Holland v. State , 471 S.W.3d 179 ( 2015 )

Cite as 2015 Ark. 341SUPREME COURT OF ARKANSAS
No. CR-14-1019
ANDREW M. HOLLAND Opinion Delivered October 1, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60-CR-11-1159]
STATE OF ARKANSAS HONORABLE BARRY SIMS, JUDGE
APPELLEE
AFFIRMED.
COURTNEY HUDSON GOODSON, Associate Justice
A jury in the Pulaski County Circuit Court found appellant Andrew M. Holland
guilty of sexual assault in the first degree and sexual assault in the second degree.
Respectively, he received concurrent terms of forty and thirty years in prison. For reversal,
Holland contends that the circuit court erred by (1) permitting the introduction of evidence
under the “pedophile exception”; (2) by not allowing evidence of the victims’ motives to
falsely accuse him of the crimes; and (3) by denying him access to one of the victim’s
psychological records. We affirm on all issues.
Factual Background
By an amended felony information, the prosecuting attorney in Pulaski County
charged Holland with one count of first-degree sexual assault as perpetrated against a minor,
XB, and with a single count of second-degree sexual assault as committed against another
minor, JD. The evidence adduced at trial reflects that both boys were being raised in single-
Cite as 2015 Ark. 341parent homes by their mothers. In the case of XB, Holland was a long-time family
acquaintance, and XB’s mother enlisted Holland’s assistance in providing discipline to XB
after he began to experience behavioral problems. With respect to JD, he developed an
interest in rap music when he was in the eighth grade. Holland had a recording studio in his
home and had cultivated the musical careers of other young rap artists. JD solicited Holland’s
services as a manager, and Holland agreed to do so after speaking with JD’s mother. Under
Holland’s tutelage, JD performed shows in Little Rock and Conway. Holland also
chaperoned JD and another boy on a trip to New York to audition for a television show.
XB, who was twenty years old at the time of trial, testified that, between the ages of
thirteen and fifteen and at a time when he was getting into trouble at school, he was at
Holland’s house one day watching television when Holland asked him to come into his
bedroom. XB said that Holland directed him to sit on Holland’s knee and that Holland began
rubbing XB’s leg. XB recalled that Holland next placed a pornographic movie into the DVD
player and told XB to remove his clothes and get into the bed. Holland also undressed and
lay behind XB under the covers. XB testified that Holland fondled XB’s penis, and XB stated
that he felt the head of Holland’s penis inside his “butt.” XB said that, while this was
occurring, a lot of thoughts were going through his mind and that he did not understand what
was happening. XB stated that Holland commented on the large size of XB’s penis. XB
further testified that he returned to the living room and that Holland gave him a bottle of
lotion to use to “finish up.” A few years later, XB was adjudicated as a delinquent juvenile
for committing the offenses of commercial burglary and theft of property. He disclosed the
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Cite as 2015 Ark. 341abuse to the leader of a group home in February 2010.
In his testimony, JD related that he was fifteen years old when he met Holland in July
2010. He said that Holland began randomly touching him and rubbing his thighs almost
immediately after he had begun to visit Holland’s home. JD testified that the touching
escalated shortly thereafter when Holland asked him to sit on his bed. He stated that Holland
kissed him on his cheek and neck and that Holland put his hand inside JD’s underwear and
felt his penis for approximately fifteen minutes. JD testified that Holland stated, “My little
homey has a big dick,” when he reached inside JD’s underwear. JD testified that similar
behavior occurred on a number of occasions. He also said that Holland would sometimes
place JD’s hand on Holland’s penis, both outside and under Holland’s clothes, and that
Holland had shown him pornographic images of penises on his laptop.
JD further testified that he learned of another accusation against Holland from reading
a newspaper article in March 2011 and that Holland stopped managing him during that time
frame. He also acknowledged that he was placed in Rivendell after an altercation with his
mother in October 2011. JD testified that he disclosed the abuse when answering questions
during the intake process at Rivendell in November 2011 when he was moved into long-
term care at that facility.
In addition to the victims, the State offered the testimony of MJ; the testimony of two
men from California, JG and JP; and a 1989 probation order from California reflecting
Holland’s conviction on two counts of “Lewd/Lascivious Acts with Child under 14 Years.”
The victims in that case were JG and another boy, RR. MJ, a twenty-eight-year-old man
3
Cite as 2015 Ark. 341from North Little Rock, testified that when he was young, he and other boys spent time at
Holland’s house. He said that Holland paid him for helping with yard work. MJ testified that
in November 1999, when he was fourteen years old, he was walking home one night past
Holland’s house and that Holland invited him inside. According to MJ, Holland turned on
a pornographic movie, which caused MJ to have an erection. MJ said that Holland performed
oral sex on him and commented on the size of MJ’s penis. MJ stated that they went into the
bedroom and that Holland put lotion between his own legs and instructed MJ to lie on top
of him and to “hump” him, while Holland lay on his stomach. Afterwards, they changed
positions. MJ testified that Holland gave him money and told him not to tell anyone. MJ
further testified that he told his uncle what had happened and that he also spoke with the
police.
JG testified that he met Holland in California in 1988 when he was thirteen years old
and being raised by his mother. He was playing basketball one day when Holland approached
him and offered to buy him a new pair of shoes, as JG’s shoes had holes in them. JG said that
Holland gave him a ride home and that Holland told his mother that he would take JG under
his wing. One night after skating, JG spent the night with Holland. JG said that he was
asleep in bed and awoke to find Holland rubbing Icy Hot on his legs. JG testified that
Holland put lotion on his hands and started rubbing JG’s penis. When JG ejaculated, Holland
instructed JG to hold his own penis in his hand and say, “You’re Andy’s little king.” JG
described another incident when Holland took him to an empty apartment where Holland
tried to fondle JG using “Motion Lotion” as a lubricant. JG testified that he made Holland
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Cite as 2015 Ark. 341stop and that Holland became angry and threw money at him.
In his testimony, JP testified that he and Holland lived in the same apartment complex
and that Holland was one of the adults who played football with him and his friends. JP
stated that Holland also helped his grandmother, with whom JP lived, and that Holland
assumed the role of a father figure to him with his grandmother’s blessing. He said that, in
1988, Holland asked him to come over to play Nintendo. JP testified that Holland put on
a pornographic movie and asked JP if he could make his penis hard. JP said that Holland
began rubbing JP’s penis on top of his clothes and then asked him to unbuckle his pants and
go into the bedroom. JP saw that there were many types of lotions in Holland’s bedroom,
and he said that Holland masturbated him and made him masturbate Holland. JP said that this
was the first of many similar episodes. He further testified about an occasion where Holland
masturbated and performed oral sex on both him and another boy named RR and also
required them both to masturbate him. This incident took place at a boys’ group home
where Holland worked.
Based on this and other testimony, the jury found Holland guilty as charged and
sentenced him as previously stated in this opinion. Holland appealed, and the court of appeals
affirmed his convictions and sentences. Holland v. State, 2014 Ark. App. 644, 448 S.W.3d
220. This court granted Holland’s petition for review. When we grant a petition for review,
we treat the appeal as if it had been filed originally in this court. Schneider v. State, 2015 Ark.
152, 459 S.W.3d 296.
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Cite as 2015 Ark. 341Pedophile Exception
Holland argues on appeal that the circuit court erred by permitting evidence of prior
misconduct under the pedophile exception to Rule 404(b) of the Arkansas Rules of Evidence.
Under this point, Holland first challenges the testimony of MJ. He argues that evidence
admitted under Rule 404(b) is subject to the balancing test imposed by Rule 403, and he
maintains that MJ’s testimony was unfairly prejudicial because MJ’s allegation was brought to
the attention of law enforcement officials in 1999; because the allegations were investigated
and not brought to prosecution; because the statute of limitations has since expired; and
because he is not able to defend himself due to the passage of time. Holland also contends
that the testimony was unfairly prejudicial because MJ’s testimony was unreliable, as it was
shown on cross-examination that his testimony at trial materially differed from the statements
that MJ made to the police at the time of the occurrence.
Also within this point, Holland claims error in the admission of the testimony of JG
and JP, as well as Holland’s previous convictions in California. He contends that the evidence
was too remote in time and not sufficiently similar to the acts for which he was on trial.
Rule 404(b) provides that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
Evidence is not admissible under Rule 404(b) simply to show a prior bad act. Vance v. State,
2011 Ark. 243, 383 S.W.3d 325. In reviewing the admission of evidence under Rule 404(b),
6
Cite as 2015 Ark. 341this court has observed that a circuit court has broad discretion in deciding evidentiary issues,
and its decisions are not reversed absent an abuse of discretion. Rounsaville v. State, 2009 Ark.
479, 346 S.W.3d 289. The abuse-of-discretion standard is a high threshold that does not
simply require error in the circuit court’s decision, but requires that the circuit court act
improvidently, thoughtlessly, or without due consideration. Chatmon v. State, 2015 Ark. 28.
When the charge concerns the sexual abuse of a child, evidence of other crimes,
wrongs, or acts, such as sexual abuse of that child or other children, is admissible under the
“pedophile exception” to show motive, intent, or plan pursuant to Ark. R. Evid. 404(b).
Fields v. State, 2012 Ark. 353. We have approved allowing evidence of the defendant’s similar
acts with the same or other children when it is helpful in showing a proclivity for a specific
act with a person or class of persons with whom the defendant has an intimate relationship.
Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373. The rationale for this exception is that such
evidence helps to prove the depraved sexual instinct of the accused. Jeffries v. State, 2014 Ark.
239, 434 S.W.3d 889. Further, such proof is admissible to show the familiarity of the parties,
disposition, and antecedent conduct toward one another and to corroborate the testimony of
the victim. Fields, supra (citing Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987)). For the
pedophile exception to apply, we require that there be a sufficient degree of similarity
between the evidence to be introduced and the sexual conduct of the defendant. Eubanks v.
State, 2009 Ark. 170, 303 S.W.3d 450. We also require that there be an “intimate
relationship” between the perpetrator and the victim. Chunestudy v. State, 2012 Ark. 222, 408
S.W.3d 55.
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Cite as 2015 Ark. 341Evidence admitted pursuant to Rule 404(b) must not be too separated in time, making
the evidence unduly remote. Brown v. State, 2012 Ark. 399, 424 S.W.3d 288. The circuit
court is given sound discretion over the matter of remoteness and will be overturned only
when it is clear that the questioned evidence has no connection with any issue in the present
case. Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006).
Evidence to be admitted under the pedophile exception is also subject to exclusion
under Rule 403, which provides that relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice. See Hernandez v. State, 331 Ark.
301, 962 S.W.2d 756 (1998). We review a circuit court’s decision to admit evidence over
a Rule 403 objection under an abuse-of-discretion standard as well. Flanery v. State, 362 Ark.
311, 208 S.W.3d 187 (2005).
We hold that the circuit court did not abuse its discretion in ruling that MJ’s testimony
was not unfairly prejudicial even though no charges had been filed and because of the passage
of time. Rule 404(b) makes no distinction between substantiated and unsubstantiated
conduct, or between charged and uncharged conduct. Allen v. State, 374 Ark. 309, 287
S.W.3d 579 (2008). This court has explicitly held that our application of the pedophile
exception does not require that the prior act be charged or substantiated. Bell v. State, 371
Ark. 375, 266 S.W.3d 696 (2007). Furthermore, seven years had elapsed between the
incident involving MJ in 1999 and the acts concerning XB in 2006, and there was an eleven-
year difference in the case of JD. In Nelson, supra, we held that, even though the defendant’s
prior conviction was fourteen years old, the evidence tended to show his intent to commit
8
Cite as 2015 Ark. 341the charged crime and was therefore not too remote in time to be relevant. In so holding,
we observed that a reasonableness standard is used to determine whether a crime remains
relevant rather than a specific time limit. Accordingly, when considering remoteness in the
context of the pedophile exception in Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008),
we concluded that the charged acts and the acts the defendant committed some twenty years
earlier against his daughters were sufficiently similar to show his tendency for deviate sexual
impulses toward young girls such that the prior acts were not too remote in time to be
relevant. We conclude that the circuit court did not abuse its discretion.
As for Holland’s claim that MJ’s testimony was unreliable and thus unfairly prejudicial,
we note that Holland’s counsel conducted a thorough cross-examination of the witness and
exposed the inconsistencies between his testimony and the statements that he made to the
police in the past. These inconsistencies went to the weight of the testimony, rather than its
admissibility, and the veracity of the witness’s testimony was for the jury to assess. Harris v.
State, 331 Ark. 353, 961 S.W.2d 737 (1998) (observing that the resolution of issues of
credibility and conflicting versions of facts rests with the trier of fact).1
We also find no abuse of discretion in the admission of the testimony of JG, JP, and
Holland’s prior convictions. Contrary to Holland’s assertion, the similarity between these past
1
We also note that Holland asserts a due-process claim with respect to MJ’s testimony.
Although Holland raised this contention in his motion in limine to exclude MJ’s testimony,
he failed to develop that argument or to obtain a ruling on this issue. Consequently, we
decline to address this point. This court has stated that the circuit court must have the
benefit of the development of the law by the parties in order to rule adequately on the issues,
and it is incumbent upon an appellant to obtain a ruling from the circuit court in order to
preserve an argument for appeal. Gooch v. State, 2015 Ark. 227, 463 S.W.3d 296.
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Cite as 2015 Ark. 341acts of misconduct and the facts of the present case was striking. While the acts may have
differed somewhat from victim to victim, the behavior included Holland’s touching the boys’
penises, requiring the boys to fondle him, forcing oral sex, as well as simulating intercourse.
Clearly, these acts were sufficiently similar to pass muster under the pedophile exception.
Furthermore, the evidence revealed Holland’s penchant for befriending boys in their mid-
teens who were being raised in single-parent homes by their mothers or grandmothers
without a father figure. Holland sought to fill that gap by gaining the confidence of the boys’
caretakers and by fostering a relationship with the young boys to either step into the role of
mentor or disciplinarian. These acts occurred in Holland’s home or a place under his control.
Holland also made similar crude remarks about the young boys’ anatomy, utilized
pornography, and frequently used lotions to accomplish his purposes. The evidence thus
clearly demonstrates that the acts were of a same or similar nature and that he had an intimate
relationship with these children. As for the passage of time, applying our standard of
reasonableness, the past acts were not too remote in time to be irrelevant. The circuit court
did not abuse its discretion by ruling that the evidence was admissible under the pedophile
exception. Accordingly, we affirm on this point.
Rape-Shield Statute
Holland next argues that the circuit court erred by excluding evidence under the rape-
shield statute that he claims has a bearing on XB’s and JD’s motive to accuse him of the
crimes. Holland filed a pretrial motion proposing to offer evidence that XB had an abscess
on his penis at the time he disclosed the abuse to the group leader. Holland argued that XB’s
10
Cite as 2015 Ark. 341condition may have been caused by sexual contact, and he asserted that the diagnosis and the
embarrassment it caused motivated XB to falsely accuse Holland of the abuse. Holland also
filed a pretrial motion to present testimony that JD engaged in homosexual contact with other
persons and that, when faced with family criticism, JD had acted in a sexually active manner
to disprove allegations that he was a homosexual. Based on this assertion, Holland contended
that JD accused him of impropriety in an effort to prove that he was not gay.
The rape-shield statute provides that evidence of specific instances of the victim’s prior
sexual conduct with any person is not admissible by the defendant, either through direct
examination of any witness or through cross-examination of the victim or other prosecution
witness, to attack the credibility of the victim or for any other purpose. Ark. Code Ann. § 16-
42-101(b) (Repl. 1999). An exception is granted where the circuit court, at an in camera
hearing, makes a written determination that such evidence is relevant to a fact in issue and that
its probative value outweighs its inflammatory or prejudicial nature. Stewart v. State, 2012
Ark. 349, 423 S.W.3d 69. The statute’s purpose is to shield victims of rape or sexual abuse
from the humiliation of having their personal conduct, unrelated to the pending charges,
paraded before the jury and the public when such conduct is irrelevant to the defendant’s
guilt. McCoy v. State, 2010 Ark. 373, 370 S.W.3d 241. The circuit court is vested with a
great deal of discretion in determining whether the evidence is relevant, and we will not
overturn the circuit court’s decision unless it constitutes clear error or a manifest abuse of
discretion. Woodall v. State, 2011 Ark. 22, 376 S.W.3d 408.
In making this argument, Holland relies on our decision in Marion v. State, 267 Ark.
11Cite as 2015 Ark. 341345, 590 S.W.2d 288 (1979). There, Marion’s defense to the rape charge was that no sexual
intercourse occurred between him and the victim on the alleged occasion. He proffered
evidence that the charge against him was made by the victim because of a fight they had as
a result of his contracting a venereal disease from her. At the time of the fight, the victim
threatened that “she would get even with him,” and Marion alleged that the charges were
filed as a result of that threat. Under those circumstances, we held that the victim’s bias,
prejudice, or ulterior motive for filing the charge was relevant to the question whether the
alleged act of sexual intercourse actually occurred and that the probative value of the evidence
outweighed its inflammatory or prejudicial nature.
We have since emphasized that evidence of an alleged victim’s motive or bias is
admissible only when it is relevant and its probative value outweighs its prejudicial nature.
Jackson v. State, 368 Ark. 610, 249 S.W.3d 127 (2007). Having examined the proof offered
in this case, we cannot say that the circuit court abused its discretion by excluding the
evidence, as the probative value of the evidence was slight, and even remote, compared to the
prejudicial nature of the evidence. We find no error.
Psychotherapist/Patient Privilege
As his last point on appeal, Holland argues that the circuit court’s ruling denying him
access to JD’s records of treatment violated his constitutional rights of confrontation and due
process. He contends that the psychotherapist/patient privilege granted by our court rules is
overcome by these constitutional guarantees. Further, he asserts that any error in the circuit
court’s ruling is not harmless.
12
Cite as 2015 Ark. 341This issue arose in the following manner. At a pretrial hearing on the Rule 404(b) and
rape-shield evidence, JD testified on cross-examination by Holland’s counsel that he had been
transported by the police and admitted to Rivendell following an argument with his mother.
When asked whom he first told about the abuse, JD responded that his initial disclosure was
made to an admissions nurse during the intake process at Rivendell. Holland subsequently
filed a motion seeking the production of JD’s mental-health records. At a hearing, Holland
asserted that he was entitled to the records because JD had testified that he had revealed the
abuse during the intake process, whereas he had said in previous statements to the police that
he had first disclosed the information to a therapist. Holland argued that the records might
contain information to impeach JD’s testimony on the timing of the disclosure. In response,
the State argued that the materials were privileged.
Based on Holland’s motion, the circuit court had conducted an in-camera review of
JD’s records from Rivendell and reported to the parties that the records contained no
exculpatory information. Holland then asked the court whether it had reviewed the records
to note each time JD had responded to a question concerning whether he had a history of
sexual abuse. The court said that it had not reviewed the records with an eye for that
information, but it agreed to do so. Later that day, the court reconvened the hearing and
advised the parties that the integrated risk forms from JD’s admissions in August, October, and
November 2011 stated that the “patient has never been abused.” Holland inquired whether
the records contained anything to indicate JD’s tendency to be untruthful. The circuit court
stated that the records contained no such information. Holland then asked for the production
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Cite as 2015 Ark. 341of the records on the ground that they contained exculpatory material. Holland explained
that his defense was that JD had a motive to fabricate the allegation in order to extricate
himself from being in trouble. The court took the issue under advisement. At a subsequent
hearing six months later, Holland renewed his motion for the production of JD’s records from
Rivendell. The circuit court denied that request.
Holland asserts that the circuit court erred in its ruling. The State responds that
Holland’s argument is foreclosed by our decision in Johnson v. State, 342 Ark. 186, 27 S.W.3d
405 (2000) (Johnson II). Holland maintains that the decision in Pennsylvania v. Ritchie, 480
U.S. 39 (1987), compels a different result.
We begin with the psychotherapist/patient privilege that is set forth in Rule 503(b)
of the Arkansas Rules of Evidence:
General Rule of Privilege. A patient has a privilege to refuse to disclose and
to prevent any other person from disclosing his medical records or confidential
communications made for the purpose of diagnosis or treatment of his physical,
mental or emotional condition, including alcohol or drug addiction, among
himself, physician or psychotherapist, and persons who are participating in the
diagnosis or treatment under the direction of the physician or psychotherapist,
including members of the patient’s family.
This privilege applies in both criminal and civil cases, and is inapplicable only when
proceedings are initiated to hospitalize a patient for mental illness, when a mental examination
is ordered by the court, or when a patient relies on his or her physical, mental, or emotional
condition as an element of his or her claim or defense. Ark. R. Evid. 503(d); Johnson II, supra.
The psychotherapist/patient privilege was at issue in Johnson II, supra. In that case, a
six-year-old child had witnessed her mother’s murder, and she received therapy to deal with
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Cite as 2015 Ark. 341that traumatic event. At Johnson’s first trial, she waived the psychotherapist/patient privilege
to allow access to her treatment records, and the circuit court considered her incompetent to
testify. Johnson was convicted and sentenced to death, and this court reversed. Johnson v.
State, 326 Ark. 430, 934 S.W.2d 179 (1996) (Johnson I). At the time of retrial, the circuit
court found that the child was competent as a witness, and she testified at the second trial.
Before that trial, the child had seen a different therapist, and she asserted the
psychotherapist/patient privilege to preclude the disclosure of her records associated with her
new therapist. Johnson argued that he was entitled to the records pursuant to his right to
present a defense, contending that the denial of access deprived him of the ability to test her
veracity both in cross-examination and in the presentation of impeachment evidence. He
claimed that his constitutional right to present a defense superseded the
psychotherapist/patient privilege. The circuit court disagreed, and Johnson was again
convicted and sentenced to death. This court upheld the circuit court’s ruling in Johnson II,
holding that the privilege preempted the need to discover admissible evidence. In so holding,
we relied on the Supreme Court’s decision in Jaffee v. Redmond, 518 U.S. 1 (1996), where the
Court recognized the psychotherapist/patient privilege for the first time. In Johnson II, we
also held that the records were not discoverable under Brady v. Maryland, 373 U.S. 83 (1963),
because the records were not in the hands of the State and because there was no showing that
the State had access to or knowledge of the records and their contents.2
2
We note that Johnson sought habeas-corpus relief in federal court claiming error in
our decision in Johnson II with regard to the privilege issue. However, the Eighth Circuit
upheld the denial of his petition on the ground that our decision was not an unreasonable
15
Cite as 2015 Ark. 341In Ritchie, supra, the question presented was whether and to what extent a State’s
interest in the confidentiality of its investigative files concerning child abuse must yield to a
criminal defendant’s Sixth and Fourteenth Amendment right to discover favorable evidence.
There, the Commonwealth of Pennsylvania had established a special protective service agency
(CYS) to investigate cases of suspected child maltreatment and neglect. Ritchie was charged
with sex-based offenses regarding his thirteen-year-old daughter. The child reported the
incidents to the police, who referred the matter to CYS. During pretrial discovery, Ritchie
served CYS with a subpoena, seeking access to the records concerning his daughter. CYS
refused to comply with the subpoena, claiming that the records were privileged as set forth
by statute, which provided that all reports and other information obtained in the course of a
CYS investigation must be kept confidential. In response, Ritchie argued that he was entitled
to the information because the file might contain exculpatory material. The trial court
quashed the subpoena for the records. The Pennsylvania Supreme Court determined that the
trial court’s order violated both the Confrontation and the Compulsory Process Clauses of the
Sixth Amendment and concluded that Ritchie, through his lawyer, was entitled to review the
entire file to search for any useful evidence.
A divided Supreme Court affirmed in part and reversed in part and remanded. With
respect to the Confrontation Clause issue, a plurality of four justices concluded that the clause
was not implicated. The plurality rejected the notion that the Confrontation Clause involved
a constitutionally compelled rule of pretrial discovery. Instead, the plurality took the position
application of federal law. Johnson v. Norris, 537 F.3d 840 (8th Cir. 2008).
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Cite as 2015 Ark. 341that “the right to confrontation is a trial right, designed to prevent improper restriction on the
types of questions that defense counsel may ask during cross-examination.” Ritchie, 480 U.S.
at 52 (emphasis in original). To that point, the plurality opinion recited that “[t]he ability to
question adverse witnesses, however, does not include the power to require the pretrial
disclosure of any and all information that might be useful in contradicting unfavorable
testimony.” Id. at 53. The plurality went on to say that “the Confrontation Clause only
guarantees ‘an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.’” Id. (emphasis
in original) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)).
The Supreme Court reached a majority decision with respect to the Compulsory
Process Clause. The majority adopted for the purposes of that case a due-process analysis to
decide the issue. Under that analysis, and citing Brady v. Maryland, supra, the Court noted that
the government has an obligation to turn over evidence in its possession that is both favorable
to the accused and material to guilt or punishment. The Court observed that the CYS files
in question were subject to a qualified privilege, as the statute provided that information shall
be disclosed in certain circumstances, including when disclosure was directed by court order.
Because the statute contemplated some use of CYS records in judicial proceedings, the Court
reasoned that the statute did not prevent all disclosure in criminal trials. Therefore, the Court
held that, under the circumstances, the privilege must yield to the right of due process and
that Ritchie was entitled to know whether the CYS files contained exculpatory information.
However, the Court also held that a defendant’s right to discover exculpatory evidence
17
Cite as 2015 Ark. 341does not include the unsupervised authority to search through the files. Instead, the Court
determined that protecting Ritchie’s rights, as well as the State’s interest of safeguarding child-
abuse information, would best be served by having the trial court conduct an in camera
review of the files. The Court relied on precedent setting forth the standard definition of
materiality and observed that evidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have been
different. Therefore, on remand the trial court was to examine the files to determine whether
they contained information that would have changed the outcome of trial. If they did, then
Ritchie was entitled to a new trial. However, if the trial court determined that the files did
not contain such information, or if the nondisclosure was harmless beyond a reasonable doubt,
then, according to the Court, the lower court would be free to reinstate the conviction.
When we consider the circumstances of the present case and the decisions in both
Johnson II and Ritchie, we cannot say that the circuit court’s ruling was in error. Perhaps
inspired by Ritchie, the circuit court twice conducted an in camera review of JD’s records from
Rivendell. The circuit court advised that the records included intake forms that stood in
contradiction of JD’s pretrial testimony as to the timing of his disclosure of the abuse, but the
court otherwise announced that the records contained no other exculpatory material. Our
review of the trial record reveals that Holland presented his defense that JD was motivated to
falsely accuse Holland in order to get out of trouble. Given the scant evidentiary value of the
intake forms toward that defense, particularly when our review of the trial reveals that
Holland confronted JD on cross-examination with two prior inconsistent statements on that
18
Cite as 2015 Ark. 341very point, there is no basis on which to proclaim reversible error. We simply cannot
conclude that Holland’s defense was compromised in any way by the circuit court’s ruling.
Consequently, we affirm the circuit court’s decision.
Before concluding this opinion, we take note of Holland’s contention that JD waived
the privilege by testifying about his admittance to Rivendell and the reasons behind his
admission. Although Holland briefly raised this point below, he failed to develop the
argument or to obtain a specific ruling on this issue. As such, the argument is not preserved
for appeal. Gooch, supra.
Affirmed.
HART and WYNNE, JJ., dissent.
JOSEPHINE LINKER HART, Justice, dissenting. The circuit court found that the
integrated risk-assessment forms from JD’s admission to Rivendell in August 2011 and
October 2011, and a third assessment in November 2011 that was a copy of the October
form, indicated that JD had never been sexually abused. At trial, JD took the stand, and during
cross-examination, the circuit court prevented Holland’s attorney from asking JD about these
prior inconsistent statements. While admitting denials to his mother, JD never admitted that
he had made prior inconsistent statements to Rivendell staff or anyone else about whether he
had been sexually abused, and these prior inconsistent statements were never made known to
the jury.
These statements were not made on a collateral matter but, instead, were prior
inconsistent statements that directly impeached JD’s credibility with respect to his subsequent
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Cite as 2015 Ark. 341claims of sexual abuse and challenged the veracity of his testimony about these claims.
Presumably, JD’s credibility was a major consideration for the jury because its decision to
convict Holland for second-degree sexual assault turned on the weight of JD’s testimony.
Further, these statements were made to determine JD’s treatment and were not mere denials
to evade his mother. In fact, our hearsay rule does not exclude as hearsay “[s]tatements made
for purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensation, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Ark. R.
Evid. 803(4). This court has recognized that the basis for this hearsay exception is the patient’s
strong motivation to be truthful in giving statements for diagnosis and treatment. Hawkins v.
State, 348 Ark. 384, 387–88, 72 S.W.3d 493, 494 (2002). These statements not only had
impeachment value but also would have been admissible for the truth of the matter asserted
because they were highly reliable. See id. (holding that an examining physician’s testimony
that the victim had identified defendant as the person who raped her was admissible in rape
prosecution under hearsay exception for statements made for purposes of medical diagnosis
or treatment).
I acknowledge that we will not reverse a decision to exclude evidence absent the
circuit court’s abuse of discretion or absent a showing of prejudice. Scamardo v. State, 2013
Ark. 163, at 7, 426 S.W.3d 900, 904. A witness’s credibility, however, is always a relevant
issue subject to attack. Fowler v. State, 339 Ark. 207, 219, 5 S.W.3d 10, 16–17 (1999). The
right of free and unfettered cross-examination of the accuser by the accused is basic to our
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Cite as 2015 Ark. 341system of justice. Miller v. State, 269 Ark. 409, 414, 601 S.W.2d 845, 848 (1980).
The majority concludes that, given the “scant evidentiary value” of the statements and
the existence of two prior inconsistent statements—which the majority does not identify in
its opinion—Holland’s defense was not compromised. I, however, cannot say that Holland
was not prejudiced by circuit court’s decision to exclude highly reliable, prior inconsistent
statements that called into question JD’s credibility.
Accordingly, I respectfully dissent.
ROBIN F. WYNNE, Justice, dissenting. I find merit in appellant’s third point on
appeal and would reverse and remand. After an in-camera review of JD’s records from
Rivendell, the circuit court disclosed to counsel that JD’s admission documents showed the
following: the August 9, 2011 form was marked “patient has never been abused”; the
October 29, 2011 form was marked “patient has never been abused”; and the records from
his November 3, 2011 admission to long-term treatment contained a photocopy of the
October admission form. In the therapist’s notes dated November 17, JD initiated the topic
of sexual abuse. Defense counsel explained that this evidence directly contradicted prior
testimony by JD regarding when he first disclosed the abuse and was a crucial part of the
defense theory that JD fabricated the allegations because he was in trouble (and thus was
being admitted to Rivendell for long-term treatment). The circuit court denied appellant’s
request for production of this exculpatory evidence. In my view, this was error.
While the majority concludes that no reversible error occurred, I cannot agree. JD
never admitted at trial that he made prior inconsistent statements to Rivendell staff, and his
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Cite as 2015 Ark. 341credibility was the central issue in this case, as his testimony was the only evidence that the
sexual abuse took place. The psychotheraptist-patient privilege of Arkansas Rule of Evidence
503 must yield to a criminal defendant’s constitutional rights. I would follow the majority
of other jurisdictions that have extended the protections outlined in Pennsylvania v. Ritchie,
480 U.S. 39 (1987) (plurality opinion) to an otherwise absolute psychotherapist-patient
privilege. Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003) (collecting cases).
Therefore, I respectfully dissent.
Lassiter & Cassinelli, by: Erin Cassinelli; and
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
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