Impeaching a Witness Who Has a Mental Illness

Facts of the Case

Jonathan Brown was shot and killed inside Larry Bailey's residence on May 8, 2015. Mr. Collins was charged with capital murder and the use of a firearm during commission of the offense.

At Mr. Collins' trial in October 2017, Mr. Bailey testified that he allowed homeless persons to stay in his home. On the night of Mr. Brown's murder, Mr. Brown and four additional people were staying there, including Mr. Collins and his girlfriend, Ms. Jackson. Mr. Bailey testified that he awoke to Mr. Collins and Mr. Brown arguing and he saw Mr. Collins shoot Mr. Brown three times with a pistol. Mr. Bailey saw Mr. Collins and the other individuals leave the house. Mr. Bailey went across the street to call 911. While on the neighbor's front porch, he observed Mr. Collins reenter the house; he heard a fourth gunshot and he saw Mr. Collins exit the house and walk down an alley.

Ms. Jackson testified that, several hours before the shooting, she arrived at Mr. Bailey's residence to find Mr. Collins asleep on a pallet in the kitchen with a .45 pistol resting on his chest. She put the gun on the floor and she went to sleep next to him. She testified that in the morning she heard Mr. Collins and Mr. Brown argue. She observed Mr. Collins walk into the living room, and then she heard multiple gunshots. Ms. Jackson witnessed everyone, including Mr. Collins, leave the house after the shooting. She stated that Mr. Collins returned to the house and she heard one more gunshot.

The medical examiner testified that Mr. Brown had four gunshot wounds, which caused his death. The firearm and tool-mark examiner testified that the four recovered .45-caliber bullets and cartridge casings were fired from the same gun. The crime-scene specialist testified additional rounds of .45-caliber bullets were found in a bag near where Mr. Collins had been sleeping. The gun was never found.

Mr. Collins filed a pretrial motion requesting that the circuit court order the release of Ms. Jackson's mental health records from 2014 to 2017. He contended that her mental state was relevant due to the nature of her expected trial testimony. The state argued that there was no evidence that Ms. Jackson was experiencing a psychotic disorder at the time of the incident and that the physician– and psychotherapist–patient privileges under Arkansas Rule of Evidence 503 (2017) barred discovery of these records. This rule provides the patient with a privilege to refuse to disclose and prevent any other person from disclosing medical records or confidential communications pertaining to the diagnosis and treatment of physical, emotional, mental, and substance use conditions. There is an exception for communications made in the course of a court-ordered examination of a patient, whether a party or a witness to the case. The circuit court denied Mr. Collins' motion.

Defense counsel further indicated they had acquired certified court documents from unrelated cases involving Ms. Jackson that contained information about her mental health history and diagnosis of schizophrenia. The state asserted there was no evidence that Ms. Jackson was experiencing a psychotic disorder currently or at the time of the murder and asked the circuit court to exclude this evidence as irrelevant. Mr. Collins contended that these records indicated that Ms. Jackson's mental health was an ongoing concern and requested that he be allowed to use these documents to impeach her on cross-examination if the matter was brought up during her direct examination. The circuit court deferred ruling on this request until she testified.

During direct examination, Ms. Jackson disclosed she had been psychiatrically hospitalized in the past. Mr. Collins renewed his request to impeach her with the documents in his possession, arguing she had “opened the door” for this evidence to be admitted. The circuit court denied this request. Mr. Collins later proffered these documents into the record.

The jury found Mr. Collins guilty on both charges, and he was sentenced to life in prison. Mr. Collins appealed to the Arkansas Supreme Court. His appeal rested on one point: whether the circuit court abused its discretion by not allowing him to challenge Ms. Jackson's credibility with evidence of her schizophrenia diagnosis.

Mr. Collins argued the circuit court erred in two ways. First, he asserted the circuit court erred by not examining Ms. Jackson's mental health records before ruling on their admissibility. He cited United States v. Sasso, 59 F.3d 341 (2d Cir. 1995), which outlined three factors for a court to consider when assessing the probative value of a witness' mental health records (i.e., the illness, the temporal relatedness of the illness, and symptoms at the time of the event). Second, he asserted the circuit court erred by erroneously interpreting Arkansas' common law of evidence governing impeachment of a witness who has mental illness. He cited Mell v. State, 202 S.W. 33 (Ark. 1918), in which the Arkansas Supreme Court held that evidence of a witness' delusions was admissible to challenge her credibility. The state argued that Mr. Collins' right to cross-examine Ms. Jackson was limited by the psychotherapist–patient privilege under Rule 503.

Ruling and Reasoning

The Arkansas Supreme Court affirmed Mr. Collins' conviction and sentence, stating that the circuit court did not abuse its discretion by not allowing Mr. Collins to impeach Ms. Jackson with extrinsic evidence of her mental illness.

Regarding Mr. Collins' first argument, the court ruled he did not request that the trial court examine the mental health records prior to rendering its ruling. Citing Stewart v. State, 423 S.W.3d 69 (Ark. 2012), the court stated an appellant is bound by the arguments made at trial and cannot expand those arguments on appeal. Because Mr. Collins raised this request for the first time on appeal, it was not preserved for review.

Regarding Mr. Collins' second argument, the court stated that the witness in a criminal case does not waive her privilege under Rule 503 by testifying because the state, not Ms. Jackson, is the party in a criminal proceeding (relying on Johnson v. State, 27 S.W.3d 405 (Ark. 2000)). The court ruled that, even if the exclusion of the proffered records was erroneous, any resulting error was harmless. The court noted an evidentiary error is harmless if the error is slight and the evidence of guilt is overwhelming (citing Johnston v. State, 431 S.W.3d 895 (Ark. 2014)). It noted that the error in refusing to allow these records to be admitted, if any, was slight because Ms. Jackson's credibility was challenged by other evidence, such as inconsistencies in her prior statements and her criminal history. The court also stated there was overwhelming evidence of Mr. Collins' guilt through Mr. Bailey's testimony and other corroborating physical evidence.

Justice Josephine Hart offered the only dissenting opinion. She disagreed with the majority on each point of the ruling and opined that the circuit court abused its discretion. She argued that the conviction should be reversed and remanded for a new trial.