Barr v. State

• Decision Date: 28 January 1999
• Docket Number: No. 98-328,98-328
• Citation: 336 Ark. 220,984 S.W.2d 792
• Parties: Richard Francis BARR, III, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 792

984 S.W.2d 792

336 Ark. 220

Richard Francis BARR, III, Appellant, v. STATE of Arkansas, Appellee.

No. 98-328.

Supreme Court of Arkansas.

Jan. 28, 1999.

Kenneth G. Fuchs, Conway, for Appellant.

Winston Bryant, Atty. Gen., Brad Newman, Asst. Atty. Gen., Little Rock, for Appellee.

RAY THORNTON, Justice.

Appellant Richard Barr brings this appeal of his convictions for attempted capital murder, kidnapping, rape, aggravated robbery, theft of property, criminal impersonation, and fleeing, alleging several points of error by the trial court. Finding no error, we affirm appellant's convictions and his sentence of life imprisonment.

Appellant, traveling from West Virginia with his half-brother, Alan Chauncey, met twenty-one-year-old Sally Sanders and her mother in Conway during the evening hours of February 10, 1997. Representing themselves as FBI agents, appellant and Chauncey persuaded the two women to join them for coffee, then returned with them to the apartment Sally shared with her twenty-year-old sister, Alice. Chauncey asked to come inside to use the restroom; he emerged with a gun in hand and took the three women hostage. Over the course of the evening the women were bound and stripped, and the two sisters were subjected to multiple rapes.

Leaving Barr guarding the other two women with a knife, Chauncey took Sally to an ATM and withdrew cash from the women's bank accounts. Returning to the apartment, the sisters were made to shower, dress, and pack travel bags; they were told they would be taken to Fort Smith and released. Janie Sanders was left bound on a bed. Alice Sanders was ordered into the brothers' white Ford Explorer with Chauncey while Sally was to ride with appellant in Alice's Pontiac Grand Am. Chauncey stood guard over the sisters in the parking lot while appellant returned to the apartment and slit Janie Sanders's throat.

After the gunmen left with their hostages, Janie Sanders managed to free herself and go for help. The Conway Police Department was notified to be on the lookout for a white Explorer with West Virginia tags, and officers caught sight of it headed toward the interstate. The officers in pursuit stopped the Explorer in Conway on an entrance ramp to Interstate 40, but it suddenly took off at a high rate of speed. The officers began a high speed chase after the vehicle. Sally Sanders testified that appellant joined the chase a "couple of seconds" after they accessed the interstate in Conway.

Conway police officer Benjamin Lackey testified that while chasing the Explorer westbound on I-40, the officers were notified that a Grand Am was also involved in the crime. Shortly thereafter, Lackey spotted the Grand Am driven by appellant coming up behind them, then attempting to force the officers off the road. Officer Lackey did not recall where he was on the interstate when he first saw the Grand Am, but he did not believe he had reached Menifee, which is located on the Faulkner County--Conway County line. From that point, Officer Lackey began chasing the Grand Am at speeds in excess of one hundred and twenty miles per hour. Appellant was finally stopped in Pottsville, in Pope county.

Barr was charged with criminal impersonation, four counts of rape (accomplice liability), one count of aggravated robbery, two counts of aggravated robbery (accomplice liability), three counts of kidnapping, two counts of theft of property, two counts of theft of property (accomplice liability), criminal attempt to commit capital murder, theft by receiving, and fleeing. The brothers' cases were severed for trial. The trial court granted appellant's directed-verdict motion as to theft by receiving with regard to the Explorer, believed to be stolen. He was convicted on the remaining counts and sentenced to three life sentences plus 120 years.

Appellant brings this appeal, alleging five points of error: that the trial court erred in not admitting the psychological report of accomplice Alan Chauncey and not allowing the psychologist to testify regarding his findings; in denying appellant's directed-verdict motions with regard to the charges of criminal impersonation and fleeing; in allowing introduction of other crimes committed by the accomplice; and in denying appellant's motion for a mistrial during the State's closing arguments. We address each of these points in turn.

I. Psychiatric Evidence of Chauncey

For his first assignment of error, appellant claims that the trial court should have allowed him to admit into evidence testimony of the psychiatrist who conducted Chauncey's court-ordered mental evaluation and the State Hospital's report of that evaluation. Appellant claims that this evidence was essential to bolster his own credibility and to support his affirmative defenses of duress and choice of evils. Specifically, appellant argued that his brother had threatened to kill him and the three women, and that he was compelled to do what his brother instructed him to do. Alan Chauncey asserted his right under Ark. R. Evid. 503 to claim the psychotherapist-patient privilege, as well as his Fifth Amendment right against self-incrimination. The trial court agreed that Chauncey's medical records were privileged with respect to Barr's trial, and ruled that the psychiatrist could not testify and that the report could not be introduced. With regard to the threshold question whether Chauncey's medical records were relevant to Barr's claimed affirmative defenses, there was no showing that appellant was aware of Chauncey's disorder, or that it influenced his actions. After the court disallowed the evidence, appellant proffered both the doctor's testimony and the report for the record.

Rule 503 provides (b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

Ark. R. Evid. 503.

Appellant agrees in his brief that the psychological evaluation was completed to determine Chauncey's fitness to proceed. The rule clearly provides that communications made to a psychotherapist are privileged except with respect to the purpose for which the examination was ordered, unless ordered otherwise by the court. Ark. R. Evid. 503(d)(2). Here, the communications were made for the purpose of determining Alan Chauncey's competency, not for the purpose of supporting appellant's affirmative defense. Alan Chauncey's assertion of his privilege to refuse to disclose, and to prevent others from disclosing, his confidential communications made for the purpose of diagnosis or treatment is fundamental, and appellant cites no authority and makes no persuasive argument that the court's ruling was in error. In the words of Justice George Rose Smith, we are being asked in effect to research the law and to hold in favor of the appellant if the research of our labor so demands. We must decline that invitation. Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 862, 545 S.W.2d 606, 609 (1977).

Appellant asserts that no privilege exists where the communications have already been provided to third persons, i.e. the trial judge, prosecutor, and appellant's attorney. However, no privilege exists for a court-ordered evaluation "with respect to the particular purpose for which the examination is ordered." Ark. R. Evid. 503(d)(2). As such, this court-ordered report was necessary material for the trial court and the prosecutors, as well as Chauncey's attorney in the proceeding against Chauncey. Notwithstanding that appellant's attorney had obtained a copy of the report, the claim of privilege is not defeated by a disclosure which was inadvertently made.

Appellant asserts that, pursuant to Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), the privilege is inapplicable here because the rule applies to "communications," not simply any information. Appellant does not specify what portions of the testimony or the report should have been admitted, or explain why they amount to information, not "communications." Nonetheless, appellant's reliance upon Baker is misplaced because there the issue concerned the introduction of certain portions of Baker's medical records at her own trial.

Moreover, the basic question of the admissibility of evidence is relevancy. Relevant evidence is admissible; evidence which is not relevant is not admissible. Ark. R. Evid. 402. "Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401.

The evidence which appellant sought to introduce concerned Chauncey's diagnosis of multiple personality disorder, and appellant argues that this condition supports his affirmative defense of duress or the choice of evils. Appellant asserts that if he had not followed his brother's orders, Chauncey would have killed the women and appellant. However, appellant makes no argument and offers no citations in support of the relevancy of Chauncey's diagnosis to his own actions in committing the crimes. This evidence is not relevant to the charges at issue. Absent any showing that appellant was aware of Chauncey's disorder or that he acted in reliance upon it, and because appellant provides no citation of authority to support his contention that a medical record of another person should be admissible despite the...