Othа Lee Conley was convicted of burglary, kidnapping, aggravated robbery, and two counts of rape. He was sentenced by the Pulaski County Circuit Court to a total of 120 yeаrs imprisonment. On appeal he argues that four errors were committed during his trial: The judge failed to excuse a prospective juror for cause; an instruction was improperly denied; the defendant was denied a speedy trial; and, the defendant was twice placed in jeopardy.
The testimony reflects that early on the morning оf July 24, 1978, Conley entered a Little Rock residence, forced a twenty-one year old female at knife-point to leave the residence, raped her three times, twice by sexual intercouse and once by forcing her to perform an act of oral sex on him. (He was only charged with two counts of rape.)
The first error alleged in that the judge failed to excuse for cause a prospective juror who indicated bias. When questioned, the prospective juror said he knew of a similar rape case where the defendant was “let off’ and this could affect his judgment. He indicated that it would be hard for him to be unbiased and if it came to a fifty-fifty proposition he did nоt believe that he could lean toward the defendant. After these statements were made the trial judge questioned this venireman and somewhat rehabilitated him, denying a motion to dismiss for cause. The defense excused this prospective juror, using one of its peremptory challenges. This prospective juror should have been excusеd for cause. The candid answers could not be overcome by routine responses, upon prompting by the court, to the effect that the evidence could be fairly weighed. While a trial court should never hesitate to clear up uncertainties created by voir dire examinations, there is a point beyond which a prospective juror cannot be rehabilitated. This was one of those cases.
Despite the judge’s failure to excuse, Conley’s counsel accepted the twelve jurors who were ultimately seated; he had exhausted his peremptory challenges but he made no showing at all that he was forced to accept any juror against his wishеs. In two cases exactly on point we found no reversible error when a peremptory challenge was used and the record failed to disclose that an undesirаble juror was forced on the objecting party. Arkansas State Highway Comm. v. Dalrymple,
The second argument to us is that the trial court imprоperly refused to give an instruction approved by the Court of Appeals for the District of Columbia in U.S. v. Telfaire,
TOhe trial court did not err in rejecting this particular instruction even if it is a correct one. . . . The [Per Curiam Order of April 19, 1965] . . . implicitly requires the parties to request an applicable AMI (modified if necessary) or, upon tendering a substitute instruction to state into the record the reasons for which they believe that the AMI is inadequate or inaccurately states the law.
In aрproving the Arkansas Model Criminal Instructions in a Per Curiam opinion issued January 29, 1979, we said:
If Arkansas Model Criminal Instructions (AMCI) contains an instruction applicable in a criminal case, and the trial judge determines that the jury should be instructed on the subject, the AMCI instruction shall be used unless the trial judge finds that it does not accurately state law. In that event he will state his reasons for refusing the AMCI instruction. Whenever AMCI does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when an AMCI instruction cannot be modified to submit the issue, the instruction on that subject should be simple, brief, impartial, and free from argument.
At Conley’s trial the court gave standard instructions on reasonable dоubts and credibility of the witnesses. The victim testified that she was with her assailant for a period of approximately one hour, recognized his voice, and had an opрortunity to see him. The defense counsel was able to argue to the jury the lack of accuracy and the weight to be given to her identification testimony.
The test to be applied in a criminal case on whether it is error to refuse an instruction was recited in Henderson v. Kibbe,
Conley also argues that the case should have been dismissed because he was denied a speedy trial. Actually, the argument is based on a misconception of Rule 28.1(a), Arkansas Rules of Criminal Procedure. That rule provides that a criminal defendant may be released from jail if he is not tried within nine months; but the rule does not рrovide that he is entitled to an absolute discharge. Wallace v. State,
Finally, Conley argues that he was placed in double jeopardy because оf consecutive sentences imposed upon him. Actually, his argument is that his conduct was a continuing course of conduct and he could not be sentenced consеcutively for burglary, kidnapping, aggravated robbery, and two counts of rape. The test is whether the same act of transaction constitutes a violation of eaсh separate offense. Irby v. United States,
Conley’s argument that because the burglary and kidnapping charges each required a finding that a felony had been committed, this necessarily made a merger of these charges. This argument must fail. Obviously one can commit theft in conjunction with burglary and one can commit rape as well as kidnapping. They are distinct offenses for which one can be charged, convicted and sentenced.
Affirmed.