Bayless v. State

Debra BAYLESS v. STATE of Arkansas

CR 96-920                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 16, 1996


1.   Evidence -- attorneys are entitled to talk with witnesses
     before putting them on stand -- prosecuting attorney has right
     to interview witnesses before putting them on stand. --
     Attorneys, including the district attorney and his assistants,
     are entitled to talk with witnesses before placing them upon
     the witness stand; it is not impermissible for the prosecutor
     to discuss with a witness the testimony he would give from the
     witness stand; a prosecuting attorney has a right to interview
     his witnesses before they testify, and any sequestration order
     cannot prohibit such; the purpose of the rule is not, and
     never has been, to prevent attorneys from consulting with
     their clients' witnesses.

2.   Evidence -- sequestration rule necessity in trial practice --
     Ark. R. Evid. 615 imposes no per se bar on attorney's ability
     to properly prepare witnesses. --  Ark. R. Evid. 615 is a
     valuable tool for discouraging and exposing fabrication,
     inaccuracy, and collusion; sequestration is a means of
     insuring that a witness' testimony would not be influenced by
     the testimony of other witnesses; Rule 615 imposes no per se
     bar on an attorney's ability to prepare a witness through
     proper methods.

3.   Witnesses -- proper witness preparation not same thing as
     impermissible influencing -- violation of Rule 615 determined
     on case-by-case basis. -- There is a line that exists between
     perfectly acceptable witness preparation on the one hand and
     impermissible influencing of the witness on the other hand;
     trial lawyers, in the course of preparing their witnesses,
     must be careful not to indicate specifically what other
     witnesses have testified about; trial judges should be aware
     of the possibility that the sequestration rule may be
     circumvented in the guise of attorneys "prepping" their
     witnesses; whether an attorney violates Rule 615 in the course
     of preparing a witness must be determined on a case-by-case
     basis.

4.   Evidence -- no violation of rule found -- prosecutor's
     communication with witness was proper witness preparation and
     nothing more. -- The communication between the witness and the
     prosecutor did not amount to an "indirect method of hearing
     testimony of another witness" in violation of Rule 615 where
     the witness testified that no one had discussed appellant's
     testimony with him, and there was no indication that the
     witness fabricated or tailored his testimony in violation of
     the rule; moreover, the record did not suggest that the
     prosecutor told the witness what to say on the stand or
     revealed to him the specifics of appellant's testimony; at
     most, the prosecutor told the witness why he had been called
     to testify and in so doing indicated the general nature of
     appellant's testimony; the prosecutor made this disclosure
     consistently with Rule 615; the Trial Court was affirmed on
     this point.

5.   Evidence -- trial court permitted use of bank statement --
     appellant's argument procedurally barred. -- Appellant's 
     argument that the trial court erred in permitting the
     prosecutor to use a bank statement was meritless; this
     argument was procedurally barred in light of defense counsel's
     failure to object to the statement at the first opportunity to
     do so, i.e., when it was used during cross-examination; the
     objection was made only during the rebuttal phase of the
     trial, and so it was untimely.
  

6.   Appeal & error -- objections not preserved for review --
     failure to obtain ruling on objection below fatal to claim on
     appeal. -- Defense counsel failed to preserve his discovery-
     based objection to the co-worker witness where the abstract
     did not reveal any ruling from the trial court on the
     objection to the witness; the failure of an appellant to
     obtain a ruling on her objection is fatal to her claim; also,
     where defense counsel did not challenge the State's assertion
     that the bank witness was a genuine rebuttal witness whose
     name was not required to be furnished in discovery, the
     objection to the witness was not preserved for review. 


     Appeal from Arkansas Circuit Court; Russell Rogers, Judge;
affirmed.
     Dennis R. Molock, Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice.
     Debra Bayless, the appellant, was charged as an habitual
offender in the Arkansas County Circuit Court with five counts of
theft of property.  Ark. Code Ann.  5-36-103(a)(2); 5-4-501
(Repl. 1993).  At the conclusion of the State's case-in-chief, the
Trial Court dismissed one of the counts upon Ms. Bayless's motion
for directed verdict.  The jury returned guilty verdicts on the
remaining counts, and Ms. Bayless was sentenced to a prison term of
sixty years and a fine of $8,000.  On appeal, Ms. Bayless contends
that her conviction should be reversed because (1) the State was
permitted to introduce the testimony of her former husband, Ricky
Bayless, in violation of Ark. R. Evid. 615; and (2) the State was
permitted to introduce the testimony of Mr. Bayless and a bank
employee, as well as a subpoenaed bank statement, despite the
State's failure to disclose the evidence in response to a request
made pursuant to Ark. R. Crim. P. 17.1.  We affirm the conviction
because Ms. Bayless's arguments are either meritless or barred on
procedural grounds.
     The abstract reveals that Ricky and Debra Bayless were
employed by the Lone Tree Cemetery in Stuttgart shortly after their
marriage in November 1993.  Mr. Bayless served as a caretaker, and
Ms. Bayless worked in an office on the grounds.  Although the
Baylesses soon separated, they continued to operate a business at
the cemetery known as D & R Monument, which sold cemetery monuments
and grave stones.  Ms. Bayless ran the business out of the cemetery
office.  She would receive orders and payments from interested
customers and forward the orders to a manufacturer in Georgia known
as the Worley Monument Company.
     Ms. Bayless was charged with theft after a number of her
customers complained to the local prosecutor that they had given
checks to Ms. Bayless payable to D & R Monument for monuments they
did not receive.  The State attempted to show at trial that Ms.
Bayless had taken her customers' checks by deceit, with the purpose
of depriving her customers of their money, and with no intention of
providing them with the monuments they ordered.  The testimony
given by the complaining witnesses during the State's case-in-chief
established that, from January to April 1995, Ms. Bayless received
the customers' monument orders and checks in amounts ranging from
$218 to $1,430; that Ms. Bayless endorsed the checks and cashed or
deposited them, typically on the day the checks were written; that
the customers received neither monuments nor refunds; and that they
attempted to inquire with Ms. Bayless and had difficulty locating
her.  In addition, the State introduced the complaining witnesses'
receipts and cancelled checks.  This was the extent of the State's
case-in-chief.
     Ms. Bayless's case-in-chief consisted of her testimony and the
exhibits she introduced.  Although Ms. Bayless acknowledged
receiving monument orders from the complaining customers and
admitted to taking their checks, she denied taking the checks with
the intent to deceive.  She maintained that she forwarded the
orders to the Worley Monument Company in Georgia but explained that
the monuments were not delivered because D & R Monument had not
made sufficient payments on the invoices.  According to Ms.
Bayless, it was Mr. Bayless's responsibility to pay the business's
bills, and she testified that she had made the customers' checks
available for that purpose by depositing them in D & R Monument's
account at Farmers and Merchants Bank or by cashing the checks and
giving the cash to Mr. Bayless.  Ms. Bayless acknowledged that she
was authorized to write checks on D & R Monument's account, but she
insisted that she could not pay any bills, including those owed to
the Worley Monument Company, with D & R Monument funds unless she
obtained Mr. Bayless's permission.
     Ms. Bayless testified that most of the debt owed by D &
Monument to the Worley company remains unpaid.  She indicated,
however, that she made a $500 payment with a cashier's check that
she claimed to have purchased with her own money on April 13, 1995. 
On cross-examination, Ms. Bayless admitted that this was the same
date on which she cashed a check for approximately $700 written by
Nellie Mayfield, one of the complaining customers.  Ms. Bayless
insisted, however, that she gave the cash to Mr. Bayless.
     Upon further cross-examination, Ms. Bayless denied depositing
any of her customers' checks in her personal account.  The
prosecutor specifically asked Ms. Bayless whether, on January 30,
1995, she deposited into the savings account she shared with her
boyfriend, Jeffrey Rose, any portion of the $1,430 check that was
payable to D & R Monument and written on January 30 by Ida Mae
Gaither, one of the complaining customers.  Ms. Bayless answered in
the negative and asserted that the Gaither check was deposited into
the D & R Monument business account on January 30, 1995.
     The prosecutor then showed Ms. Bayless the cancelled check
written by Ms. Gaither, as well as a bank statement on the Bayless-
Rose savings account.  After examining the documents, Ms. Bayless
acknowledged that the bank statement revealed a large deposit in
the account on January 30, 1995, and that the Bayless-Rose account
number -- not the D & R Monument account number -- appeared on the
back of Ms. Gaither's cancelled check.  Ms. Bayless's explanation
for the account activity on January 30 was that Mr. Rose had
deposited his pay check.  Ms. Bayless further suggested that the
appearance of the Bayless-Rose account number on the back of the
Gaither check was due to an error on the part of the bank.  Defense
counsel did not object to the prosecutor's use of the bank
statement in the course of cross-examining Ms. Bayless.
     The State then offered what it asserted was rebuttal evidence. 
The State first called Mary Shelton, an employee of the Farmers and
Merchants Bank.  Defense counsel objected to Ms. Shelton because
the State had not disclosed her name as required by Rule 17.1.  The
State responded that Ms. Shelton was a rebuttal witness and that it
had no obligation to furnish the names of rebuttal witnesses in
discovery.  Defense counsel did not challenge that assertion, and
the Trial Court permitted Ms. Shelton to testify.
     The prosecutor showed Ms. Shelton the bank statement on the
Bayless-Rose savings account.  Defense counsel requested a sidebar
conference, and the prosecutor revealed that he had obtained the
bank statement on the morning of trial but that he had subpoenaed
the statement four or five days prior to trial.  Defense counsel
objected to the prosecutor using the statement because it had not
been furnished.  The prosecutor again claimed that he had no
obligation to disclose the bank statement because it was rebuttal
evidence.  Defense counsel maintained that the bank statement was
not genuine rebuttal evidence because it had been subpoenaed well
before trial and because the prosecutor, by his own admission,
anticipated using it at trial.  The Trial Court allowed the
prosecutor to use the bank statement in the course of questioning
Ms. Shelton and to introduce the statement into evidence over
defense counsel's objection.
     Ms. Shelton examined the bank statement on the stand and
testified that a deposit of $1200 was made in the Bayless-Rose
savings account on January 30, 1995.  Ms. Shelton also examined the
cancelled check for $1,430 written by Ms. Gaither and testified
that the account number stamped on the back of the check was the
number of the Bayless-Rose savings account.  Ms. Shelton concluded
that the $1,200 deposit was made with funds from the Gaither check,
but she conceded that she did not know who made the deposit.
     The State then called Mr. Bayless as its final rebuttal
witness.  Defense counsel initially objected to Mr. Bayless because
his name had not been disclosed by the State.  The prosecutor
argued that Mr. Bayless was a true rebuttal witness because he
would respond to Ms. Bayless's allegations that he had received
some of the money paid by the customers.  It is not clear from the
abstract if defense counsel obtained a ruling on this particular
objection.
     Defense counsel raised a second objection to Mr. Bayless based
on Ark. R. Evid. 615.  Defense counsel conducted a voir dire
examination of Mr. Bayless and elicited the following testimony as
abstracted:
     I was notified to come up here and testify a little bit
     ago.  I was notified by David Cowart, a Stuttgart police
     officer, within the last hour and a half.  I have not
     really been made aware of any of the evidence or of what
     any of the evidence has been so far.  I figured, my
     speculation is that my former wife probably turned it
     around where it's all my fault.  No one has discussed it
     clearly with me anyway.  It was just stated that possibly
     it was looking like she was trying to blame it all on me. 
     I am being called upon to testify basically to defend my
     word.  I had been told that she, not really that she had
     blamed, just basically it looked like it was all my
     fault. ...  She has said that I'm the reason that ...
     [t]he bills haven't been paid ... and the monuments
     haven't been ordered.

Mr. Bayless indicated that he had arrived at the courthouse around
2:00 p.m. that day, that he had not talked with the prosecutor
before his arrival, and that the prosecutor had not told him what
to say.  
     On the basis of this voir dire testimony, defense counsel
objected to Mr. Bayless's testimony and asked the Trial Court to
declare Mr. Bayless "unavailable" as a witness because he had
learned the content of Ms. Bayless's testimony in violation of Ark.
R. Evid. 615.  The prosecutor argued that he had not prepared Mr.
Bayless and that he had merely explained to Mr. Bayless that his
testimony was necessary in order to refute Ms. Bayless's claim that
she had given Mr. Bayless the customers' money.  The Trial Court
overruled the objection and permitted Mr. Bayless to testify.
     Mr. Bayless testified that Ms. Bayless handled the day-to-day
business of D & R Monument and was responsible for paying the
business's bills.  Mr. Bayless said that his activities around the
cemetery were limited to caring for the grounds and that he had
little to do with the business's affairs.  Mr. Bayless specifically
denied receiving any cash from Ms. Bayless derived from the checks
paid by customers for grave markers or monuments, but he
acknowledged that Ms. Bayless had given him checks that he
deposited in the D & R Monument account.

               1.  The witness-sequestration rule
     We first address Ms. Bayless's argument that the Trial Court
received Mr. Bayless's testimony in violation of the "witness-
sequestration rule" set forth at Ark. R. Evid. 615.  That rule
provides as follows:

     At the request of a party the court shall order witnesses
     excluded so that they cannot hear the testimony of other
     witnesses, and it may make the order of its own motion. 
     This rule does not authorize exclusion of (1) a party who
     is a natural person, or (2) an officer or employee of a
     party that is not a natural person designated as its
     representative by its attorney, or (3) a person whose
     presence is shown by a party to be essential to the
     presentation of his cause.

Although Ms. Bayless has failed to abstract the "invocation of the
rule," we reach the merits of her argument because other portions
of the abstract make clear that the parties indeed requested the
exclusion of witnesses in accordance with Rule 615.
     Ms. Bayless contends that the Trial Court erred in permitting
Mr. Bayless to testify because he had ascertained the nature of her
testimony through communications with the prosecutor before taking
the stand.  Ms. Bayless apparently bases her argument on Mr.
Bayless's testimony that he was informed that Ms. Bayless had
"blamed" him for the non-delivery of the customers' monuments and
on the prosecutor's statement that he told Mr. Bayless that his
testimony was necessary to refute some of Ms. Bayless's statements.
     The thrust of Ms. Bayless's argument is that Rule 615
prohibits an attorney, in the course of preparing his or her
witness, from describing in any way what another witness has said
on the stand.  We are not aware of any case law from this
jurisdiction that stands for such a broad proposition, and we
reject Ms. Bayless's interpretation of Rule 615 because it would
unduly restrict an attorney's ability to consult with witnesses
before examining them at trial.
     Like other courts, we believe that "[a]ttorneys, including the
district attorney and his assistants, are entitled to talk with
witnesses before placing them upon the witness stand."  State v.
Carswell, 253 S.E.2d 635, 637 (N.C. Ct.App. 1979).  It is not
impermissible for "the prosecutor to discuss with a witness the
testimony he would give from the witness stand," State v. Brock,
633 P.2d 805, 814 (Or.App. 1981), and we agree that a prosecuting
attorney "has a right to interview his witnesses before they
testify, and any sequestration order could not prohibit such." 
United States v. Klinginsmith, 25 F.3d 1507, 1511 (10th Cir. 1994). 
We simply are not aware of any rule of evidence that "prohibits
counsel for either side in interviewing witnesses singly or in
groups preparatory to trial from reviewing with them the version of
every witness as to the facts."  Porter v. State, 564 So. 2d 31, 34
(Miss. 1990).  See Lutz v. State, 536 N.E.2d 526, 529-30 (Ind.App.
1 Dist. 1989); State v. Allison, 147 N.W.2d 910, 912 (Iowa 1967),
cert. denied 391 U.S. 906.  See also Moffett v. State, 540 So. 2d 1313, 1317 (Miss. 1989)("The purpose of the rule is not, and never
has been, to prevent attorneys from consulting with their clients'
witnesses.")
     We are well aware of Rule 615's necessity in trial practice. 
As we have stated, the rule is a valuable tool for "discouraging
and exposing fabrication, inaccuracy, and collusion."  King v.
State, 322 Ark. 51, 55, 907 S.W.2d 127 (1995) (citations and
internal quotations omitted).  See also Moffett, 540 So. 2d  at 1317
(stating sequestration is "a means of insuring that a witness'
testimony would not be influenced by the testimony of other
witnesses").  With today's opinion, we simply recognize that Rule
615 imposes no per se bar on an attorney's ability to prepare a
witness through proper methods.
     We caution, however, that there is a "line that exists between
perfectly acceptable witness preparation on the one hand, and
impermissible influencing of the witness on the other hand."  State
v. Earp, 571 A.2d 1227, 1235 (Md. 1990).  That line "may sometimes
be fine and difficult to discern."  Id.  We agree with the
Mississippi Supreme Court that trial lawyers, in the course of
preparing their witnesses, "must be careful not to indicate
specifically what other witnesses have testified about."  Douglas
v. State, 525 So. 2d 1312, 1319 (Miss. 1988) (emphasis added), and
"[w]e admonish trial judges to be aware of the possibility that the
sequestration rule may be circumvented in the guise of attorneys
`prepping' their witnesses."  Id.  Whether an attorney violates
Rule 615 in the course of preparing a witness must be determined on
a case-by-case basis.
     On this record, we cannot say that the communication between
Mr. Bayless and the prosecutor amounted to an "indirect method of
hearing testimony of another witness" in violation of Rule 615. 
Doby v. State, 532 So. 2d 584, 589 (Miss. 1988).  Mr. Bayless
testified that "[n]o one has discussed [Ms. Bayless's testimony]
clearly with me anyway," and there is no indication that Mr.
Bayless fabricated or tailored his testimony in violation of the
rule.  Moreover, the record does not suggest that the prosecutor
told Mr. Bayless what to say on the stand or revealed to him the
specifics of Ms. Bayless's testimony.  At most, we conclude the
prosecutor told Mr. Bayless why he had been called to testify and
in so doing indicated the general nature of Ms. Bayless's
testimony.  We find that the prosecutor made this disclosure
consistently with Rule 615 and affirm the Trial Court on this
point.

               2.  Discovery and Rebuttal Evidence
     We now turn to Ms. Bayless's assertion that the Trial Court
should have excluded the Bayless-Rose bank statement and the
testimony of Ms. Shelton and Mr. Bayless on account of the
prosecutor's failure to disclose his intention to use this evidence
in discovery.  We affirm on these points because they are not
preserved for appellate review.
     Arkansas Rule of Criminal Procedure 17.1(a)(v) provides that
     the prosecuting attorney shall disclose to defense
     counsel, upon timely request, ... any books, papers,
     documents, photographs or tangible objects, which the
     prosecuting attorney intends to use in any hearing or at
     trial or which were obtained from or belong to the
     defendant .....

     As we noted above, the prosecutor first used the bank
statement in the course of cross-examining Ms. Bayless.  The
prosecutor used the statement again, and introduced it into
evidence, during the rebuttal phase.  Only at this second juncture
did defense counsel object to the statement on the basis that the
statement had not been furnished.  On appeal, Ms. Bayless argues
that the Trial Court erred in permitting the prosecutor to use the
bank statement, but we agree with the State's position that this
argument is procedurally barred in light of defense counsel's
failure to object to the statement at the first opportunity to do
so -- i.e., when it was used during cross-examination.  The
objection was made only during the rebuttal phase of the trial, and
we find that it was untimely.  Turner v. State, 325 Ark. 237, 245,
926 S.W.2d 843 (1996); Johnson v. State, 325 Ark. 197, 204, 926 S.W.2d 837 (1996).
     We also find that defense counsel failed to preserve his
discovery-based objections to Mr. Bayless and Ms. Shelton.  As we
indicated, the abstract does not reveal any ruling from the Trial
Court on the objection to Mr. Bayless.  The failure of an appellant
to obtain a ruling on her objection is fatal to her claim.  Laudan
v. State, 322 Ark. 58, 59, 907 S.W.2d 131 (1995).  The objection to
Ms. Shelton is likewise not preserved for review because defense
counsel did not challenge the State's assertion that she was a
genuine rebuttal witness whose name was not required to be
furnished in discovery.
     Affirmed.
     Glaze, J., concurs with respect to Part One of the opinion.