Appeal from Clark Circuit Court; J. Hugh Lookadoo, Judge; affirmed.
1. EVIDENCE - LAY WITNESS - OPINION TESTIMONY ON COMPETENCE. - A lay witness can testify to an opinion as to the competency of another if he or she has had an adequate basis for forming an opinion.
2. APPEAL & ERROR - REVIEW OF DECISION ON ADMISSION OF LAY TESTIMONY ON COMPETENCY. - The trial judge will be reversed only if he has abused his discretion in passing upon the preliminary
The opinion of the court was delivered by: Steele Hays, Justice.
Freida Ann Phillips has appealed from her conviction of the first degree murder of her son, David. The disputed issues were the element of premeditation and whether Mrs. Phillips was capable of distinguishing between lawful and unlawful conduct and conforming her behavior to the requirements of the law.
The state proved that David Phillips, a two year old male, died by drowning. Mrs. Phillips reported to the police that she had put her son down for his nap and later in the afternoon she discovered that he was missing. After some hours spent investigating the possible whereabouts of the child, Mrs. Phillips led police to the Davidson Campground where `David's body was found in one of the cabins. Mrs. Phillips explained that she had left David briefly in the bathtub and when she returned he was under water. Unable to revive him, she took his body to the campground where it was later found. [293 Ark Page 590]
Mrs. Georgia Pipkin testified that she had known Freida Phillips for about fifteen years. She was Mrs. Phillips's close friend and confidant. Mrs. Phillips told Mrs. Pipkin she was unhappy and depressed when she learned that she was pregnant, that she hated the child and her life since his arrival, that she prayed that David would die. The witness testified to chronic neglect of David and to a number of attempts by Mrs. Phillips to choke him, suffocate him or force objects down his throat. Mrs. Phillips told Mrs. Pipkin that she would kill david but for fear of getting caught. Mrs. Pipkin's repeated efforts to get Mrs. Phillips to discuss these feelings with her husband and her psychiatrist, Dr. Stuart Harris, went largely unheeded. Mrs. Pipkin testified that Mrs. Phillips was devoted to her older two children, but after David's arrival was depressed and irrational. She said she had reported the situation to the SCAN office.
Mrs. Phillips testified in her own behalf. She described periods of acute depression, requiring hospitalization. She maintained that she had exaggerated her mistreatment of David in her talks with Mrs. Pipkin, that she did not actually do all she said she had done in connection with David, in her depressed state she only wanted Mrs. Pipkin to feel as bad as she did. She told of putting David in the bathtub and contemplating the unfinished housework. She said the next thing she remembered was David under the water. The gist of her testimony was that she may have put David in the tub, "I don't know if I held him under. I just don't know. I had my hands on him and he was struggling and I pulled him out after he was dead."
Dr. Stuart Harris and Dr. Douglas Stevens testified on behalf of Mrs. Phillips that they diagnosed her condition as severe depression with psychosis, rendering her incapable of distinguishing between right and wrong or conforming her behavior to the requirements of the law.
In addition to the expert witnesses, the defense called Mrs. Beverly Bridges, a friend of Freida Phillips for some eight years. She said Mrs. Phillips had been active and involved in their church, serving for several years as vice president and then as president of the Young Methodist Women. Mrs. Bridges described the depression which accompanied Mrs. Phillips's pregnancy, how Mrs. Phillips made no preparations for the arrival of [293 Ark Page 591]
the baby and of her indifference to her son after his birth. Mrs. Bridges was asked if, having observed Freida Phillips over this entire period of time, she had formed an opinion as to whether she was mentally competent. At this point the state objected and the trial judge stated that he would sustain the objections "based on your questions up to this point." Counsel for the defendant asked that his exceptions be noted and passed the witness for cross-examination.
[1, 2] We are asked to reverse on the single issue that it was error to refuse to allow a lay witness, Mrs. Bridges, to give her opinion as to Mrs. Phillips's mental condition. We have held in an unbroken line of cases extending back for decades that a lay witness can testify to an opinion as to the competency of another if he or she has had an adequate basis for forming an opinion. Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986). A.R.E. Rule 701. The rule was summarized in Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980):
It is well established that a nonexpert witness may testify as to the sanity of a defendant if a proper foundation is laid; however, the trial court should exclude the opinion testimony of a nonexpert witness whose association with the accused and opportunities for observation for a sufficient length of time are not adequately shown. Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977); Raprich v. State, 192 Ark. 1130, 97 S.W.2d 429 (1936); and Davis v. State, 182 Ark. 123, 30 S.W.2d 830 (1930). The trial judge will be reversed only if he has abused his discretion in passing upon the preliminary question of competency. Raprich v. State, supra. See also Rule 701, supra.
 Whether the objection was sustained because the trial court felt a sufficient foundation had not been laid is not disclosed by the record, although it would seem that Mrs. Bridges's close association with Mrs. Phillips and her family over eight years both before and after the birth of David, provided ample foundation for an opinion. The state points out that there was no proffer of Mrs. Bridges's opinion as to the competency of Mrs. Phillips, although arguably the answer was apparent from the context within which questions were asked. A.R.E. Rule 103(a)(2). Assuming Mrs. Bridges would have testified that in [293 Ark Page 592]
her opinion Mrs. Phillips was not mentally competent, we are satisfied no substantial prejudice ...