Fowler v. State

Wendell L. Griffin, Judge.

Gerald D. Fowler appeals his conviction of harassment in Washington County Circuit Court on May 14, 1998. Appellant argues that the trial court erred when it permitted the State to inquire during cross-examination into his and a witness’s political beliefs and attendance at a meeting. We agree and reverse.

On October 9, 1997, the victim and her twelve-year-old daughter were driving home about 10:00 p.m. when they realized that they were being followed by the appellant. She was leaving work from an establishment called the Jones Center. The victim testified that appellant drove alongside her while she was stopped at a red light and subsequently began following her.

At the jury trial for harassment, the court allowed the prosecution to question appellant and one of his witnesses about 1) their attendance at meetings at the Jones Center and 2) appellant’s political beliefs. Arguing appellant’s credibility was at issue, the State’s questions included:

1. What are those citizen’s rights which you deal with . . . dealing just with the criminal justice system and the court system?

2. Do you feel that you’ve ever been abused by the government yourself?

3. Do you consider this to be a military court [and therefore does not have jurisdiction over you]?

Counsel for appellant objected to much of the line of questioning, arguing that it was not relevant to credibility or the issues in the case and that the State was attempting to prejudice the jury against the appellant. The trial court permitted the questioning. Appellant was convicted, sentenced to one year in the Washington County Jail, and fined $1000. Appellant argues that the line of questioning was not permitted by Rule 608 of the Arkansas Rules of Evidence and was not relevant to the case. He contends that his political views were not probative of truthfulness or veracity. Furthermore, appellant argues that this line of questioning prejudiced his right to a fair trial by implying that he was inherently unreliable due to his beliefs and political association. The State argues that appellant’s beliefs affected his credibility and whether or not he will testify truthfully in court. The State contends that appellant’s beliefs go directly to whether or not he believes the court has authority over him.

Rule 608 of the Arkansas Rules of Evidence provides:

Evidence of character and conduct of witness.

(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

(Emphasis added.) The test of admissibility may be summarized in three steps: 1) the question must be asked in good faith; 2) its probative value must outweigh any prejudicial effect; 3) the prior conduct must relate to the witness’ truthfulness. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). The rule limits cross-examination to specific instances of conduct that are clearly probative of truthfulness or untruthfulness, as distinguished from conduct probative of dishonesty. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); Green v. State, 59 Ark. App. 1, 953 S.W.2d 60 (1997).

In United States v. Abel, 469 U.S. 45 (1984), testimony-regarding membership in a secret prison gang was held to be probative of bias and not unduly prejudicial. One of the organization’s tenets required each member to perjure himself on other members’ behalf. The court held that, not only did the membership in the gang “show potential bias in favor of the respondent; because of the tenets of the organization described, it might also impeach his veracity directly.” Id. at 56. The Court held “no view as to whether the evidence of. . . membership . . . would be a specific instance of . . . conduct which could not be proven against him by extrinsic evidence except as otherwise provided in Rule 608(b).” Id.

Whether evidence is unduly prejudicial is determined under Rule 403 of the Arkansas Rules of Evidence, which provides:

Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

This balancing is a matter left to the sound discretion of the trial judge, and his decision will not be reversed absent a manifest abuse of that discretion. Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996); Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994).

In this case, it is not alleged that appellant’s political activities and those of his witness condoned lying in furtherance of the organization’s purpose. Nothing in the record suggested that members of the appellant’s group would perjure themselves. What was sought at trial was the use of appellant’s political associations to attack his credibility and cast doubt as to whether he would testify truthfully in a court with a “military” flag.

The conduct must be clearly probative of truthfulness. Appellant’s belief regarding military courts and their jurisdiction is not clearly probative of his truthfulness. To the contrary, appellant testified that the Washington County Circuit Court did have jurisdiction over his case, and his witness testified that he understood the oath and what it meant to testify truthfully. During the testimony, the State did not attempt to show that appellant’s organization required him to lie if he was in the “wrong” court or a court without jurisdiction. The State’s line of questioning was improper under Rule 608, as it was not clearly probative of the appellant’s truthfulness. The line of questioning was used to persuade the jury that, because of his political beliefs and association, appellant was the type of person who would be guilty of harassment and should be behind bars. The law of evidence does not presume that participation in a group that holds unconventional views manifests a propensity for truthfulness or untruthfulness. Examination into such matters is proper only where such associations are probative of a witness’s truthfulness or untruthfulness under Rule 608.

Reversed.

Robbins, C.J., Rogers, Stroud, and Meads, JJ., agree. Jennings, J., dissents.