*1 thаt the Rule on for a subject dismissal provides Federal reason written with and states the our rule was as it prejudice is. Purtle, to state hereby
I am authorized J., joins this concurrence. Herbert KELLENSWORTH v. STATE Arkansas
John CR 631 S.W. 82-1 of Arkansas Court Supreme March delivered Opinion Opinion [Supplemental Rehearing April on Denial of 19, 1982.] delivered *3 Coulson, for appellant. and Beth G. L. Gene Worsham Burns, Clark, Gen., Asst. Atty. Alice Ann Atty. by: Steve Gen., for appellee. Kellensworth, Hickman, Darrell Herbert Justice. John imprisonment and sentencеd to ten years was convicted
Jr. three The crimes occurred burglary. for for years Arkansas, jury was tried to a Pulaski but case County, of prejudice nearby Perry County preclude any possibility publicity. to the defendant because pretrial because the Kellensworth’s conviction must be reversed testimony certain trial court erroneously permitted The called her after the former wife. State was to testimony rested and sole of her purpose Kel- and his parents. testimony by impeach “wor- that Kellensworth lensworth’s mother had testified his former child. cross-examination wife and On shipped” Kellensworth and his testified that Kellensworth father wife, loved his former Kellens- former wife. The Vickie worth, allowed that Kel- to rebut this by testifying lensworth, times, hеr, tried at various a on to run gun pulled road, wall, her and on off the knocked a brick up against her occasion struck her. separate The trial because he judge admitted more considered it rebuttal evidence. But it was than simple merе rebuttal It was offered to or impeach, discredit, parents. Kellensworth and his
A witness cannot be on a collateral matter impeached calling another witness to contradict of the 1001; first witness. 3A ON WIGMORE EVIDENCE § State, Swaim v. S.W. (1974); See 2d 706 Haight v. 259 Ark. (1976); S.W. Mathis Ark. App. (1980). 591 S.W. 2d 679 reasоn for the rule is that to such a would tactic permit only issue, distract from the main waste time and prejudice a defendant. McCORMICK’S EVIDENCE 47§
The rule does not mean witness can be dis- never *4 credited aon collateral matter. is Cross-examination instances, usual tool available. Or in some judicial notice can be taken of a fact which will contradict of a witness. of question whether the matter was collateral in
this case is not easy. One test whether of a fact is collateral is whether the fact is independently the fact provаble. If is independently provable it not collateral. Generally, two kinds of meet facts this test: Those that are relevant to the issue in bias, substantive the case and those facts that show interest, crime, conviction of a or want of caрacity, oppor- or tunity, knowledge of the witness. 3A WIGMORE ON EVIDENCE 1005. The mother’s does not §§ seem to fall into either and is category therefore collateral.
256 most, be mother would one of
At the statement character,” to any a fact defendant can choose “good рlace 28-1001, Ann. Rule 404 jury. (Repl. before a Ark. Stat. § (1980). In Finnie S.W. 32 1979); not be deemed might narrow sense evidence 28-1001, Ann. Rule a permits collateral. Stat. § but that defendant to offer evidence character good of evidence is limited to as to his and reputation directly be chal opinion may Such evidence U.S., lenged cross-examination. Michelson v. through U.S. 469 Or the State can rebut the in evidence kind with of But the State cannot contrary evidence reputation. witnesses to acts of misconduct. testify specific to produce “ . . . The witnesses for EVIDENCE states: McCORMICK’S are limited on direct their witnesses prosecution [of to assertions about the reputation called rebuttal] or thereof.” to acts rumors testify particular may Also Ark. L. see Rev. EVIDENCE 192. MсCORMICK’S § or a character (b) 14. Rule 405 that when character provides defense, or element claim charge, trait is an essential of be of instances of misconduct. But specific made proof may an element of a the evidence offered is not essential obviously toa trait of rape. (a) (1) “pertinent Rule charge speaks is no character trait at issue in this character.” But there such identifies character traits McCORMICK’S EVIDENCE case. are ones of moral or nonmoral. The nonmoral traits as either care, character traits skill or the moral competence, sanity; and the like. McCORMICK’S honesty being peacefulness, only of Evidence mention Our Rules EVIDENCE 187. § as a trait, (2), Rule but do not exclude (a) peacefulness In our it is not character traits. accepted judgment generally said, we if one’s wife. As trait to “worship” character as a statement of such a statement might qualify anything, that. to The State chose only good general, character in а unaccept statement general completely disprove former wife to tell the called Kellensworth’s they able way; tes contradict acts misconduct specific *5 “worshipped” of the mother that Kellensworth timony effect оf the tes child. The prejudicial former wife and another with a Threatening denied. cannot be timony criminal are both another striking and deadly weapon So, the whether the statement offenses. regardless collateral, in wrong permitting the cоurt was mother was togo jury. evidence to prejudicial The other issues are raised Kellensworth without merit. that It it was error for the State to allow the argued victim to that she had testify identified Kellensworth at a because lineup she admitted that shе never saw pretrial face. The defense that reasons such an identification was too But at a improbable. pretrial lineup the victim out picked Kellensworth because his posture, hair, and build. A voice identification was conduсted at which the victim could see in the speakers. Each man several lineup spoke that phrases victim said were her spoken by assailant. The victim identified positively Kellensworth’s voice as that of her assailant. Identification was thе issue in this case and the victim was cross- closely examined about her pretrial identifications of Kellensworth. we held that a Recently victim can tell the she identified in her assailant a pretrial lineup. Conley S.W. There 2d was no error in allowing thе testimony.
A victim of another was allowed testify during to State’s case in chief her that Kellensworth was assailant. was called during She the State’s in testify case rebuttal to she had identified in a in lineup Kellensworth voice identification also procedure. State called a detective in rebuttal who testified that this victim in the had separate rape case positively identified Kellensworth as her assailant. This evidence had not been out brought chief, the State’s case during argues wаs, therefore, rebuttal improper Again, identi fication critical issue this case and Kellensworth had testified after the victim’s testimony that he was not her attacker, evidence of an alibi. offering Rebuttal is discre matter with the court tionary and wе cannot say that discretion was abused. Decker v. 255 Ark. S.W. (1973); See Stat. Ann. 1977). 43-2114 (Repl. § Before the victim the separate rape was allowed *6 258 defense her assailant the Kellensworth was that
testify case for no relevance to the tetimony had objected was testimony The was tried. being which Kellensworth The trial court on the issue identification. allowed of solely of two rapes because the circumstances the concluded that alike, should be the other victim very permitted were much v. we said in Tarkington Indeed 250 testify. to 972, evidenсe is admissible. that such (1971), S.W. 2d However, S.W. 398 Norris issue it is not raised on appeal. we do not reach that because the wrong the is not that court was objection On appeal victim, that it in the evidence the other but permitting the jury was in instruction to giving cаutionary wrong before because it called undue attention to the testimony the because the instruction amounted to a evidence. instruction comment on the The reads: The shall admit of another event that Court find to be the one in the you similar may charged to. Information. You will be to convict the permitted not defendant such Such evidence of upon another similar event committed under similar circum- stances is admitted for the of establish- solely purpose ing the of the defendant. And should identity you consider such evidence purpose for this alone. Whether the events are is for The you two similar to decide. is not on any defendant trial for offense the except offenses the Information. alleged the In does this instruction make comment on way no Art. Arkansas facts of of the Constitution. violation 23§ It it to be jury ought tells the what told simply regardless sole the the of a defendant: That the objection purpose determine were is to whether two rapes facts. thе same decides the person. committed by if On remand insists the to AMI 301. Compare call court not instruction because it will give should evidence, undue it should be attention to given. residence from the some distance was found cap A ski A away. blocks it sеveral was Apparently victim. after the shortly on the scene testified he was policeman dew on the there was dry when cap incident *7 an were examined cap found the Four hairs ground. to Kellensworth’s. were similar they testified who expert not could the victim is that since argument The admitted. court been it should have cap, the identify 28-1001, Ann. we Ark. Stat. agree. it relevant and found § 1979). (Repl. Rule 401 in an- charges that the
Finally, argues 81-57, Kellensworth, case, must be other State v. Case #CR against because the victim in the case testified dismissed trial; victim positively him in this that was the who it to double him. Kellensworth amounts argues identified does if he is tried on that Double charge. jeopardy jeopardy of is no conviction. Ark. possibility not attach where there The no argument merits (Repl. 1977). Stat. Ann. 41-107 § further discussion.
Reversed and remanded.
Hays, dissents. J., Hays, the Steele I do not that dissenting. agree Justice, trial abused its the rebuttal permitting court discretion wife to his conduct appellant’s of former relative testimony initiated, prosecu- toward her. The was not by in repeated tion the defense to questions appellant’s but by behavior and conduct toward appellant’s mother as to an The obvious was to create purpose wife and son. adoring was an appellant impression by other is possible. father. No inference devoted husband and to is entitled some latitude occurs the State Where that evidence with facts from which other rebut kind of Otherwise, drawn. prosecution inferences could be elicits affirmаtively rendered where helpless of in a character the accused which portrays not collateral and the means false light. 259-A which State answered it in rebuttal falls within the court,
“wide discretion” the trial which we will not Shipman reverse absent manifest abuse. v. (1972);City Fayetteville Stone, S.W.2d 106S.W.
Supplemental Opinion on Denial Rehearing April delivered *8 petition Hickman, The State in its Darrell Justice. rehearing argues for case of Howell v. (1920), directly point 217 S.W. 2d and testimony brought impeach holds that the State can on direct examination with out contradictory tеstimony. In Howell the victim in a on case stated direct examination she had never had sexual intercourse any except with allowed to mony man defendant. defense was not
impeach testimony by offering this the testi- pointing error, of anothеr man. heldWe this was brought up out that the State on issue direct exam- ought ination, did, and since it the defense to be allowed impeach contradictory testimony. it with If the counterpoint of that situation existed in this case it would have as been follоws: Kellensworth would have stated on direct examination that he had never his mistreated wife any byway striking beating her her. In or Howell the testimony was not that victim or was chaste had reputation chastity, permitted for an issue to be raised in days, those but was that the victim herself had never had anyone except with intercourse the defendant. The state- by party by ment was not made a third but the victim general herself. In this case the statement was a statement
259-B only have been best could mother at sрecific general character, opinion as to a statement instances of Furthermore, good State elicited conduct. his on cross-examination father from Kellensworth wife; treated about how during subject the direct never raised Due to these differences examination of these witnesses. distinguishable. we deem Howell supra,