{
  "id": 6141108,
  "name": "Jane MORRIS v. STATE of Arkansas",
  "name_abbreviation": "Morris v. State",
  "decision_date": "1987-06-17",
  "docket_number": "CA CR 87-17",
  "first_page": "228",
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  "last_updated": "2023-07-14T22:00:42.291872+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Corbin, C.J., and Cracraft, J., agree."
    ],
    "parties": [
      "Jane MORRIS v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "James R. Cooper, Judge.\nThe appellant in this criminal case was charged with arson after the fire which destroyed her home was investigated by insurance representatives, the Pulaski County Sheriffs 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.\nFor 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.\nWith respect to the appellant\u2019s 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 A.R.E. Rule 404(b) if the evidence is independently relevant, and the probative value of the evidence outweighs the danger of unfair prejudice under A.R.E. 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.\nThe 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\u2019s house, which was next door to that of the appellant; the appellant then went outside for a few minutes, leaving Proffitt in her father\u2019s house. The appellant\u2019s 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:\nQ And what was the \u2014 What do you say Jane Morris said to you?\nA She asked me what I was going to say. And I said, \u201cthe truth.\u201d And she said, \u201cLike what\u201d? And I said, \u201cLike, for instance, that I\u2019m going to tell them that me and James was [sic] in the back bedroom when your Daddy pulled up.\u201d And she said, \u201cNo. No. Tell them you was [sic] walking down the road.\u201d\nProffitt\u2019s location during the minutes immediately prior to the outbreak of the fire was a relevant consideration, because the jury could infer from Proffitt\u2019s 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\u2019s 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\u2019s knowledge of her own guilt, from which it may be inferred that she was the person who committed the crime. See Poole v. State, 262 Ark. 4, 552 S.W.2d 647 (1977); see also E. Inwinkelried, Uncharged Misconduct Evidence \u00a7 3:04 (1984). Nor do we think that the trial court erred in failing to exclude Proffitt\u2019s testimony regarding the conversation under A.R.E. 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. See McCormick on Evidence \u00a7 490 at 565 (3d ed. 1984). Under these circumstances, we hold that the trial court did not abuse his discretion in admitting Proffitt\u2019s testimony.\nThe appellant also argues that the trial court\u2019s admission of Proffitt\u2019s 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\u2019s 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\u2019s attorney did not request permission to testify, nor did he move to withdraw as the appellant\u2019s attorney, for a mistrial, or request a continuance. Instead, his position before the trial court, which he urges on appeal, was that he was absolutely barred from testifying under the rules pronounced in Aetna Casualty and Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984), and Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), and that Proffitt\u2019s testimony concerning the appellant\u2019s statements on the elevator should thus be excluded. The cases cited by the appellant, however, do not set up an absolute bar to an attorney\u2019s testimony. In Broadway Arms, an attorney who had a financial interest in a case in the form of a contingent fee arrangement was pernitted to testify on retrial, provided that he first withdrew from the case and completely severed the attorney/client relationship. Broadway Arms, supra. Moreover, the Bishop Court stated that \u201c [a] n attorney who is to testify in an action should withdraw from the litigation.\u201d Bishop, 280 Ark. at 127, citing Eznor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977). Thus, in order for an attorney to testify in a case in which he has participated, he must first withdraw and sever the attorney-client relationship. If the appellant\u2019s attorney in the case at bar had thought his testimony to be important in his client\u2019s defense, the proper course for him to take would be to have sought to withdraw as counsel. Without deciding whether the appellant\u2019s attorney could properly have testified without withdrawing from this case had he attempted to testify, see Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979), we hold that, in the absence of a motion to withdraw on the part of her attorney, the appellant was not deprived of her right to defend herself.\nFinally, the appellant contends that the trial court erred in permitting testimony concerning scientific tests by a person who neither performed them nor was actually present when they were performed. She argues that this testimony was inadmissible hearsay which should have been excluded under A.R.E. Rule 803. We do not agree. The testimony that is the subject of this point for reversal was that of Andrew T. Armstrong, a chemist employed by Armstrong Forensic Laboratories, Inc., a firm specializing in the recovery and identification of flammable liquids from fire debris. Mr. Armstrong\u2019s testimony consisted of a statement of the results of various scientific tests, and his opinion that flammable liquids were present in samples of the debris taken from the appellant\u2019s house after the fire. Armstrong stated that, although the scientific tests upon which his opinion was based were performed by others, his conclusions were based upon his own analysis of the data derived from those tests. Under these circumstances, we hold that the trial court did not err in admitting Armstrong\u2019s testimony concerning the test results. It is well-settled that an expert may base his opinion upon facts learned from others, even though those facts are themselves hearsay. Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978); A.R.E. Rule 703. Moreover, we have held that, under Rule 703, an expert must be allowed to disclose the facts upon which his opinion is based to the trier of fact; otherwise, the opinion is deprived of its factual underpinning, and the trier of fact is left with little means for evaluating its correctness. Carter v. St. Vincent Infirmary, 15 Ark. App. 169, 690 S.W.2d 741 (1985).\nAffirmed.\nCorbin, C.J., and Cracraft, J., agree.",
        "type": "majority",
        "author": "James R. Cooper, Judge."
      }
    ],
    "attorneys": [
      "Achor & Rosenzweig, by: Jeff Rosenzweig, for appellant.",
      "Steve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Jane MORRIS v. STATE of Arkansas\nCA CR 87-17\n731 S.W.2d 230\nCourt-of Appeals of Arkansas Division I\nOpinion delivered June 17, 1987\n[Rehearing denied July 8, 1987.]\nAchor & Rosenzweig, by: Jeff Rosenzweig, for appellant.\nSteve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0228-01",
  "first_page_order": 268,
  "last_page_order": 273
}