Curtis v. State

• Decision Date: 29 January 1990
• Docket Number: No. CR,CR
• Citation: 301 Ark. 208,783 S.W.2d 47
• Parties: Junior CURTIS, Appellant, v. STATE of Arkansas, Appellee. 89-193.
• Court: Arkansas Supreme Court

Page 47

783 S.W.2d 47

301 Ark. 208

Junior CURTIS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-193.

Supreme Court of Arkansas.

Jan. 29, 1990.

Edward T. Barry, Jonesboro, for appellant.

Olan W. Reeves, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Appellant was convicted of the rape of his girlfriend's seven-year-old daughter. We affirm the conviction.

Appellant's primary point of appeal is that Ark.Code Ann. § 16-44-203 (1987), the statute which authorizes the videotaping of the testimony of a young victim of a sexual offense, is unconstitutional because it is procedural in nature and, under the separation of powers doctrine, only courts can promulgate rules of court procedure.

The rule-making power of courts comes from three (3) sources: (1) inherent in the constitutional separation of powers, (2) express constitutional grant, or (3) enabling legislation. There is no real question about the existence of the court's rule-making power, the only questions in this case concern the scope and exclusiveness of that power.

We have long had rules of court, possibly as far back as 1457. Joiner & Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich.L.Rev. 623 (1957). In 1927, Dean Roscoe Pound pointed out the defects in legislative regulation of court proceedings. Pound, Regulating Procedural Details by Rules of Court, 13 A.B.A.J. 12 (1927). By 1928, Professor Wigmore was arguing that all legislatively created rules of practice and procedure were constitutionally void. Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 Ill.L.Rev. 276 (1928). In the past twenty-five years the courts in many states have exercised their rule-making power. We are no exception. By rule, we have adopted the Arkansas Rules of Civil Procedure, the Arkansas Rules of Criminal Procedure, and the Arkansas Rules of Evidence. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

Unfortunately, however, there is a crepuscular, or twilight, zone which makes it difficult to determine whether the legislature or the judiciary should establish some procedures. A paper which was prepared for the purpose of making recommendations to the Michigan Legislature, Supreme Court of Michigan, and the Michigan State Bar for the revision of Michigan procedural statutes and rules is informative. In the paper, Joiner and Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich.L.Rev. 623, 628-29 (1957), the authors explain:

In Michigan, as in the political structure of the federal government and many states, the powers of government are divided in the traditional American pattern between the legislative, executive, and judicial branches. The judicial power is vested in the constitutionally created courts and such other courts as may be created by the legislature. Wigmore argues in an editorial referring to the pattern of government in Illinois (similar in this respect to that of Michigan) that all legislatively created rules of practice and procedure were constitutionally void, basing his argument on the logic of the constitution itself and the policy and experience with court rules and legislatively prescribed procedure. Two courts have recognized the validity of this argument. In other words, giving effect in fullest measure to the theory of separation of powers, the judicial branch, and only the judicial branch, would be authorized to promulgate rules regulating court procedure. Some writers have taken Wigmore's argument as jeu d'esprit while another has taken it as a serious attempt to justify the judiciary's exercise of a complete and exclusive rule-making power. However, the better interpretation of Wigmore's editorial would seem to be that he was pointing up the supremacy of judicially created rules of practice and procedure in the event of conflict with legislative rules and refuting the legislators who argued that rule making was a legislative power and could not constitutionally be delegated to the judicial branch.

As interpreted by Dean Pound, Wigmore's proposition was that "if every power exercisable in government must go exclusively and as a whole into one of the three categories, the power of making detailed rules of legal procedure is analytically judicial--it is inherent in the exercise of the power committed to the judiciary of determining controversies and applying laws." It is submitted that Wigmore was underlining the fallacy of a strictly logical chain of reasoning as concerns the classification of those powers exercisable by the three branches of government. In this connection it should be remembered that political science has also abandoned the theory of complete and exclusive authority over precisely delineated spheres of activity. It is well established that the operational areas of everyday governmental functions are not defined with precision and are not capable of assignment to distinctive categories; instead there is and always has been a twilight zone of indefinition, wherein the functions and activities of the three branches overlap and conflict, and wherein cooperation among the three branches has been the key to the resolution of the conceptual puzzle. Therefore, it is submitted that while a purely theoretical argument can be made for total and exclusive possession of the rule-making power by the judiciary, such a position ignores the realities of practical operational techniques necessarily utilized in government and presumes that a total separation of powers is possible. The conclusion should rather be that theory must give way to reality. It must be recognized that there are areas in which it is not clear whether the legislature or the judiciary should establish the necessary rules.

Thus, while it is clear that courts possess rule-making power, the scope of the power cannot be defined until we determine the purpose of the questioned rule. If the purpose of the rule is to permit a court to function efficiently, the rule-making power is supreme unless its impact conflicts with a fixed public policy which has been legislatively or constitutionally adopted and has at its basis something other than court administration. When the purpose of the rule is to provide for the establishment or maintenance of the efficient administration of judicial business, and it does only that, the scope of the power vested in the courts is complete and supreme. However, until an area of practice or procedure is preempted by rules of court, we will give full effect to legislation. This will allow a healthy and orderly development of procedural reform.

The statute at issue involves procedure and evidence, but it deals with a subject which we have not preempted, videotape depositions of young victims of sexual crimes. Accordingly, the statute is not an unconstitutional violation of the separation of powers doctrine.

For his next assignment of error, the appellant contends that the trial court erred in refusing to permit him to voir dire the young victim prior to her testifying on direct examination. There is no merit to the argument under the facts of this case. Here, the qualification as to competency and the testimony was videotaped out of the presence of the jury. It was to be shown to the jury when the case was tried. At the videotaping session, after the trial court ruled that the victim was competent to testify, the appellant asked to voir dire the witness. The trial court denied the request but stated that appellant could ask the same questions going to competency on cross-examination. During cross-examination appellant conducted voir dire by asking questions going to the witness's qualification to testify. After appellant's cross-examination, the court again ruled that the witness was competent. Appellant did not object to the jury viewing the voir dire portions of the videotape. Under these facts, there is no error. The jury did not hear the taped testimony until appellant had completed his cross-examination and the trial court had ruled the witness competent.

Appellant next argues that the victim should not have been allowed to testify because she was incompetent as a matter of law. This argument is also without merit. As we explained in Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989):

A trial court must begin with the presumption that every person is competent to be a witness. A.R.E. Rule 601. The burden of persuasion is upon the party alleging that the potential witness is incompetent. To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard.... The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal....

Appellant's argument focuses primarily upon the first two factors listed above. While it is true that the victim stated that she did not know what a lie was, nor what happens to a person...