Brian Wingfield v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION IV

BRIAN WINGFIELD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-344

OCTOBER 11, 2000

APPEAL FROM THE ARKANSAS

COUNTY CIRCUIT COURT,

SOUTHERN DISTRICT,

[NO. CR-97-89]

HONORABLE F. RUSSELL ROGERS,

CIRCUIT JUDGE

AFFIRMED

Appellant Brian Wingfield appeals his conviction of theft by receiving for which he received a ten-year prison sentence. He argues on appeal that the Arkansas County Circuit Court committed reversible error in permitting appellant's wife to be cross examined about statements she had made to a deputy sheriff. We disagree and affirm.

Because appellant does not challenge the sufficiency of the evidence to convict him, it is not necessary to recite all of the facts that support his conviction. Suffice it to say that appellant was charged with theft by receiving for unlawful possession of a stolen 1994 Sprint bass boat. The crime was alleged to have occurred in mid-August 1997. The first trial, held on February 11, 1999, ended in a mistrial. Immediately thereafter, appellant's wife went to

the county jail to retrieve the suit of clothes that appellant had worn during the trial. While at the jail, a sheriff's deputy had Mrs. Wingfield come into his office where he asked hersome questions. She told the deputy that at the time that this boat was allegedly stolen, her husband (1) had a drug problem that would result in his absence for four to five days at a time, and (2) had access to other vehicles through his employment at a detail/repair shop. This contradicted her earlier trial testimony that appellant worked every day and did not have access to any vehicles other than his own. These statements to the deputy sheriff are more consistent with the State's version of events.

Appellant's counsel was made aware of this statement by Mrs. Wingfield, and he accused the deputy sheriff of intimidating her into answering his questions by telling her that she could be either "a witness or a suspect." Mrs. Wingfield stated that no one ever apprised her of the fact that she had a right to counsel or a right to end the questioning. Appellant's counsel expressed his displeasure in a letter, which he mailed to the prosecutor and filed with the circuit clerk.

Upon retrial on August 26, 1999, appellant's counsel moved in limine to prevent Mrs. Wingfield's statement from being admitted into evidence, basing his argument mainly on the lack of ethics in the investigation and his disapproval of witness intimidation. The State responded that there was no rule prohibiting questioning of the wife; that she had not admitted any criminal wrongdoing; that she was not a defendant; that she did not directly implicate her husband; and that this did not fall within the husband-wife privilege. The trial court took the motion under advisement, postponing a ruling until presentation of her testimony.

During cross examination of Mrs. Wingfield, appellant's counsel objected to the use of the statement obtained by the sheriff's deputy. The State responded that the statement was only to be used to attack her credibility because portions of her current testimony were contradicted by her statements to the deputy sheriff. The trial court permitted this evidence to be introduced.

On appeal, we will not reverse a trial court's ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). We see no abuse of discretion in this instance.

Appellant asserts that what Mrs. Wingfield said to the deputy sheriff went to the "heart" of the husband-wife privilege and was therefore improper. Arkansas Rule of Evidence 504 (2000) delineates the husband-wife privilege and provides:

(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.

(b) General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.

(c) Who May Claim the Privilege. The privilege may be claimed by the accused or by the spouse on behalf of the accused. The authority of the spouse to do so is presumed.

(d) Exceptions. There is no privilege under this rule in a proceeding in which one [1] spouse is charged with a crime against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them.

The husband-wife privilege applies only to confidential communications between husband and wife, not to observations. See Dansby v. State, 338 Ark. 697, 1 S.W.3d 403(1999). Therefore, we agree with the State that Mrs. Wingfield's statements did not come within the scope of a confidential communication between her and her husband and that there was no abuse of discretion in allowing the State to ask Mrs. Wingfield about them.

To the extent that appellant argues that it was simply an abuse of discretion to permit the State to ask Mrs. Wingfield about her prior inconsistent statements, we disagree with that contention as well. Although we would not condone intimidation of witnesses by any participant in litigation, presuming that it occurred in this case, we cannot conclude that the State should not have had the opportunity to ask Mrs. Wingfield about her prior inconsistent statements. See Ark. R. Evid. 613 (2000); Traveler's Ins. Co. v. Smith, 338 Ark. 81, 991 S.W.2d 591 (1999); Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997). There were inconsistencies between her testimony and her statements to the deputy sheriff, and these inconsistencies affected the jury's determination of Mrs. Wingfield's credibility. As to any assertion that Mrs. Wingfield's constitutional rights were jeopardized or violated, appellant simply lacks standing to assert them on her behalf. See Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990); Kennedy v. Kelly, 295 Ark. 678, 751 S.W.2d 6 (1988).

Because we hold that the trial court did not abuse its discretion in permitting cross-examination of Mrs. Wingfield on these inconsistencies, we affirm.

Bird and Neal, JJ., agree.