Kitchen v. State, CR

• Decision Date: 10 November 1980
• Docket Number: No. CR,CR
• Citation: 607 S.W.2d 345,271 Ark. 1
• Parties: Kozy KITCHEN, Appellant, v. STATE of Arkansas, Appellee. 80-66.
• Court: Arkansas Supreme Court

Page 345

607 S.W.2d 345

271 Ark. 1

Kozy KITCHEN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-66.

Supreme Court of Arkansas.

Nov. 10, 1980.

Steven G. Howard and Gerald W. Carlyle, Newport, for appellant.

Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Chief Justice.

Appellant Kozy Kitchen was found guilty of rape, carnal abuse in the first degree and carnal abuse in the third degree. His conviction was reversed by this court on November 13, 1978, because of error in the summoning of the jury. Kitchen v. State, 264 Ark. 579, 572 S.W.2d 839. Thereafter, venue was changed from Jackson County to Lawrence County. After a jury trial on January 27, 1979, appellant was sentenced to a total of 49 years imprisonment pursuant to the jury's verdict finding him guilty on all three charges. Appellant asserts the following points for reversal:

I

THE LOWER COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR PSYCHIATRIC EXAMINATION OF PROSECUTION WITNESS.

II

THE LOWER COURT ERRED IN DENYING THE DEFENDANT'S MOTION IN LIMINE TO SUPPRESS TESTIMONY.

III

THE LOWER COURT ERRED BY INTERJECTING ITSELF INTO THE TRIAL TO SUCH A DEGREE THAT IT PREJUDICED THE APPELLANT.

IV

THE VERDICT OF THE JURY WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

V

THE LOWER COURT ERRED IN SEVERAL RULINGS ON THE EVIDENCE WHICH SINGULARLY AND CONSIDERED AS A WHOLE AFFECTED SUBSTANTIAL RIGHTS OF THE DEFENDANT.

We find reversible error.

We will first treat appellant's last point, because we find reversible error on one ruling on the admissibility of evidence, which, as we see it, affected a substantial right of appellant.

VI

The principal witnesses against appellant were his wife, Daisy, and her three daughters, the alleged victims of the sexual crimes with which appellant was charged. The credibility of these witnesses was probably the most important issue in the case. Appellant called Richard Allen, an attorney, who was the deputy prosecuting attorney who had participated in appellant's first trial and who had conversed with Daisy Kitchen and at least one of her three daughters. Appellant's counsel examined Allen about occasions when Mrs. Kitchen had brought the girls to his office and wanted to change the stories they had earlier told accusing Kitchen of the crimes with which he was charged. These stories had been told under oath in the juvenile court when Arkansas Social Services had brought a proceeding to take custody of the three girls. Appellant also brought out on direct examination that Allen had explained the penalties of perjury to Mrs. Kitchen and whichever of her daughters were present when he was told they wanted to change their testimony. On cross-examination, the state's attorney elicited testimony that he had heard Mrs. Kitchen and the three girls testify during the trial, in several hearings in Newport, and in the hearing in the Juvenile Court of Jackson County. The state then elicited from Allen the statement that these four witnesses had told essentially the same story each time they had testified under oath. Appellant's counsel objected on the ground that the state was trying to rehabilitate its witnesses by use of prior consistent statements. The objection was well taken. The prior consistent statements were hearsay. Ark.Stat.Ann. § 28-1001, Rule 801(c) (Repl.1979). They could be admissible as an exception to the hearsay rule if they were offered to rebut an express or implied charge of recent fabrication or improper influence or motive. Ark.Stat.Ann. § 28-1001, Rule 801(d)(1)(ii). There is no doubt about appellant's efforts to show that these witnesses had fabricated their accusations and that their motives were improper. Still, there is nothing to indicate that there could have been any fabrication subsequent to the juvenile court hearing or that the motive of these witnesses was any different at the time of the second trial than it had been at any of the previous hearings. A highly regarded authority has taken the position that, where the attack on the witness is by inconsistent statements, the proof of a consistent statement is admissible only if it was made before the plan or contrivance to give false testimony was formed. According to this authority, the fabrication is not required to be recent as related to the trial, but it is necessary that the contrivance be more recent than the consistent statement. We have followed this interpretation in our first decision on the point since the adoption of the Arkansas Uniform Rules of Evidence. In Brown v. State, 262 Ark. 298, 556 S.W.2d 418, we held that the word "recent," describing the fabrication is a relative term meaning that the challenged testimony was fabricated to meet the exigencies of the case (not the trial). Under the Brown interpretation, the prior consistent statements of these witnesses were not admissible because the motive for fabrication was as great when the first statement was made as when the testimony was given. See George v. State, 270 Ark. ---, 604 S.W.2d 940 (1980). We cannot say that the error did not affect a substantial right of appellant because the testimony of these witnesses was essential to his conviction and the evidence to corroborate them was, to say the least, slight. We will consider all other contentions made by appellant under the broad coverage of this point and under the other points stated by appellant we consider likely to arise on a retrial.

Appellant contends that testimony that he ejaculated into the mouths of the girls was irrelevant because this testimony was not necessary to show the essential element of the crimes-penetration of a body cavity of the victim by a penis. We note that appellant made no objection to that testimony by two of the girls. Although appellant says that under Ark.Stat.Ann. § 28-1001, Rule 103(d) (Repl.1979), we may take notice of errors in admission of evidence if they affect substantial rights, even though they were not called to the attention of the trial court, we do not. Wicks v. State, 270 Ark. --- (30 October 1980), 606 S.W.2d 366.

The relevance is not outweighed by the inflammatory nature of the testimony by reason of the explanation given by the witnesses for the conduct of appellant. They testified similarly. According to them, appellant expressed the desire to adopt the daughters of his wife "as his blood kin" or "through his bloodline," not by legal means, and wanted to change the Wilson nature, which he did not like, to the Kitchen nature. Mrs. Kitchen explained that this meant that each of the children had to take his sperm in her mouth and swallow it in order to be a Kitchen, and that this explanation was made to each of the children. All this testimony was relevant to the issues. We will treat this matter further when we consider appellant's point II.

Appellant says that the court erred in permitting Daisy Kitchen to testify about whippings of her and the three minor girls. His objection was that the testimony was not relevant, but if relevant, its probative value was outweighed by its inflammatory nature.

The matter of the whippings was brought out on cross-examination of Daisy Kitchen. Appellant's counsel had examined this witness about her statements that her accusations were not true, her love for appellant, her having written letters to him after he was imprisoned professing her love for him, her fear of appellant, appellant's desire that a baby born to them be brought up by his first wife, her delay in reporting the sexual offenses and her visits to appellant at Cummins Prison. After extensive examination along these lines, appellant's counsel questioned her about a letter, which she said she had written at appellant's dictation and, when asked why she had written it, explained that it was because of her fear that appellant's friends would kill her if she did not. Thereafter, appellant's counsel presented her with another letter she had written expressing affection and she read it to the jury at his request. In this letter, Mrs. Kitchen had said that she was "so scared" of appellant before their baby was born and that his whippings were not like the kind she had had when she was a little girl. It also contained a statement that he had caused the girls to whip one another and to whip her. Appellant offered this letter in evidence. Another letter was introduced in which Mrs. Kitchen had asked appellant to forgive her for the terrible lies she had told and had had the girls tell, about his having engaged in sexual activity with them. Appellant's counsel, after having the witness confirm that she had testified that she did not love appellant and was afraid of him, obtained an admission from her that she had engaged in sexual intercourse with appellant in the Jackson County Jail. When asked why, she stated that she was afraid not to do what he told her to because of his previous threats and something else that had happened.

On redirect examination, Mrs. Kitchen was asked to explain the statement in her letter to appellant about whippings. She then told about appellant making the girls strip naked and whip each other for something they had done or failed to do or for failure to answer questions as he desired them to. She also told of his having whipped her with a belt or shoe and of making her strip naked, except for her panties, while she was pregnant, and causing the children to whip her on her hands and knees and making her go up and down the hall, while the children chased and whipped her. She was then asked why she had written the letters and responded by saying that it was because of her fear of the whippings and knowledge of what would happen if she did not and because appellant had told her that if she did anything to cause him to go to prison, he would make sure that she went, too.

Appellant opened up the subject of the whippings at his own risk. Parker v. State, 265 Ark. 315, 578 S.W.2d 206. The basic...