Perry Lamar Adkins v. State of Arkansas

Annotate this Case
ar03-426

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR03-426

June 16, 2004

PERRY LAMAR ADKINS APPEAL FROM BENTON COUNTY

CIRCUIT COURT

APPELLANT CR.-200-421-1

V.

HONORABLE TOM J. KEITH,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

Appellant Perry Lamar Adkins appeals from the denial of his motion for new trial. In his motion, Adkins alleged that the State withheld information that should have been provided pursuant to the Arkansas Rules of Criminal Procedure governing discovery requests. Adkins's motion was denied and he appeals. For reversal, Adkins argues (1) that the State suppressed from him and the trial court certain records and results of medical and psychiatric examinations of the victims in violation of Arkansas Rule of Criminal Procedure 17.1, which undermined the outcome of the trial and prejudiced him; and (2) that the trial court erred by failing to enforce the rules of discovery as provided in Arkansas Rule of Criminal Procedure 19.7. We affirm.

Adkins was charged with two counts of sexual abuse in the first degree and one count of rape after three of his adopted daughters accused him of molesting them. Adkins's attorney filed two motions for discovery pursuant to Ark. R. Crim. P. 17, and the State copied the entire contents of its file and delivered them to his attorney. On May 9, 2001, just five days before his trial, Adkins's attorney filed a rape shield motion, asserting that the defense anticipated submitting evidence of prior sexual conduct that may be considered violative of Ark. Code Ann. § 16-42-101(b) (1999). In his motion, Adkins's counsel stated that the victims came into his custody because their biological mother and father physically, emotionally, and sexually abused

them, and that at trial he anticipated eliciting testimony regarding physical and mental examinations of the victims, including their diagnosis of adjustment disorder, posttraumatic stress disorder, attention deficit disorder, nightmares, flashbacks and substitution of perpetrators. Adkins's attorney argued that this evidence was relevant, important to support his defense, and refuted evidence of physical injury to the victims.1

The trial court held an in-chambers conference the day before trial on Adkins's rape shield motion, in which he sought to introduce evidence, through his wife, that the victims in this case had been sexually abused by their biological father. During the conference, Adkins's attorney asserted that this information was needed to prove his defense that the victims had "substituted" Adkins for the perpetrator of the earlier abuse and suffered from "flashbacks." He stated, "[T]here would be testimony by both the defendant and - and Violet Adkins that the children did have nightmares and other similar incidents." The State countered Adkins's motions, asserting that any testimony elicited through Violet Adkins would be hearsay; that the information sought was not relevant because it was too far removed; that admission of the proposed evidence was violative of the rape shield statute; and that the precedent established in Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000), prohibits the admission of evidence of psychological records and testimony under Arkansas Rule of Evidence 503, which establishes a privilege for psychotherapy and psychological medical records and confidential communications. During the hearing, Adkins and the State stipulated that there had not been any accusations by the victims against any other person from 1993 or 1994 until the time of the allegations in 2000 against Adkins. It was also established during the hearing that, within the seven years preceding the allegations of rape and sexual abuse against Adkins, there was no evidence of flashbacks or substitutions. There were no other allegations against other family members, strangers, or other men with whom the victims came into contact, and Adkins conceded as much during the hearing. The trial court also heard evidence that in January 1994 one of the victims was diagnosed with "posttraumatic disorder, secondary sexual abuse resolving"; that also in January 1994 two of the victims' recurring nightmares had abated; that the oldest victim demonstrated the least amount of psychological trauma as a result of the prior sexual abuse; and that the youngest victim's problems had more to do with ADHD and less with posttraumatic stress disorder. Although Adkins asserted that the victims were treated until 1997, he did not offer evidence that they were being treated for posttraumatic stress, nightmares, or substitutions. Adkins's motion was denied as violative of the rape shield statute codified at Ark. Code Ann. § 16-42 101 (Repl. 1999) and the privilege outlined in Rule 503.

On May 14, 2002, Adkins stood trial and was convicted of two counts of sexual abuse in the first degree. He was sentenced to ten years' imprisonment in the Arkansas Department of Correction for one count, and ten years with five years suspended for the second count, with the sentences to run consecutively.

Adkins subsequently filed a motion for a new trial, alleging that the State had violated the rules of discovery. Attached to his motion was a copy of his motion for discovery. Specifically, Adkins stated that he had learned from the prosecuting attorney that the State had in its possession records pertaining to the victims' treatment at the Ozark Guidance Center in Springdale, Arkansas in 1986.2 Adkins argued that the State, in bad faith, had withheld these records in violation of Ark. R. Crim. P. 17.1, and that as a result, his Sixth Amendment rights and rights pursuant to Article 2, Section 10 of the Arkansas Constitution were violated. Adkins also argued that he was prejudiced by the State's conduct because the reports would have supported his defense that due to the indicators of posttraumatic stress disorder, including nightmares, flashbacks, and substitution of perpetrators, the witnesses were confused. He contended that the reports would have also refuted the State's evidence of physical injury to the victims, and would have provided an exception to the rape shield statute, which prohibits the introduction of prior sexual conduct. Adkins requested a hearing on the matter. The motion was denied, and Adkins appeals.

It is well settled that "[t]he matter of granting or denying a new trial lies within the sound judicial discretion of the trial judge whose action will be reversed only upon a clear showing of abuse of that discretion or manifest prejudice to the defendant." Newberry v. State, 262 Ark. 334, 338, 557 S.W.2d 864, 867 (1977).

Arkansas Rule of Criminal Procedure 17. 1 (2004) states that subject to Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the material and information, which is or may come within the possession, control, or knowledge of the prosecuting attorney, including "any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations, scientific test, experiments, or comparisons." Ark. R. Crim. P. 17.1(a)(iv) (2004). The trial court in its discretion may require also the disclosure of other relevant material. Ark. R. Crim. P. 17.4 (2004). This rule does not mandate disclosure, but gives the trial court discretion. See Caldwell v. State, 319 Ark. 249, 891 S.W.2d 42 (1995) (holding that this rule does not give the defendant a right to the requested information, but gives the trial court the authority to require disclosure of evidence not produced under other provisions of the discovery rules). If the prosecuting attorney fails to comply with the rules of discovery, the trial court may permit discovery of the material not previously disclosed, grant a continuance, prohibit the party from introducing the undisclosed evidence, or enter any other order deemed proper under the circumstances. Ark. R. Crim. P. 19.7 (2004).

When evidence is not disclosed during pretrial discovery, the appellant bears the burden of proving that the omission was sufficient to undermine the confidence in the outcome of the trial. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). The prosecuting attorney is responsible for providing any information or materials that would tend to negate the defendant's guilt. Id. In determining whether a reversible discovery violation occurred, the appellate court must determine whether the appellant was prejudiced by the prosecutor's failure to disclose. Id. Absent a showing of prejudice, this court will not reverse. Id.

We cannot say that the State violated the rules of discovery. Rule 17.1(a)(iv) mandates disclosure of reports made in connection with the instant case. By Adkins's own admission the reports that he alleges were not disclosed were made commencing in 1986 in connection with the victims' sexual abuse case involving their biological father and mother. Moreover, these records covered treatment of which Adkins was well aware, as it occurred during the time in which the victims were in his custody, the treatment was referenced in his rape shield motion, and the records were specifically discussed during the hearing on the motion. At one point, Adkins's counsel stated "the records seem to indicate that [the victim] saw Dr. Shumate over a period of some three years or so, up to `97. I think that was the last time it was to do with medications and counseling." Thus, Adkins was aware of the existence of the records at all stages of the proceedings against him, which commenced in May 2000. Moreover, although he discussed the records with some apparent familiarity at the hearing in his motion, he neither requested them at that point nor indicated to the trial court that he did not have them.

In his motion for new trial, Adkins argued that the records contained information that would support his defense of "substituted perpetrator"; that the records refuted the State's evidence of physical injury; and that the failure to disclose the records violated his Sixth Amendment rights.3 While Adkins's appeal deals primarily with an alleged discovery rule violation, the substance of his argument instead goes to the trial court's denial of his rape shield motion. Adkins argues that he was entitled to a copy of the victims' medical reports so that he could have more effectively argued for the right to use evidence of the victims' prior sexual exposure, including mental and physical examinations, in support of his defense. However, the trial court had ruled that any such evidence was inadmissible as violative of the rape shield statute, and Adkins does not challenge that ruling on appeal.

We also note that our courts have stated that a criminal defendant cannot rely solely on discovery as a substitute for his own investigation. Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983). Adkins filed his rape shield motion just five days before trial and presented no evidence either through affidavits, expert testimony, or otherwise, which would demonstrate the probative value of the reports with respect to his substitution of perpetrator defense. Clearly Adkins failed to diligently and effectually pursue these issues throughout the progress of this case, up to and during the hearing on his rape shield motion, and his motion was denied. Moreover, because Adkins has not appealed the denial of his rape shield motion, we are unable to address the propriety of the trial court's ruling in that regard.

The concurring judge "believe[s] that the State violated Rule 17.1(d)" and is "deeply troubled by" Adkins's assertions that the prosecutor in this case failed to disclose evidence that "tends to negate guilt," asserting that the prosecutor in this case was required to disclose the victims' medical records pursuant to Ark. R. Crim. P. 17.1(d) and Brady v. Maryland, 373 U.S. (1963). In Smith v. State, --- Ark. --- 118 S.W.3d 542 (2003), our supreme court reiterated the three-element test for Brady violations: (1) the evidence must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

The evidence Adkins sought was not exculpatory, and therefore, he is not able to satisfy part one of the Brady test. During the hearing on the rape shield motion, Adkins alleged that the information in the medical records would provide a "defense" of substitution of perpetrators, thereby negating his guilt. The evidence presented during the hearing, however, showed that the victims had not "substituted" or accused any other of sexual abuse, and brought these allegation against only Adkins in 2000. Adkins admitted that the girls had not raised sexual abuse allegations against any other person within the preceding seven years, nor had they raised these allegations during the time they were actually being treated for posttraumatic stress disorder. At least two of the three victims' problems with posttraumatic stress disorder had been resolved by 1994, and the victims were no longer experiencing recurring nightmares as of 1994. This evidence fails to support Adkins's argument that the medical records tend to negate his guilt because the victims substituted him for their original perpetrator when the victims had not made similar accusations during the time they were being treated for posttraumatic stress disorder, and at the time of Adkins's trial, the victims had not been treated for nightmares or posttraumatic stress disorder for at least seven years. Therefore, the trial court did not abuse its discretion because Adkins failed to demonstrate that the evidence he sought to admit was exculpatory. See Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992).

Moreover, both the State and Adkins made "authoritative references" to the victims' treatment history and records during the hearing on Adkins's motion, and it is thus not apparent that the State "suppressed" the records either by not providing them to Adkins or by defending against his use of them in connection with the rape shield motion.

Notwithstanding Adkins's inability to satisfy the first and second prongs of the Brady test, Adkins also cannot demonstrate prejudice, the third prong of the test. Prejudice can be demonstrated when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Smith, supra. Adkins has failed to prove that he was prejudiced by the nondisclosure of the medical records. To demonstrate prejudice he must show that the result of the proceeding would have been different. The purpose of the discovery rules is to allow the accused the opportunity to make beneficial use of the evidence. Cook v. State, 76 Ark. App. 447, 68 S.W.3d 308 (2002). In light of Ark. R. Evid. 503 and Johnson v. State, 342 Ark. 186, 27 S.W.3d. 405 (2000), the records would not have been admissible under the psychotherapist/patient privilege. The plain language of Rule 503 makes it clear that records made during the course of treatment are subject to absolute privilege without regard to their content, unless some exception applies. Id. This privilege preempts the need to discover all evidence, including evidence that may be otherwise admissible. See id.

Adkins finally argues that the trial court erred by failing to enforce the discovery rules. Because we find that no discovery violation occurred, Adkins's argument is without merit.

Accordingly, because the records Adkins sought to discover were not made in connection with this case and were records of which he was aware well in advance of his trial, because he has failed to demonstrate a Brady violation, and because the denial of his rape shield motion is not properly before this court, we find that the trial court did not abuse its discretion by denying his motion for new trial.

Affirmed.

        Griffen, J., agrees.

Hart, J., concurs.

Josephine Linker Hart, Judge, concurring. I write separately because the majority, undoubtedly misled by the way that Adkins presented his argument on appeal, has misconstrued the content and applicability of Rule 17.1 of the Arkansas Rules of Criminal Procedure, entitled, Prosecuting Attorney's Obligations. While it is true that subparagraphs (a) through (c), which concern the evidence that the prosecution intends to use against a criminal defendant, require disclosure only "upon timely request," subparagraph (d), which concerns evidence "which tends to negate the guilt of the defendant," requires no such request. Because the evidence sought by Adkins was of the type that he believed would assist in his defense, whether or not Adkins asked for it in his discovery motion is completely immaterial. Section (d) of Rule 17.1 imposes an affirmative duty on the prosecutor to disclose exculpatory evidence. It states: "Subject to the provisions of Rule 19.4, the prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor." No discovery motion is required; the plain wording of Rule 17.1(d) makes it a self-actuating duty.

Subparagraph (d) of Rule 17.1 does no more than codify the constitutional requirement that the State disclose exculpatory evidence as articulated in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Significantly, one of the most recent interpretations of the Brady mandate, Strickler v. Greene, 527 U.S. 263 (1999), noted that the duty to disclose evidence that tends to negate guilt is applicable even though there has been no request by the accused, and the duty encompasses impeachment evidence as well as exculpatory evidence. Accordingly, I disagree with the majority's assertion that because Adkins was "aware" of the records in question, it was not a discovery violation. Is that not tantamount to saying that if you are "aware" of your paycheck, your employer may be excused from giving it to you?

Equally troubling is the majority's resort to Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983), as authority for holding Adkins's alleged lack of diligence in attempting to secure the records by alternative means acted as some type of bar to his complaining about the State's failure to disclose the evidence on appeal. The majority opinion states: "Our courts have stated that a criminal defendant cannot rely solely on discovery as a substitute for his own investigation." Although this authoritative-sounding phrase seems to have the aura of black-letter law, my research has convinced me that it sprang fully formed from the fertile legal mind of Justice Fogleman as obiter dictum in Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980), a decision where the supreme court reversed a conviction based on the State's failure to timely disclose all of the witnesses it intended to call at trial. The statement almost immediately appeared in other opinions, emerging in Thomerson v. State, 274 Ark. 17, 621 S.W. 690 (1981), again as dicta, where the supreme court rejected an argument that it was error for the State not to test all of the material seized in a murder investigation. Tomerson is the purported legal underpinning for Heffernan. Significantly, Heffernan was the only decision of Dupree progeny that I have found that deals strictly with an alleged violation of the duty to disclose exculpatory evidence, and then only to hold that the appellant had failed to show that the trial court abused its discretion in denying a continuance because the appellant failed to prove that the prosecution did not make a disclosure mandated by Rule 17.1(d). It is worth noting that, once again, the statement in question was only dictum.

I believe that the State violated Rule 17.1(d). I agree with Adkins's assertion that the prosecutor's authoritative reference to the victims' treatment history betrayed her access to the information that Adkins was denied. I acknowledge that Rule 17.1(d)contemplates a situation in which the State might have been able to keep this information from Adkins pursuant to Rule 19.4, which authorizes the entry of a protective order. However, I cannot find such an order in the record.

Nonetheless, I do believe that this case must be affirmed. In part, I have come to this conclusion because Adkins has simply made the wrong argument on appeal, miring the majority in an unnecessary discussion of Rule 17.1(a). Furthermore, as noted in a part of the majority opinion that I believe gets to the heart of the matter, albeit too briefly and too tangentially, Adkins did not appeal the denial of his rape shield motion, which essentially made the evidence that he sought irrelevant. In Harrell v. State, 331 Ark. 232, 962 S.W.2d 325 (1998), the supreme court held that no prejudice could be proven where the evidence cited by an appellant in an alleged Brady violation would not have been admissible to impeach the credibility of a witness for the State. Adkins's substitution of perpetrators defense would have served to impeach of the victims' testimony, had it not been precluded by the trial court's rape-shield ruling.

Finally, I am deeply troubled by the accusations that Adkins's counsel makes against the prosecutor. A prosecutor's duty to disclose evidence that "tends to negate guilt" is reinforced by Rule 3.8(d) of the Arkansas Rules of Professional Conduct. Until the trial court entered a protective order pursuant to Rule 19.4 of the Arkansas Rules of Criminal Procedure, which, I cannot find that the State properly applied for, the prosecutor had an ethical duty to disclose the evidence as well as a legal duty. I am not convinced that the prosecutor lived up to either.

I concur.

1 In response to Adkins's rape shield motion, the State attached copies of medical reports indicating that in 1993 the victims were treated by Dr. Mark Lowell, who concluded that their physical exams were normal and their hymens intact. In 2000, after the allegations against Adkins arose, the victims were again treated, and the results indicated that B.A. had damage to her hymen and had identified Adkins as the perpetrator of the sexual abuse.

2 The victims in this case were sexually abused by their biological father. As a result, they were removed from the home and placed with Adkins and his wife. The girls allegedly received treatment and counseling at the Ozark Guidance Center for posttraumatic stress disorder, depression, attention deficit disorder, and nightmares.

3 Our supreme court has held that protection of rape victims under the rape shield statute does not violate a defendant's right to confront witnesses. See Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).