Blaylock v. Strecker

• Decision Date: 02 March 1987
• Docket Number: No. 86-154,86-154
• Citation: 291 Ark. 340,724 S.W.2d 470
• Parties: Patricia BLAYLOCK, Appellant, v. Paul STRECKER, Appellee.
• Court: Arkansas Supreme Court

Page 470

724 S.W.2d 470

291 Ark. 340

Patricia BLAYLOCK, Appellant, v. Paul STRECKER, Appellee.

No. 86-154.

Supreme Court of Arkansas.

March 2, 1987.

James A. McLarty, Newport, for appellant.

Harkey, Walmsley, Belew & Blankenship by John Norman Harkey, Batesville, for appellee.

DUDLEY, Justice.

Appellee, Paul Strecker, filed a suit for alienation of affections against appellant, Patricia Blaylock, alleging that appellant had caused the destruction of appellee's marriage to Chloe Strecker. The jury found in favor of appellee Strecker and awarded $50,000.00 compensatory and $250,000.00 punitive damages. We reverse and remand for a new trial.

Appellant's first point of appeal concerns a ruling by the trial court which excluded the testimony of Debbie Strecker, the 20-year-old daughter of appellee and Chloe Strecker. The proffer of Debbie's testimony reflects that three to four weeks before the trial she contacted appellee's lawyer and told him that her mother, Chloe Strecker, and appellant Blaylock were not homosexual lovers and that marital strife had existed between her parents for years. According to his brief, appellant's lawyer had not contacted Debbie because he did not wish to involve her in a trial with her father on one side and her mother's alleged homosexual lover on the other. The record only discloses that Debbie was not subpoenaed to appear as a witness, but that she did attend the trial as an interested spectator. There, she heard her father's attorney's opening statement, in which he said, in part:

Paul is going to tell you that he has been hurt emotionally. That in his opinion his family life has been ruined, and the lives of at least two of his children ruined. This woman gives them marijuana. This woman right here gives his son Chip, who is 16 years old, and I'll prove it to you ...

Following the completion of appellant's opening statement, Debbie approached appellant's attorney and said that appellee's opening statement was not true and that she wanted to testify to that effect. Appellant's attorney notified the court and appellee's attorney, and Debbie was placed under the rule. The next day the appellant called her as a witness. The appellee objected because she had not been listed as a witness and because she had heard opening statements. The trial court ruled that appellant was not surprised by the witness and refused to exclude her testimony on the basis that she was not listed. However, the trial judge did exclude the testimony for the reason the witness had heard opening statements. The ruling was erroneous.

Both parties agree Debbie's proffered testimony was material. In fact, in his brief appellee states: "As the eldest child of the Streckers, she would have been in a position to understand the relationship between her parents and many of the other matters which were to be testified to during the trial. To that there is no question."

The rule providing for the exclusion of witnesses, A.R.E. Rule 615, may involve three different types of rulings by a trial judge, and each type presents a different standard for the judge. The first sentence of the rule provides: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion." (Emphasis added.) The standard of discretion given to the trial judge by this part of the rule is that of no discretion. If a party requests the rule, it must be granted.

The remainder of the rule provides: "This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause." Under this phase of the rule, on deciding whether a person should be sequestered because he is an officer or employee of a party, or person whose presence is necessary, the standard of discretion afforded a trial judge is average discretion. Home Mutual Fire Insurance Co. v. Riley, 252 Ark. 750, 480 S.W.2d 957 (1972); Arkansas Power & Light Co. v. Melkovitz, 11 Ark.App. 90, 668 S.W.2d 37 (1984).

The third phase, and third different standard, arises when a witness has been ordered sequestered, but does not comply. The rule does not mention the consequences of noncompliance with an order of exclusion, and therefore the sanctions are a matter of case law. The three possible methods of enforcement available to the trial judge are: (1) citing the witness for contempt, (2) permitting comment on the witness's noncompliance in order to reflect on her credibility, and (3) refusing to let her testify. See 3 J. Weinstein & M. Berger, Weinstein's Evidence 614-15 (1986).

The first option, citing the witness for contempt, was not a viable alternative under the facts of this case. The second option, and the one favored in this State since 1855, Pleasant v. State, 15 Ark. 624, 650 (1855), and favored by federal courts since 1893, Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893) was available, and its use would have been proper. It was error to use the third option, exclusion.

A trial court has very narrow discretion to exclude the testimony of a noncomplying witness. Harris v. State, 171 Ark. 658, 285 S.W. 367 (1926); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975); Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976). Our standard on the exclusion of a witness's testimony remains as it has been for many years, a standard of narrow discretion. That narrow discretion can be exercised by the trial judge only when the noncompliance is had with the consent, connivance, or procurement of a party or his attorney. In Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976), we quoted with approval the following language from Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975):

The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624.

In the case of Wade v. Moody, 255 Ark. 266, 500 S.W.2d 593 (1973), one of the parties told the noncomplying witness what the prior witnesses had testified to, and yet we went so far as to say that exclusion was not the proper remedy. In the case at bar no complicity between the noncomplying witness, the party calling her, or the party's attorney is even suggested and the witness should have been allowed to testify.

In Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976), we additionally quoted from Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975) as follows:

The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free in argument to the jury, to raise an issue as to his credibility by reason of his conduct, the party, who is innocent of the rule's violation, should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W.2d 277 [ (1964) ]; Mobley v. State, 251 Ark. 448, 473 S.W.2d 176 [ (1971) ].

We are still unable to find any case in which this Court has sustained the action of a trial court in excluding a witness for noncompliance.

The appellee argues that we should not be governed by the above cases because most of them are criminal cases. While it is true there are additional constitutional considerations in criminal cases, the sequestration of witnesses is not limited to criminal cases, and the reasons for not excluding the relevant testimony apply to both civil and criminal cases. In addition, the scarcity of civil cases on the subject probably is due to the history of the statutes. The civil predecessor to A.R.E. Rule 615 dates back to the civil code and was permissive; that is, it provided that the trial judge "may" exclude from the courtroom any witness of the adverse party. Ark.Stat.Ann. § 28-702 (Repl.1979); Vaughn v. State, 252 Ark. 505, 479 S.W.2d 873 (1972). On the other hand, the criminal rule was mandatory, that is, the judge "shall" exclude any witnesses. Ark.Stat.Ann. § 43-2021 (Repl.1977); Vaughn v. State, supra. Obviously, the rule would have been used more often in criminal cases, and there would be more criminal appeals.

Appellee cannot bring himself within the harmless error rule. Accordingly, we must reverse on this first assignment of error. We discuss the other points of appeal because they are likely to arise again upon retrial.

Appellee and his counsel repeatedly violated a court order prohibiting the mention of certain matters and appellee's counsel frequently led witnesses. We doubt that such acts will reoccur at retrial, but if they do, the trial court can (1) admonish the witness or the attorney at the bench or before the jury, (2) strike the improper question and either permit a proper one or refuse to allow counsel to re-ask, (3) cite the offender for contempt, and (4) declare a mistrial. Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986). With this arsenal of sanctions, a trial judge should be able to prevent repeated violations of pretrial orders and leading of witnesses.

If the trial judge allows frequent and repeated violations, over timely objections, we will reverse. Alexander v. Chapman, supra.

The third point of appeal concerns an evidentiary ruling. The trial court allowed the appellee to prove that appellant had a homosexual relationship with his wife. In an alienation action, it is...