, if it affects the definition of the crime or changes the punishment or makes the amount of proof necessary to sustain the conviction less than what was required at the time of offense. See Kring v. Missouri, 107 U.S. 221 (1882) and Government of the Virgin Islands v. Civil, 591 F.2d 255 (3rd Cir. 1979). We then stated:

We find nothing in . . . [these cases] which would require reversal here. We do not have a defendant who has lost a defense or been subjected to a trial in which “less evidence” in any direct sense is required for conviction than would have been required at the time of the offense . . .Nor are we persuaded by U.S. v. Henson, supra, for in that case, the law deemed ex post facto required the introduction against a testifying accused of certain facts which might not have been introduced had the law extant at the time of the offense been applied. That is not the case before us now. Rather, we are faced with the question whether admission of certain evidence of clearly admissible facts violated the ex post facto prohibition.

While we could not condone legislation criminalizing an act after its perpetration or retroactively increasing the punishment, we can find no reason to hold that a person who commits a crime has a right to rely on rules of evidence in effect at the time of the crime which govern not the facts which may be proven but the manner in which those facts are ascertained by a witness.

Applying this analysis to the case before us, the state was required to prove the same facts at the trial as it was before Rule 803(25) was enacted. The change which occurred was allowing those facts—the sexual abuse of the child—to be proven by testimony which would not have been admissible at the time of the crime. The trial court’s ruling admitting the testimony was correct.

6. TRUTH SERUM TESTS RESULTS.

Prior to the trial, the defense took the deposition of Dr. Gregory S. Kaczenski. The doctor testified that he conducted a neuropsychiatric evaluation of Cogburn and an amytal interview to look for evidence of a mental disorder. The doctor stated that the amytal interview, otherwise known as administering “truth serum”, lowers the inhibitions in the conscious mind and allows the person to speak freely. While under the influence of the truth serum, the doctor said that Cogburn achieved a hypnotic state and denied having sexual contact or experience with the victim. The doctor testified that, in his opinion, the test is good evidence against Cogburn having abused his daughter. The state filed a motion in limine to suppress the doctor’s testimony, which was granted by the trial court.

We do not set aside the trial court’s ruling unless it is clearly against the preponderance of the evidence. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). Here, the trial court was correct.

The results of polygraph tests are not admitted unless both parties enter into a written stipulation agreeing on their admissibility. Foster, supra; Ark. Stat. Ann. § 42-903 (Repl. 1977). Truth serum tests are generally held to occupy the same position as polygraph tests and most courts do not recognize the admissibility of either test for the purpose of proving the truth of the matter asserted. 29 Am. Jur. 2d Evidence § 831 pp. 923-24 (1967). Of these courts we are persuaded by the reasoning of the Texas Court of Criminal Appeals in Cain v. State, 549 S.W.2d 707 (1977) where they stated:

The great weight of authority in this country regards results of truth serum tests as inadmissible inasmuch as they have not yet attained scientific acceptance as reliable and accurate means of ascertaining truth or deception.

“It is therefore apparent that the efficacy of neither the lie detector or the truth serum test have gained that standing and scientific recognition nor demonstrated that degree of dependability to justify the courts in approving their use in the trial of criminal cases.” (quoting Henderson v. State, 94 Okl. Cr. 45, 230 P.2d 495 (1951)).

Because of the error in admitting the videotaped statement of the victim, the conviction is reversed.

Purtle, J., concurs.