Fells v. State
| Decision Date | 21 April 2005 |
| Docket Number | No. CR 04-1237.,CR 04-1237. |
| Citation | 207 S.W.3d 498 |
| Parties | Korey FELLS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
J. Leon Johnson, Little Rock, for appellant.
Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.
Korey Fells was convicted in the Pulaski County Circuit Court of the rape of S.H. and sentenced to a term of eighteen years. On appeal, Fells argues that the trial court erred in (1) refusing to allow him to cross-examine a witness using a police case summary, (2) refusing to allow the defense to present evidence that the rape victim had tested positive for the human immunodeficiency virus (HIV), and (3) admitting the testimony of the alleged victim of an earlier rape by Fells. We affirm.
S.H., the rape victim, testified that on February 3, 2002, Super Bowl Sunday, she was standing in the entrance to the Shorter Gardens housing project when Fells drove up and beckoned to her. When S.H. approached his car, he rolled down his window and asked if he knew her. The two then talked for about twenty to thirty minutes. S.H. mentioned that she was hungry, and he offered to drive her to a gas station so that she could get something to eat. Fells complimented S.H. on her physical appearance, and he portrayed himself as a trustworthy friend in whom she could confide. On the way to the gas station, he asked S.H. if she wanted to drive with him so that they could watch the Super Bowl on his car's television and S.H. could finish talking about her problems. S.H. agreed. He drove several miles and parked in an area with which S.H. was unfamiliar. While they drove, S.H. told Fells that she was pregnant and had suffered complications from her pregnancy earlier that day. She also told him that there were warrants out for her arrest and that she had few friends and nowhere to go. Fells parked his car, and the two sat in the backseat so that they could watch the Super Bowl. He then began to grope S.H. When she protested, he threatened to leave her to find her own way home. S.H. testified that she then feared for her life and the life of her unborn child, and she submitted. Shortly thereafter, police officers approached the vehicle. Fells told the police that everything was fine, but S.H. said that she had been raped. He then told the officers S.H.'s name and that she had warrants out for her arrest. S.H. left with the police, and Fells was eventually charged with rape.
Just before trial, the State moved in limine to prevent Fells from questioning S.H. regarding her HIV-positive status. The court granted the State's motion. Fells and S.H. testified at trial, as did R.B., the alleged victim of an earlier rape by Fells. Fells moved to exclude R.B.'s testimony on the grounds that its only purpose was to portray him as a criminal character, but the court determined that the testimony was admissible under Rule 404(b) as evidence of modus operandi. After R.B. testified that she had felt threatened by Fells, his attorney attempted to cross-examine her by reading a police case summary in which a detective noted that R.B. had told him that Fells had not threatened her in any way. The jury found Fells guilty of rape, and the trial court entered judgment on September 17, 2003.
The court of appeals reversed Fells's conviction, holding that Fells should have been able to present evidence that S.H. was HIV-positive and that R.B.'s testimony should have been excluded. We now affirm the trial court and reverse the court of appeals.
Upon petition to review a decision of the court of appeals, this court reviews the case as if it had originally been filed in this court. Hence, this court's review centers on the trial court's decision, not on the decision of the court of appeals. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).
Fells disputes three of the trial court's evidentiary rulings. The admission or rejection of testimony is a matter within the trial court's sound discretion and will not be reversed on appeal absent a manifest abuse of that discretion and a showing of prejudice to the defendant. Ellison v. State, 354 Ark. 340, 123 S.W.3d 874 (2003).
Cross-Examination of R.B.
At trial, the State called as a witness R.B., the alleged victim of an earlier rape by Fells, who testified that Fells had threatened her during the incident. Fells's attorney attempted to cross-examine R.B. as follows:
Q. Did you at any time tell Detective Massiet, "At no time did Mr. Fells threaten her safety," [her] meaning you, "in any way to have sex?"
A. Say that again, I'm sorry.
Q. Did you tell Detective Massiet—and I'm going to read this verbatim.
A. Uh-huh.
Q. [R.B.] said at no time did Mr. Fells threaten her safety in any way to have sex.
The State immediately objected that this line of questioning was based on inadmissible hearsay; Fells was attempting to use Detective Massiet's out-of-court statement to prove that R.B. had not been threatened by Fells. The trial court sustained the State's objection. Fells now argues that Detective Massiet's case notes should have been admitted under Ark. R. Evid. 801(d)(1) (2004), because he was using them to impeach R.B.'s credibility.
Rule 801(d)(1) excludes from the definition of hearsay a witness's prior inconsistent statement if the statement, when offered in a criminal proceeding, "was given under oath and subject to the penalty of perjury." The proffered statement does not fall under the hearsay exception of Rule 801(d). It is a statement made by a police detective, not R.B., nor is it a statement that was given under oath and subject to the penalty of perjury. The trial court did not err in excluding this piece of testimony.
Fells next argues that the trial court erred in refusing to allow him to present evidence that the rape victim, S.H., was HIV-positive. He contends that this evidence was admissible because it showed that S.H. had a motive to lie about being raped. According to Fells, because it is a crime for a person to knowingly expose another to HIV, S.H. "knew that if she did not say she was raped, it would be consensual sex and she'd be charged with a crime."
Under Arkansas's rape-shield statute, Ark.Code Ann. § 16-42-101 (Repl.1999), evidence of a victim's prior sexual conduct may be introduced at trial only after the proponent of the evidence has first filed a written motion explaining its relevance, and after the court has held a hearing and determined that the evidence is more probative than prejudicial. Although Fells admits that he did not comply with the required procedures, he argues that the information was not subject to the rape-shield law because it did not address any prior sexual activity, merely the fact that S.H. was HIV-positive.
The issue of whether a victim's HIV status falls under the purview of the rape-shield statute is one of first impression. We hold that the HIV status of a rape victim is protected under Arkansas's rape-shield statute. The statute prohibits the use of past sexual behavior to embarrass and degrade victims; its purpose is to shield rape victims from public humiliation. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). While it is possible to contract HIV through blood transfusions or other means, the public generally views it as a sexually-transmitted disease. In the minds of the jurors, evidence that S.H. was HIV-positive would be tantamount to evidence of her prior sexual behavior.
One should not conclude, as the dissent suggests, that a defendant can never present evidence of a rape victim's HIV status when that evidence is relevant to a defense at trial.
On the contrary, the rape-shield statute specifically contemplates the admission of such evidence, once the required procedures have been followed and the trial court has determined that the evidence is more probative than prejudicial. Fells did not comply with the rape-shield statute's procedures: he never filed the required motion, and he never gave the trial court the opportunity to hold a hearing and determine if the probative value of the HIV evidence was outweighed by its highly prejudicial effect. Had he done so, it is possible that the trial court would have allowed the evidence to be admitted. Because HIV status is protected under the rape-shield statute, however, Fells's failure to follow the required procedures means that the evidence was properly excluded.
Fells's final argument is that the trial court abused its discretion in denying his motion to exclude the testimony of R.B., the alleged victim of an earlier rape by him. R.B. testified that she first met Fells when he drove up to her while she was standing in a parking lot outside a free medical clinic. He called R.B. over to his car, ostensibly because he thought she was someone he knew, and the two then talked for about twenty to thirty minutes. Fells portrayed himself as a helpful, trustworthy friend, and he repeatedly complimented R.B. on her clothes, demeanor, and physical appearance. While they were talking, he learned that R.B. was waiting for her boyfriend to pick her up and that she was looking for a job. He offered to give her a ride and asked for her cell phone number so that he could get in touch with her about a job opening at the airport. He asked R.B. if she was hungry, and he bought her a meal. A few days later, Fells called R.B. and suggested that they meet so that he could give her a job application. Once they were together, Fells said that he had set up an interview, and he took R.B. to the house that she shared with her boyfriend so that she could change into more appropriate clothing. He followed R.B. into the bedroom where she was changing clothes, and he began to touch her and make suggestive comments. When R.B. protested, Fells threatened to tell her boyfriend that she had had sex with him and another man and to...
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