Morris v. State, CA

• Decision Date: 17 June 1987
• Docket Number: No. CA,CA
• Citation: 21 Ark.App. 228,731 S.W.2d 230
• Parties: Jane MORRIS, Appellant, v. STATE of Arkansas, Appellee. CR 87-17.
• Court: Arkansas Court of Appeals

Page 230

731 S.W.2d 230

21 Ark.App. 228

Jane MORRIS, Appellant, v.STATE of Arkansas, Appellee.

No. CA CR 87-17.

Court of Appeals of Arkansas Division I.

June 17, 1987.

Rehearing Denied July 8, 1987.

Anchor & Rosenzweig by Jeff Rosenzweig, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

COOPER, Judge.

The appellant in this criminal case was charged with arson after the fire which destroyed her home was investigated by insurance representatives, the Pulaski County Sheriff's Department, and the Arkansas State Police.After a jury trial, she was convicted of that charge and sentenced to seven years in the Arkansas Department of Correction.From that conviction, comes this appeal.

For reversal, the appellant contends that the trial court erred in admitting testimony to show that, during a recess at trial, the appellant asked a witness to change his testimony.She also asserts that the trial court erred in allowing testimony concerning scientific tests by a witness who was not present when the tests were performed.We find no error, and we affirm.

With respect to the appellant's contention concerning the admission of testimony that she attempted to influence a witness to change his testimony, the appellant first argues that, under A.R.E. Rule 403, the trial court abused his discretion in admitting the testimony.We disagree.Evidence of other crimes is admissible under ARE Rule 404(b) if the evidence is independently relevant, and the probative value of the evidence outweighs the dangers of unfair prejudice under ARE Rule 403.Smith v. State, 19 Ark.App. 188, 718 S.W.2d 475(1986).We think that these criteria were met in the case at bar.

The record indicates that the State called John Paul Proffitt as a witness.Proffitt testified that, about one month before the fire, the appellant offered to pay him to set fire to her house, but he refused.He further stated that he visited the appellant at her house on the day of the fire, and that he subsequently accompanied the appellant to her father's house, which was next door to that of the appellant; the appellant then went outside for a few minutes, leaving Proffitt in her father's house.The appellant's father then drove up to his house, and the appellant told Proffitt to go into the back bedroom so that her father would not see him.Proffitt then related that, within minutes of his entering the back bedroom, he heard the appellant exclaim that her house was on fire.He also testified that the appellant later told him that she set fire to her house herself, but that she subsequently accused him of setting the fire.Finally, Proffitt stated that he and the appellant had been in an elevator together during a recess at trial, and that she attempted to influence him to change his testimony, as reflected by the following excerpt from the record:

Q And what was the--What do you say Jane Morris said to you?

A She asked me what I was going to say.And I said, "the truth."And she said, "Like what"?And I said, "Like, for instance, that I'm going to tell them that me and James was [sic] in the back bedroom when your Daddy pulled up."And she said, "No. No. Tell them you was [sic] walking down the road."

Proffitt's location during the minutes immediately prior to the outbreak of the fire was a relevant consideration, because the jury could infer from Proffitt's testimony that the appellant had placed Proffitt in the bedroom so that she could return to her house and set the fire.Moreover, if Proffitt had testified that he was walking down the road when the fire started, the appellant's accusation of Proffitt as the person who started the fire would have been more plausible.Under these circumstances, we think that his testimony concerning the conversation in the elevator possesses independent relevance, for it tends to show the appellant's knowledge of her own guilt, from which it may be inferred that she was the person who committed the crime.SeePoole v. State, 262 Ark. 4, 552 S.W.2d 647(1977);see alsoE. Inwinkelried, Uncharged Misconduct Evidence§ 3:04(1984).Nor do we think that the trial court erred in failing to exclude Proffitt's testimony regarding the conversation under ARE Rule 403.The State was required to prove that the appellant set the fire intentionally, and the disputed testimony has a direct bearing on her knowledge and intent.Moreover, the disputed testimony was not of such character as to arouse undue hostility in the jury.SeeMcCormick on Evidence § 490 at 565(3d ed. 1984).Under these circumstances, we hold that the trial court did not abuse his discretion in admitting Proffitt's testimony.

The appellant also argues that the trial court's admission of Proffitt's testimony concerning witness tampering was erroneous because her attorney could have rebutted that testimony had he been permitted to testify; thus, she argues, she was deprived of her right to defend herself.We find no merit in this contention.The record indicates that the attorney's rebuttal testimony would have been that he had been with the appellant at various times during the day that the alleged tampering was said to have occurred.He did not claim that he had been with the appellant at all times while she was in the courthouse; nor did he claim to have been in an elevator with the appellant and Proffitt on the day in question.Moreover, the appellant's attorney did not request permission to testify, nor did he move to withdraw as the appellant's attorney, for a mistrial, or request a continuance.Instead, his position...