Johnson v State

• Decision Date: 05 October 2000
• Docket Number: 98-743
• Citation: 27 S.W.3d 405
• Parties: Stacey Eugene JOHNSON v. STATE of Arkansas CR 98-743 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Stacey Eugene JOHNSON v STATE of Arkansas

CR 98-743 ___ S.W.3d ___

Opinion delivered October 5, 2000

Supreme Court of Arkansas

Appeal from Sevier Circuit Court; Ted Capeheart, Judge; affirmed.

1. Witnesses -- competency -- trial court's discretion. -- The competency of a witness is a matter lying within the sound discretion of the trial court, and, in the absence of clear abuse, the supreme court will not reverse on appeal.

2. Witnesses -- child's competency -- records sought were irrelevant & thus inadmissible. -- Access to a second therapist's records would in no way have aided the defense in challenging the child's ability to appreciate telling the truth on the witness stand because the child was herself present and available for cross-examination on the point; with respect to the issue of the child's competency, the records sought were clearly irrelevant and therefore inadmissible for the purpose of challenging her competency at the second trial.

3. Evidence -- psychotherapist-patient privilege -- properly asserted by child witness who did nothing to bring her emotional condition into issue. --Where the child witness was not a party to the proceedings and did nothing to bring her own emotional condition into issue, she properly asserted her psychotherapist-patient privilege.

4. Evidence -- psychotherapist-patient privilege -- waiver in one proceeding does not constitute waiver in later proceedings. -- The waiver of the psychotherapist-patient privilege in one proceeding does not constitute waiver of the privilege at subsequent proceedings, even as to privileged material that was disclosed at the first trial.

5. Evidence -- psychotherapist-patient privilege -- patient with new body of privileged material may assert. -- If a patient is entitled to assert the psychotherapist-patient privilege at a subsequent proceeding as to previously disclosed material, then a patient with a new body of privileged material may also assert the privilege; the privilege exists between the patient and the psychotherapist, not between the patient and an issue in the case.

6. Evidence -- psychotherapist-patient privilege -- application to material created after appellant's first trial not error. -- Where, between appellant's first trial and his retrial, the child witness had obtained a new psychotherapist, thus creating a new set of privileged therapy records and communications, and where, to appellant's benefit, the trial court applied the psychotherapist-patient privilege only to material created after his first trial, the supreme court, applying the holding in Maryland Cas. Co. v. Maloney, 119 Ark. 434, 178 S.W. 387 (1915), held that this was not error.

7. Evidence -- psychotherapist-patient privilege -- more important than need for probative evidence. -- The psychotherapist-patient privilege is paramount to the need to gain access to privileged material for evidentiary purposes; the privilege is more important than the need for probative evidence.

8. Discovery -- appellant failed to show State had access to records -- no Brady violation occurred. -- In the absence of a showing by appellant that the State had access to records sought pursuant to Ark. R. Crim. P. 17.1 and 17.4 and Brady v. Maryland, 373 U.S. 83 (1963), the supreme court held that no Brady violation occurred.

9. Evidence -- psychotherapist-patient privilege -- denial of appellant's access to records was proper. -- Where the child witness's psychotherapy records were not relevant for a determination of her competency to testify at the second trial and were subject to the psychotherapist-patient privilege; where she did not waive the privilege simply because she had waived it in the first trial; and where the privilege outweighed appellant's right to present a defense, the supreme court held that the trial court's decision to deny appellant access to the records was proper and would be affirmed.

10. Appeal & error -- parties bound by scope & nature of objections at trial. --Parties are bound on appeal by the scope and nature of their objections at trial.

11. Appeal & error -- contemporaneous objection required for reversal. -- The supreme court will not reverse in the absence of an appropriate contemporaneous objection in the trial court.

12. Appeal & error -- unsupported assignments of error not considered. --Assignments of error unsupported by convincing argument or apposite authority will not be considered on appeal.

13. Appeal & error -- failure to object barred argument on appeal. -- Where appellant admittedly failed to object to victim-impact testimony on ex post facto grounds at trial, his argument on the issue was barred on appeal.

14. Appeal & error -- law of case -- doctrine discussed. -- The law-of-the-case doctrine ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded; the doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals.

15. Appeal & error -- law of case -- review of ex post facto argument precluded. -- Where there had been neither substantive changes in the law nor material variances in the evidence between appellant's first appeal and his second, the law-of-the-case doctrine precluded review of his ex post facto argument.

16. Evidence -- admission of -- trial court's discretion. -- A trial court is vested with wide discretion in admitting evidence, and the appellate court will not reverse in the absence of an abuse of that discretion.

17. Evidence -- third-party culpability -- inadmissible unless it points directly to third party's guilt. -- A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party; evidence that does no more than create an inference or conjecture as to another's guilt is inadmissible; evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.

18. Evidence -- third-party culpability -- trial court did not abuse discretion in refusing to allow testimony of third party's former wife. -- Where it was untenable to assert that the testimony of the former wife of a third party directly implicated the third party in the murder of the victim, which is the prerequisite for admitting any evidence of a third party's guilt, the trial court did not abuse its discretion in refusing to allow the testimony of the third party's former wife.

19. Appeal & error -- bare assertion insufficient. -- Where appellant made the bare, unsupported assertion that a statement by the child witness was impermissible hearsay evidence and did not constitute an excited utterance, that assertion alone was insufficient.

20. Appeal & error -- law of case -- precluded review of excited-utterance issue. -- Where, in response to appellant's argument that the child witness's statement to a State Police investigator and a Human Services supervisor was hearsay, the supreme court held in the first appeal that it did not view the statement by the child made more than nine hours after her mother's body was discovered and she was removed from the apartment as inconsistent with the spontaneity and impulsiveness associated with an excited utterance, and where there had not been an intervening material change in the evidence, the law-of-the-case doctrine precluded review of the issue.

21. Appeal & error -- supreme court will not reverse for plain error -- trial court did not err in refusing to suppress appellant's confession. -- Where appellant asserted that the trial court should have suppressed his confession but admitted that his argument was not preserved for appellate review and must await retrial or an Ark. R. Crim. P. 37 hearing, and where appellant did not argue for reversal, the supreme court, which will not reverse for plain error, concluded that it could not be held that the trial court erred in refusing to suppress appellant's confession. [wbj]

Jeff Rosenzweig, for appellant.

Mark Pryor, Att'y Gen., by: James R. Gowen, Jr., Ass't Att'y Gen., and Michael C. Angel, Ass't Att'y Gen., for appellee.

W.H. "Dub" Arnold, Chief Justice.

In 1994, appellant Stacey Eugene Johnson was convicted of capital murder in Sevier County Circuit Court in the death of Carol Heath. He was sentenced to death. In Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), hereinafter referred to as Johnson I, this Court reversed his conviction on the ground that the trial court had improperly admitted an out-of-court statement allegedly made by six-year-old Ashley Heath, daughter of the victim, in which Ashley claimed she had witnessed the murder of her mother and purported to identify appellant as the murderer. Ashley Heath had been found incompetent to testify at that trial. A retrial was held in November 1997 in Pike County, venue having been changed. In this trial, Ashley Heath was found competent to testify and did testify. Appellant was again sentenced to death. It is from that conviction and sentence that the instant appeal is brought. Appellant raises multiple bases for reversal, which are as follows:

The trial court erred in denying Johnson access to the records of examination and treatment of the child witness conducted after the first trial;

The trial court erred in permitting introduction of victim-impact evidence;

The trial court erred in denying Johnson the right to present evidence that another person may have committed the offense;

The trial court erred in permitting introduction of the child's out-of-court statements;

The...