Cooper v. StateCooper v. State
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Aрpellant Austin Cooper was convicted of raping his minor daughter, A.C., who was below the age of fourteen, in violation of
On May 6, 1993, Cooper was tried on the rape charge. A.C., who was 13 at the time of the trial, testified that Cooper had sexual intercourse with her at least five times during the period in question. He told her that he could make her have a “bad accident” if she told anyone. N.C., the victim’s eleven-year-old sister, testified that she had seen her father place his finger and penis in A.C.’s vagina on separate occasions. Dr. Russell Mayo testified that A.C. informed him she had been sexually molested by her father for four years. Based on his examination, he determined that A.C. had had sexual intercourse and that she had Trichomonas Vaginitis, a sexually transmitted disеase. Teresa Smith, A.C.’s mother who was married to Cooper at the time of the rapes, testified that she had Trichomonas Vaginitis at the same time that her daughter did. No proof was presented that Cooper had the same disease.
The jury found Cooper guilty of rape and after receiving evidence of more than four prior convictions sentenced him to life imprisonment.
I. HEARSAY
Cooper first contends that the trial court errеd in allowing Teresa Smith to testify
DEFENSE ATTORNEY: At that particular time did Austin not confront [A.C.] with thesе allegations and ask her specifically to tell you that he did not do anything to her and didn’t she respond that he had not done anything to her?
SMITH: He asked her had he been messing with her and she lowered her head and said, no, while hе was in the room.
DEFENSE ATTORNEY: Has she not made that same response to other people that inquired?
SMITH: Not to my knowledge.
DEFENSE ATTORNEY: Has she not told her brother that the allegations were not true?
SMITH: Not to my knowledge.
DEFENSE ATTORNEY: Jeremy?
SMITH: I have not heard that.
On redirect examination, the prosecutor asked Smith if A.C. dеnied that Cooper had done something to her after Cooper left the room. Defense counsel objected, and the prosecutor responded that defense counsel had opened the door to this inquiry and that the mother’s testimony was not offered for the truth of the matter asserted but to show consistency with the victim’s statement. The trial court overruled the objection, and these questions and answers followed:
PROSECUTOR: Again, what did she say after her father left the room?
SMITH: She said, “Moma, I promise it’s true.”
PROSECUTOR: What did she say was true?
SMITH: That he had been abusing her, sexually.
By the defense counsel’s cross-examination, it appears clear that he was implying that A.C. fabricated the charge against Cooper because she had told no оne else about it. Ordinarily, evidence of a prior consistent statement by the declarant is not admissible to bolster the credibility of the declarant because it is hearsay. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993); Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). Rule 801(d)(1)(h), however, carves out an exemption from that general rule when an implied charge of recent fabrication has been made:
A statement is not hearsay if:
(1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive,....
Because defense сounsel cast doubt on the veracity of A.C.’s allegations against Cooper and since A.C. was subject to cross-examination concerning the statement at trial, the trial judge correctly ruled that the prosecutor could ask Teresa Smith about A.C.’s prior consistent statement. Henderson v. State, supra.
Moreover, Cooper’s defense counsel without question opened the door for the prosecutor’s continued questiоning about who A.C. had told about these allegations. Fairness dictates that the prosecutor be allowed to explore this area of inquiry to clarify any confusion or misapprehension that may have lingered in thе jury’s minds from defense counsel’s examination. We find no abuse of discretion by the trial judge in permitting the prosecution to go forward with the inquiry. See Dillon v. State, No. CR 93-1068 (June 20, 1994); Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993); Spohn v. State, 310 Ark. 510, 837 S.W.2d 873 (1992).
II. RECUSAL
Cooper next alleges prejudice in that thе trial judge was the prosecutor for two of the prior convictions used to enhance his prison sentence. He asserts that the trial judge’s personal knowledge of some of the facts involved in his prior convictions required his recusal under Canon 3.C.l(a) of the Arkansas
This argument is wholly without merit. We have held that a trial judge need not recuse simply because that judge previously prosecuted an appellant which resulted in the felony convictions relied upon for enhancement purposes. See, e.g., Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988); Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982). That is the precise situation we have here, and Cooper has demonstrated no additional basis for recusal.
III. CALIFORNIA ARREST
The third point raised is that evidence of the California arrest prejudiced Cooper because there was no evidence that he left Arkansas to avoid prosecution. He contends that an absence of flight on his part is shown by the fact that he waived extradition from California to Arkansas.
Cooper’s suggestion that his being in California did not constitute еvidence of flight ignores the fact that there was testimony that he went to California after being accused of rape and after being thrown out of his house. Cooper denies that he knew that he was accused оf rape, but this was an issue for the jury to resolve. This court has held that evidence of flight to avoid arrest may be considered by the jury as corroborative of guilt. See Kill-crease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992); Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990); Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987). It was not error for the trial judge to allow this evidence.
IV SEXUAL HISTORY
Cooper’s fourth claim of error is that the trial judge erred in refusing to allow him to question the victim concerning her sexual history. He concedes that the Rape Shield Act (
An in camеra hearing was held on Cooper’s motion requesting permission to explore other possibilities of how A.C. contracted the disease. The trial judge denied the motion on the basis of the general proscriptiоn in the Rape Shield Act against using prior sexual conduct to attack the credibility of the victim or to prove consent or any other defense.
V REQUEST FOR NEW COUNSEL
For his final point, Cooper contends that the trial judge denied him effective counsel by refusing to appoint new counsel for him at trial. During voir dire, Cooper gаve the judge a handwritten request for defense counsel’s removal which alleged that he had been successively represented in this matter by Thomas Potter, Wren Autrey,.and now his present appointed counsel, Charles Potter, and that he had only met with Charles Potter once the day before trial for
A grant of new defense counsеl would have postponed the trial. This court has held that once competent counsel is obtained, any request for a change in counsel must be considered in the context of the public’s interest in the prompt dispensation of justice. Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991); Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). The refusal to grant a continuance in order for the defendant to change attorneys rests within the discretion of the trial judge, and the decision will not be overturned absent a shоwing of abuse of that discretion. Clay v. State, supra. In Clay, we held that the trial judge had not abused his discretion by denying a motion for continuance when, just before trial, the defendant decided he wanted a different attorney. In the instant case, Cooper has failed to offer any basis for a claim of abuse of discretion.
Further, in order to show that his attorney was ineffective, Cooper must show that counsel’s performance was so deficient that the counsel was not functioning as such in contravention of the Sixth Amendment. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). Secondly, he must show that he was so prejudiced by the defense as to be deprived of a fair trial. Id. Cooper made no showing of ineffectiveness short of a general allegation that no witnesses were called in his defense. We do not consider the issue of ineffective counsel to have been appropriately raisеd or developed at trial, and for that reason we will not consider it on direct appeal.
The record in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) for errors prejudicial to Cooper which could warrant a reversal. No such errors have been found.
Affirmed.
Notes
The Arkansas Code of Judicial Conduct was revised in loto by per curiam order dated July 5, 1993.